Delhi District Court
Cbi vs . Sri Chand Etc (Rose Marry Cghs) on 22 February, 2023
CBI vs. Sri Chand etc (Rose Marry CGHS)
IN THE COURT OF SH. ANIL ANTIL, SPECIAL JUDGE, PC ACT,
CBI-15, ROUSE AVENUE DISTRICT COURT, NEW DELHI
IN THE MATTER OF:
CBI Case No. 194/19
CBI Vs. Sri Chand Etc. (Rose Marry Ltd.)
CNR No. : DLCT11-000812-2019
RC No. 16(S)/2006/SCR-I/CBI/New Delhi.
U/S : 120B IPC r/w Section 420/468/
471IPC and Section 13(2) r/w Section (1)(d)
of PC Act,1988 and substantive offences
thereof.
CENTRAL BUREAU OF INVESTIGATION
VERSUS
1. Sri Chand
S/o Late Sh. Hari Singh,
R/o 274-A,Pocket-C,
Mayur Vihar, Phase-II.
New Delhi-91 .............................(A-1)
2. Anna Wankhede
S/o Sh. Parnuji,
R/o 148-E, Pocket A-2,
Mayur Vihar, Phase-III,
New Delhi-96 .............................(A-2)
3. Sushil Kumar Sharma
S/o Late Sh. Madan Lal Sharma
R/o Village Lalsa, Post Office Dansa,
Tehsil Rampur, Distt. Shimla,
Himachal Pradesh .............................(A-3)
4. Sohan Pal
S/o Late Sh. Durjan Singh,
R/o D-42, Harijan Colony,
Kondali, Delhi-96. .............................(A-4)
(proceeding abated against him due to his death
vide order dated 19.03.2018)
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5. S.Subramanyan
S/o Sh.M. Shanmugam,
R/o H.No.6, P.U. Shanmugam Street,
Gandhi Nagar Avadi,
Chennai-600054. .............................(A-5)
6. Harjeet Singh
S/o Sh. Harbans Singh,
R/o C-26, Shakti Apartments, Sector-9,
Rohini, Delhi-85, AND
1A/72, West Punjabi Bagh,
Delhi-110026 .............................(A-6)
7. Rupali Kukreja
w/o Sh.Balwinder Singh Kukreja,
R/o Flat No. 15, UCO Apartments,
Sector-9, Rohini, Delhi-85, AND
94, Bhagwan Bhudha Apartments, Parvana Road,
Pitampura, Delhi-110034 .............................(A-7)
8. Madhur Bhardwaj
S/o Late Sh. J.L. Bhardwaj,
R/o A-2/107, Ground Floor,
Sector-11, Rohini,
New Delhi-85, AND
8679, Pocket-C8, Vasant Kunj,
Delhi. .............................(A-8)
9. Pawan Kumar Sharma
S/o Sh. D.P.Sharma,
R/o H.No.1, Vaishali Enclave,
Pitampura, Delhi. AND
182, Kohat Enclave, Pitampura,
Delhi-110034 .............................(A-9)
10. Rakesh Kumar Girotra
S/o Late Sh. Inderjeet Girotra,
r/o B-109, Sangan Apartments,
Sector-9, Rohini,
Delhi-85. .............................(A-10)
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11. Rajesh Shorey
S/o Late Sh.O.P.Shorey,
R/o Flat no. 23, MIG Flats,
Milansar Apartments,
Peeragarhi, Paschim Vihar, New Delhi, AND
D-24, Second Floor, Lane No. 3,
Mahendru Enclave, Opposite Model Town-III,
Delhi-110009. .............................(A-11)
12. R.K. Srivastava
S/o Late Sh. G.S.Srivastava,
R/o G-12, Hudco Place,
Andrews Ganj, New Delhi, AND
E-3, Type-VI, Govt. Banglow,
ALTINHO, Panjim, Goa .............................(A-12)
Date of Institution : 06.01.2009
Arguments Concluded : 28.01.2023
Announced on : 22.02.2023
Final Outcome : (i)A-11 & A-12 stands
acquitted.
(ii) A-1, A-2, A-3 & A-5
to A10 stands
convicted.
JUDGEMENT
1. The prosecuting agency, CBI, charge-sheeted the above mentioned accused persons to face trial for having committing the offences punishable under Section 120-B IPC r/w Section 420, 468, 471 IPC and Section 13 (2) r/w Section 13(1)(d) of PC Act, 1988 as well as substantive offences thereof.
2. The case at hands relates to the alleged forgeries committed in the records of a Group Housing Society namely 'Rose Marry CGHS' Ltd ( earlier registered by the name of Sheel CGHS Ltd ) for its revival with the object to obtain land from the DDA at concessional rates on priority basis for developing Group CBI Case No. 194/19 3 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) Housing Society.
3. Charge-sheet reveals that the case was registered on the directions of Hon'ble High Court of Delhi passed on 02.08.2005, in Civil Writ Petition no.10066/2004 by directing the CBI to investigate the irregularities/illegalities in the matter relating to revival of 135 Cooperative Group Housing Societies.
4. Briefly, that during 1970-1980, or thereafter a number of group housing Societies which were registered and became defunt due to non fulfillment of mandatory provisions of Delhi Cooperative Societies Act, 1972 ( in short referred as DCS Act, 1972 and rules framed thereunder ) were wound up by Registrar Cooperative Societies ( in short referred as RCS ). Thereafter during the later part of 1990 and early 2000, the builders in connivance with the officials of RCS office got these Societies revived on false/forged/fabricated document to cause undue gain to themselves and others to seek land from Delhi Development Authority (DDA) on priority basis, and the Societies were thereafter recommended for allotment of land by DDA.
5. That in compliance thereto PE-EOU-I/2006-A0001 was registered by CBI on 02.03.2006 to inquire into the allotment of land in respect of five CGHS including Rose Marry Apartment CGHS Ltd.
6. That the investigation was carried out and on completion of the Preliminary Enquiry present case was registered vide RC No. 16(2)/0006/SCU-I/SCR-I/CBI/N.Delhi on 26.10.2006 under Section 120-B r/w 420/468/471 IPC and Section 13(2)r/w 13(1)(d) of P.C Act, 1988 and substantive CBI Case No. 194/19 4 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) offences thereof against accused Sri Chand and 11 other persons in the matter related to illegality committed into the affairs of 'Rose Marry Cooperative Group Housing Society'.
7. During investigation, it was revealed that on 26.12.1983 a Group Housing Society by the name of Sheel CGHS Ltd ( which lateron changed to Rose Marry Apartment CGHS ) initially with 57 promoter members, lateron increased to 75 was registered vide Registration no. 1174 on 26.12.1983 with the office of Registrar Cooperative Society, Parliament Street, New Delhi, with registered/official address at S-55, Greater Kailash II, New Delhi.
8. That Sh. Gulshan Kumar Datta, Sh.Vijay Kumar Bajaj and Late Sh. Sudeesh Nayar were the promoter President, Secretary and Treasurer of the said Society respectively.
9. That during investigation it was revealed that the RCS Office issued a number of notices under the Signatures of Sh. Satish Mathur, Sh. Ajay Kumar Singla, Officers of RCS to the Society for holding Special General Body Meeting to elect the Managing Committee within a specified period, but the Society failed to comply with the directions of the RCS office, the notices remained unanswered, and no such record was submitted, nor any information was furnished about the functioning of the Society.
10. That public notice was also issued on 20.05.1990 to the Society, but there was no response from the Society, and finally Sh. Satish Mathur, Deputy Registrar (GH) issued a Show Cause Notice vide No. F-47/1174/NGH/Co-op/1513 dated 08.04.1990 CBI Case No. 194/19 5 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) to the Society with ten days time to file reply to the same in terms thereof.
11. That no reply to the Show Cause Notice was submitted by the Society, and vide its order dated 10.09.1990, Sh. Satish Mathur, Dy. Registrar (GH) ordered for winding up of the Society with the observations that Society had failed to comply with the Rules and Regulations in terms of the DCS Act 1972 and Rules framed thereunder.
12. Investigation revealed that the accused persons entered into a criminal conspiracy somewhere in the year 2000 with the object to get the land from DDA on concessional rates by fraudulently reviving the aforesaid defunct Society on forged and fabricated documents.
13. The investigations revealed that in furtherance of the criminal conspiracy with other accused persons, accused Sri Chand got prepared fake/false forged proceedings of the General Body Meeting/Annual General Meeting/Elections and also forged resignations of the promoter members and enrollment of the new members (his relative) in the Society and submitted the same to RCS Office for its revival through his employees Anna Wankhede (A-2), Sushil Kumar Sharma (A-3) and his relative Sohan Pal ( since deceased).
14. That in pursuance of the criminal conspiracy accused Sushil Kumar Sharma (A-3), acting as the Hony. Secretary of the Society, addressed a letter dated 18.08.2000 to the then Registrar of the RCS Sh. R.K. Srivastava (A-12) stating that the Society was put under liquidation u/s 63 of DCS Act, 1972 for non-
CBI Case No. 194/19 6 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) compliance of some procedural formalities, and requested for revival of the Society inter alia raising a plea that no notice was issued to Society before putting it under liquidation.
15. That Society had changed its address from S-55, Greater Kailash Part-II, New Delhi to B-35, Sarvodya Enclave, New Delhi during the year 1987-1988 ; no notice was received by the Society at its new address at any point of time ; failing which reply to the Show Cause Notice was filed, and the Society was not aware of the liquidation proceeding and the orders so passed.
16. Investigation revealed that aforesaid accused persons in connivance with other accused persons fabricated the resignation of 12 promoter members on 05.10.1987 namely Hans Raj Chopra, Bhalender Singh Nayer, Yogesh Verma, Rachna Prashar, Ravi Bhushan Kalia, Ramadhar Sharma, Narender Kumar, Lajwanti Kumar, Gurbans Singh Sobti, Suresh Chander Choudhary, Ajay Singh Bora and Kamal Kishore, and 12 new fake members were inducted in their place.
17. That out of which nine members were related to accused Sri Chand (A-1), Anna Wankhede (A-2) and Sushil Kumar Sharma (A-3) and one Smt. Harpyari, wife of one Mohan Lal, the President of another Group Housing Society, where accused Sri Chand was also the Vice-President.
18. That forged letter of Sh. Vijay Kumar Bajaj, Secretary of the Society was prepared by appending his signatures notifying, vide letter dated 29.01.1988, that address had been changed from Greater Kailash to Sarvodya Enclave and that CBI Case No. 194/19 7 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) intimation in this regard was given to the Office of the RCS ; that in-fact, the office of the Society was never shifted to Sarvodya Enclave and its owner Shri S.Laxmi Narain during investigation of the case revealed to the CBI that said documents had been forged by accused Sri Chand (A-1).
19. Investigation further revealed that in pursuance to the criminal conspiracy, in order to defraud the original promoter members of the Society and to cover up their illegal designs, the name of the Society was also changed from Sheel Cooperative Group Housing Society to Rose Marry Apartment CGHS Ltd, on their application dated 27.11.2000 which was approved by accused A-12 vide his orders on 20.12.2000.
20. Investigation revealed that accused P.K.Thirwani, the Departmental Auditor, conducted the false audit of the Society from 1983-84 to 1999-2000 alongwith one Sh. Neeraj Kumar, Chartered Accountant and prepared forged documents such as Balance Sheet etc in regard to audit of the Society for the aforesaid period ; that accused Sushil Kumar Sharma had specifically visited the office of Sh. Neeraj Kumar, Chartered Accountant to get the false audit reports of the Society prepared for the aforesaid purpose.
21. That Sh. M.B. Sethi, Dy. Registrar (Policy) RCS vide letter no. F-47/19/NGH/Cooperative/Policy/2067 dated 03.10.2000 forwarded the approved list of 75 members of the Society to the DDA for allotment of the land ; on 02.11.2001, the offer-cum-allotment letter of DDA was received by President/Secretary of the Society and the Society was asked to CBI Case No. 194/19 8 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) deposit 35% of the land cost within 45 days.
22. That extension of time for making the payment vide letter dated 10.12.2001 was considered by DDA and further 90 days time was granted to the Society to make the deposit of 35% of the land cost.
23. That during this period Harjeet Singh (A-6) contacted Sri Chand (A-1) for membership of the Society and considering his request accused Sri Chand asked him to bring few more members for the Society to raise funds as DDA had offered land to the Society and the old members were not interested in running its affairs ; that 35% of the land cost was to be deposited with the DDA for which A-1 had already taken extension upto 28.03.2002, accordingly accused Harjeet Singh (A-6) took the membership of the Society and brought his six known new members to it.
24. Investigation revealed that thereafter accused Harjeet Singh took over the Management of the Society from Sri Chand and formed a new Managing Committee getting himself elected as the President, Rupali Kukreja (A-7) as the Secretary and one Madhur Bhardwaj (A-8) as the Treasurer.
25. That during this time Rs. 80 lakhs was deposited by Harjeet Singh (A-6) with DDA towards 35% cost of the land ; many of the old promoter members were shown to have resigned during their tenure, new members were inducted, and when the Society was not able to take possession of the land accused Harjeet Singh (A-6) alongwith his known members resigned from its membership.
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26. That accused Pawan Kumar Sharma (A-9) took over the Management of the Society from accused Harjeet Singh and formed a new Managing Committee with himself as President, Rakesh Kumar Girotra (A-10) as the Secretary and Rajesh Shorey (A-11) as the Treasurer.
27. Investigation revealed that by this time including the tenure of the Management Committee headed by Pawan Kumar Sharma (A-9) as President, all the initial 75 promoter members and 6 others had been replaced by new members on the basis of forged resignations ; that money was collected from the said new members and Rs.1,40,00,000/- was arranged through loan from Delhi Cooperative Housing Finance Corporation and deposited with the DDA towards the cost of the land.
28. That the land to the Society was originally allotted by DDA at Dhir Pur, but soil test failed and after litigation between Society and DDA, as per orders of Hon'ble High Court of Delhi, the DDA was directed to allot land to Society in Dwarka, Delhi.
29. Investigation revealed that in pursuance to criminal conspiracy accused Sri Chand (A-1) handed over Harjeet Singh (A-6) forged resignation letters of the promoter members besides getting prepared false balance sheet and other documents for the purposes of audit of the Society.
30. Investigation revealed that accused Sohan Lal (A-4) was never elected as President of the Society, and he acted in criminal conspiracy with Sri Chand (A-1), Anna Wankhede (A-
2), Sushil Kumar Sharma (A-3) and Harjeet Singh (A-6), to prepare duplicate and false records of the Society prior to the CBI Case No. 194/19 10 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) year 2000, as the original records were untraceable being in possession of one Sh. Sudesh Nayar, the then Treasurer of the Society and who unfortunately was no more alive.
31. Investigation further revealed that accused S.Subramanyam (A-5) was the Grade IV Inspector, LDC and alleged to have conducted investigation into the membership list of the Society and gave a false and fabricated report in regard to the resignation of 12 promoter members introduced in the year 1987.
32. Investigation revealed that accused Harjeet Singh, (A-
6), Rupali Kukreja (A-7) and Madhur Bhardwaj (A-8), further accepted the resignation of promoter members during their tenure which were forged and fabricated and were also within their knowledge.
33. That so far as accused Pawan Kumar Shama (A-9) Rakesh Kumar Girotra (A-10) and Rajesh Shorey (A-11) are concerned, they all are also alleged to have dishonestly accepted the false and fabricated resignations of five promoter members of the Society without actually verifying the factum of the resignation.
34. Lastly, accused R.K. Srivastava (A-12) is alleged to have acted in criminal conspiracy with other accused persons in not only approving the change of name of the Society but also by passing an order for revival of the defunct Society malafidely in disregard to the established procedure.
35. That based upon the material collected during the course of investigation, it has been concluded by the CBI that the CBI Case No. 194/19 11 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) accused persons, named above, entered into a criminal conspiracy with common object to get the defunct Society revived on forged and fabricated document to seek land at concessional rates on priority basis from the DDA to gain the property by unlawful means. And thus they all have also committed the offences punishable under Section 120-B IPC r/w Section 420/467/468/471 IPC & Section 13(2) r/w Section 13(1)
(d) of PC Act 1988.
36. Sanction for prosecution of A-5 and A-12 had been duly obtained and attached with the charge-sheet.
37. All the accused persons were summoned. Compliance of Section 207 Cr.P.C was made.
38. And after passing a detailed order dated 23.07.2011 on the point of charge by the learned predecessor of this court, the charges here under mentioned were framed against the respective accused persons :-
i) for the offence punishable under Section 120-
B/420/468/471 IPC and Section 13(1)(d) and Section 13(2) of the PC Act, 1988 against all the accused persons.
ii) for the offence punishable under Section 420/468/471 IPC besides also under Section Section 13 (1) (d) and Section 13(2) of the PC Act, 1988 against accused S.Subramaniam (A-5) ;
iii) for the offence punishable under Section 13 (1) (d) and Section 13(2) of the PC Act, 1988 and individual substantive charge for the offence punishable u/s 420 IPC CBI Case No. 194/19 12 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) against accused R.K. Srivastava (A-12);
iv) for the offences punishable under Section 420/468/471 IPC against remaining accused persons A-1, A-2, A-3, A-4, A-6, A-7,A-8, A-9, A-10 and A-11 separately and individually.
39. Accordingly, separate charges for the aforesaid offences were framed against all the accused persons to which they all pleaded not guilty and claimed trial.
40. Accused Sohan Pal (A-4) had expired after framing of charge and therefore the proceedings against him stood abated in view of the orders dated 19.12.2016.
PROSECUTION EVIDENCE
41. Prosecution in support of its case has examined 44 witnesses which can broadly be classified under following heads in terms of the facts intended to be proved by their testimony.
(I) Persons who became members of the Society in the year 1982-1983 but denied their purported signatures on the membership application form(s) and affidavit(s) to be in their name(s) :-
i) PW-1 Smt. Ayodhya Devi ;
ii) PW-4 Sh. S.Arinder Singh Wadhwa ;
iii) PW-5 Sh. Ravi Bhushan Kalia ;
iv) PW6 Sh. Ramesh Kaul ;
v) PW-7 Sh. Shobi Sahni ;
vi) PW-8 Sh. Hemant Kumra ;
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vii) PW-9 Smt. Mamta Goswami ;
viii) PW-10 Sh. Ashok Chawla ;
ix) PW-11 Smt. Leena Nayar ;
x) PW-12 Sh. Kamal Kishore Kumra ;
xi) PW-13 Sh. Jaspal Singh Sethi ;
xii) PW-14 Sh. V.K. Bajaj (initial office bearer)
xiii) PW-15 Sh. Rachna Parashar and
xiv) PW-16 Smt.Saraswati Rickye.
(II). Persons who never became member of the
Society, but are shown to be the members of the Society, and have denied their signatures appended on the application form(s) / affidavit(s) etc :-
i) PW-2 Sh. Bawar Pal ( relative of Sri Chand )
ii) PW-3 Sh. Vinod Kumar (Relative of Sri Chand)
iii) PW-23 Sh. Laxmi Narayan (Relative of Sri Chand)
iv) PW-25 Sh. Surender Garg(Relative of Sri Chand)
v) PW-27 Smt. Harpyari ( Relative of Sri Chand )
vi) PW-28 Sh. Mohan Lal ( Relative of Sri Chand )
vii) PW-32 Smt. Veena ( Relative of Sri Chand )
viii) PW-33 Sh. Kailash Chand (Relative of Sri Chand )
ix) PW-35 Sh. Patras ( Relative of Sri Chand )
x) PW-40 Sh. Mukesh Kumar ( Relative of Sri Chand ) All these witnesses - (II ) are the relatives of accused CBI Case No. 194/19 14 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) Sri Chand (A-1).
(III). Witnesses from RCS Office
i) PW-20 Sh. Ajay Kumar Singh ( then Asstt.
Registrar),
ii) PW-21 Sh. V.C. Jain ( Asstt. Registrar-Retired),
iii) PW-24 Sh. Surender Kumar Garg ( Asstt.
Registrar ),
iv) PW-29 Sh. P.K.Thirwani ( Sr. Auditor )
v) PW-30 Sh.Niranjan Singh (Dealing Clerk )
vi) PW-36 Sh. P.N. Manchanda ( Asstt. Registrar )
and
vii) PW-37 Sh. Yogi Raj ( Asstt. Registrar ).
(IV). The witnesses from DDA Office
i) PW-22 Sh. K.G. Kashyap ( Dy. Director )
ii) PW-34 Sh. Virender Singh Verma ( Dealing
Asstt.)
(V). Officials from CBI Office
i) PW-38 Sh. Vijay Kumar ( Preliminary inquiry
officer)
ii) PW-42 Sh. R.S. Chikara ( IO of the case )
(VI). The GEQD witness
i) PW-43 Sh. S. Shah
(VII). Sanctioning Authority
i) PW-31 Sh. S.G.Mulchandani - accorded sanction to
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prosecute accused Mr. R.K. Srivastawa and ,
ii) PW-44 Sh. U.K. Worah - accorded sanction against accused S.Subramanyam.
(VIII) Other witnesses : -
i) PW-17 Sh. Keshav Prasad (Oath Commissioner)
ii) PW-18 Sh. Awanish Kumar ( Stamp Vendor )
iii) PW-19 Sh. Ravi Robinson ( Clerk-cum Typist
attached with PW-18)
iv) PW-26 Sh. Neeraj Kumar (CharteredAccountant)
v) PW-38 Smt Suneet Bala (DDU Official where
A-5 was employed) and
vi) PW-41 Sh. Rajender Garg ( Bank Official
(DSCB).
42. After closure of the prosecution evidence statement of accused persons under Section 313 Cr.P.C were recorded accordingly.
43. Brief of Statement of accused persons recorded u/s 313 Cr.P.C.
44. Accused Sri Chand A-1 in his statement denied the allegations of prosecution and feigned ignorance about the deposition of witnesses, who are relatives of him in one way or other ; and with respect to GEQD opinion, he submitted that the opinion is unscientific and moreover, it is biased and prepared at the behest of CBI.
44.1 He also denied his specimen and/or admitted
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handwriting and signatures taken by the IO during
investigations.
44.2 He further stated that he has been falsely implicated
in the present case ; no witness has deposed against him ; PW-35 Sh. Patras is an interested and biased witness, unworthy of any credit. There is nothing against him in the entire case put up by the prosecution and that he is innocent and has been falsely implicated.
45. Accused Anna Wankhede (A-2) also denied the case of prosecution and submitted that none of the witness has deposed against him. That accused Sri Chand (A-1) and PW-28 were the Vice President and President of Society namely Naval Technical CGHS (NTO CGHS) respectively, and in the meetings of the said Society, he occasionally used to serve Tea/Coffee and do other miscellaneous work for the guests especially meetings held on Saturday and Sunday.
45.1 He further stated that his name has been misused in the proceedings before the RCS Office as well as in the alleged documents of the Society. He also disputed the GEQD opinion stating it to be totally biased and unscientific ; he denied having ever given any specimen or admitted writing and signatures to the IO.
45.2 He stated that no witness has deposed against him ; that he was not the beneficiary ; there is absolutely no incriminating evidence against him, that he is innocent and has been falsely implicated in the present case.
46. Accused Sushil Kumar Sharma (A-3) denied the CBI Case No. 194/19 17 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) case of prosecution and his knowledge to the facts as deposed by the witnesses in the present case. He admitted that PW-28 was a member and President of NTO CGHS and accused Sri Chand A-1 was its Vice-President, and he had worked as a Field Boy in relation to the affairs of the said Society.
46.1 With respect to his specimen signatures exhibited as Ex PW-42/Z5 (colly.) and GEQD opinion, it is stated that it is manipulated document ; the GEQD opinion is false without being supported by reasons for its opinion and that it is prepared at the behest of the CBI officials and can not be relied upon for any purpose.
46.2 He stated that no witness has deposed against him ; he is innocent, not the beneficiary, it is a false case and his name has been misused by some unscrupulous persons.
47. Accused S. Subramanyam (A-5) also stated that he has no knowledge regarding the facts deposed by the witnesses in the present case. He stated that he gave his Audit Report as per the directions of the then Assistant Registrar RCS in terms of the notings, who accepted his report and no objections were raised by him at any point of time.
47.1 He stated that he has been falsely implicated without their being any criminality in his acts ; no witness including the RCS office has deposed adversely against him ; there is no evidence of undue benefit to him. He stated that he had not violated any provisions of DCS Act or Rules framed thereunder. No departmental or vigilance inquiry was initiated against him and he is innocent.
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47.2 In his additional statement he further stated that Sh.
U.K. Worah, PW-44, the then Registrar Co-operative Society was not the competent authority that could have removed him from the services as he was working under the Controller General of Defence Accounts, Delhi and posted at Chennai when the FIR in the present case was registered.
48. Accused Harjeet Singh (A-6) denied the allegations of prosecution and submitted that he has been falsely implicated in the present case ; none of the witness has deposed against him except the IO, who has done the partial investigation with malafide and biased intention to implicate him and has made false statement against him in support of his case.
48.1 He also disputed the GEQD report stating it to be incorrect and biased. With respect to the deposition of the promoter members of the Society and their forged / false resignations and affidavits, he denied his personal knowledge to the said facts and stated that the resignations were accepted as per records, and that all the said persons were members of the Society as per documents/ records.
48.2 It is stated that no Protest or any other grievance was raised by the Promoter / initial members with respect to their resignations, or membership or receipt etc during his tenure in the aforesaid Society.
48.3 He denied having committed any offence. He stated that functioning of the authority was being conducted properly and as per rules during his short tenure in the Management as well as its members that he had resigned from the membership of CBI Case No. 194/19 19 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) the Society in the ordinary course like any other member.
49. Accused Rupali Kukraja (A-7) was the member and Secretary during the tenure of Mr. Harjeet Singh (A-6) and she also on to similar lines in verbatim to A-6. She pleaded her innocence and stated that no offence in the present case was committed at any point of time.
49.1 She further stated that during her tenure she did not receive any information or protest which raised any doubt on the conduct of the previous managing committee.
49.2 She further submitted that during her short tenure as the office bearer of the Society for about 5-6 months, no benefit whatsoever was received by her and she resigned from the membership of the Society like many other members as nothing was moving forward in regard to the allotment of land to the Society.
50. Accused Madhur Bhardwaj (A-8) denied the allegations of prosecution and submitted that he has no knowledge about the correctness of the facts deposed by most of the witnesses regarding their membership and / or resignations or affidavits and it is a matter of record.
50.1 He admitted that his specimen signatures were taken during investigation by the IO but disputed the GEQD opinion stating it to be biased and without any sound reasons given hurriedly without application of mind.
50.2 He denied his questioned signatures from Mark Q- 739 to Q-749. He stated that he was member of Rose Marry CBI Case No. 194/19 20 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) CGHS and appointed as Treasurer on 03.02.2002 but he never performed any function of Treasurer related to the affairs of the Society.
50.3 He further denied having attended the meetings of the Management on various dates wherein his questioned signatures Mark Q-739 to Q-749 are allegedly appended.
50.4 He stated that he has not committed any offence nor the prosecution has proved on record that he had accepted the resignations of any of the members in the capacity of Secretary or otherwise ; that he is innocent and has been falsely implicated in the present matter.
51. Accused Pawan Kumar Sharma (A-9), Accused Rakesh Kumar Girotra (A-10) and Accused Rajesh Shorey (A-11) were all part of subsequent Management and who have given their statements on similar lines to state that IO has not conducted fair investigations ; they were not named in the FIR and as per preliminary inquiry report conducted by PW-38 no incriminating material was found against them and they were not recommended to be prosecuted for the alleged offences.
51.1 Further, all three also disputed the GEQD opinion stating it to be biased and manipulated document, prepared mechanically and given only at the behest of CBI to falsely implicate them.
51.2 It is stated that no offence is made out against them ; no new fact was disclosed by the IO after conducting the preliminary inquiry and the investigating officer has malafidely not produced on record entire documents of the Society which CBI Case No. 194/19 21 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) would have proved their innocence.
52. Accused R.K. Srivastava (A-12) also denied the case of prosecution and submitted that it is a false case ; he has no knowledge about the facts deposed by the Promoter Members and the other Members of the Society or the other witnesses regarding forged and fabricated resignation letters, affidavits, membership applications or the proceedings register of the aforesaid Society.
52.1 He stated that he has committed no illegality while passing the revival order of the said Society and the present case has been filed against him due to wrong appreciation and analysis of DCS Act and Rules.
52.2 It is stated that he was not aware of any forgery of the said record, if so committed ; and the revival of the Society, and the change in its name from Sheel CGHS to Rose Marry CGHS, which was done as per the DCS Act and Rules, Laws, Guidelines, Notifications and Circulars issued by the authorities time to time on the applications so moved on behalf of the Societies.
52.3 He stated that he is totally innocent and has been falsely implicated.
DEFENCE EVIDENCE : -
53. Accused Anna Wankhede (A-2) S.Subramanyam (A-5) and Madhur Bhardwaj (A-8) has lead defence evidence and examined six witnesses in all in support of their defence.
54. Accused (A-8) in support of his defence has examined CBI Case No. 194/19 22 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) two witnesses Sh. Sunny Arora, DW-1 and Sh. Ami Lal Daksh, DW-2 to raise doubt over the testimony of IO and GEQD expert with respect to the questioned / disputed / admitted signatures.
55. Sh. Sunny Arora, DW-1, Officer of the HDFC Bank proved copy of account opening form and specimen signatures of accused Madhur Bhardwaj, (A-8) Ex DW1/1, DW1/2 & DW1/3 and Sh. Ami Lal Daksh, DW-2, an independent handwriting expert proved his opinion dated 24.12.2018 Ex DW2/1 .
56. Sh. Chander Pal Singh, DW-3, Assistant Section Officer, DDA and Sh. Rajesh, DW-4, from the office of RCS, were examined by accused A-2, through whom a list of members of the Rose Marry CGHS available in the office of DDA ( DW3/1) alongwith copy of forwarding letter and the list (DW4/1 & DW4/2 ) was sent by the RCS Office to the DDA respectively and it was produced on record.
57. Accused A-5 has examined two witnesses namely Sh. Bishamber Nath, DW-5, and Sh. Gautam Arora, DW-6, from the office of DDU hospital and RCS respectively in his defence to show that the sanction qua prosecution is bad in law and it was not obtained from the competent authority under which the accused was serving at the relevant point of time. The said witnesses produced the relevant service record of the accused (A-5).
FINAL ARGUMENTS :
58. A detailed arguments were addressed by learned PP for CBI as well as by all the defense counsels during hearing of the case and number of judgments were also cited at bar in CBI Case No. 194/19 23 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) support of their respective claims. Briefly the relevant contentions raised by the parties have been noted for the sake of brevity, while appreciating and evaluating the evidence, so produced, during trial on record.
59. In nutshell, learned PP for CBI while drawing attention of the Court to the testimonies of witnesses as well as to the documents has contended that prosecution by oral and documentary evidence has successfully proved its case beyond reasonable doubt against all the accused persons by submitting that accused namely S. Subramanyam and R.K.Srivastava were government officials working in the RCS office at the relevant time, conspired with other co-accused / private persons namely Sri Chand, Anna Wankhede, Sushil Kumar Sharma, Sohan Pal (since expired ), Harjeet Singh, Rupali Kukreja, Madhur Bhardwaj, Pawan Kumar Sharma, Rakesh Kumar Girotra and Rajesh Shorey and successfully revived the Society on the basis of false and fabricated documents.
59.1 It is stated that all the relevant record of the Society in the RCS Office was seized by the IO during the investigation, and the GEQD expert has confirmed the fact that the documents have been false, forged and fabricated.
59.2 It is further submitted that the prosecution have examined number of witnesses in support of its case who also have denied having signed, resigned or taking membership or attending any meeting of the Society as reflected in the records to substantiate their case, and that all the witnesses have fully supported the case of the prosecution and prosecution has CBI Case No. 194/19 24 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) successfully proved all the charges levelled against the respective accused persons.
59.3 It is stated that in-fact the Society with original 57 members had stopped functioning and accused persons taking advantage of non-finalization of winding up proceedings of the Sheel CGHS conspired to revive the same in the eyes of law with fake documents and fake membership to enable it to get land at subsidized rate from DDA claiming preference over other societies registered latter in time.
59.4 It is stated that the public servants misconducted themselves in performing their respective official duties in a highly fraudulent and dishonest manner, though cloaked in official duties, as if to show that they were not party to the conspiracy hatched to revive the Society on forged and false documents, and had performed their respective official duties malafidely in routine manner.
59.5 During arguments learned PP traversed through the entire evidence of each witness in detail to substantiate his contentions that the prosecution has proved its case beyond reasonable doubt against each of the accused persons.
59.6 Concluding his submissions, learned PP for CBI submitted that prosecution has successfully proved all the charges levelled against the accused persons and they all be convicted for the offences with which they have been charged and put to trial.
60. Lengthy arguments were addressed by learned counsel for all the accused persons and have been briefly CBI Case No. 194/19 25 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) summarized as under, and has been dealt-with and appreciated while analyzing the case of each accused separately underneath :-
61. Arguments on behalf of accused Sri Chand (A-1), Anna Wankhede (A-2) and accused Sushil Kumar Sharma (A-3).
61.1 It was argued by learned counsel representing the aforesaid three accused persons that prosecution has miserably failed to prove its beyond reasonable doubt case against the respective accused persons, and they were not involved into any criminal activity ; nor were they part of any conspiracy at any point of time with any person.
61.2 It is further submitted that the CBI has filed a false case against these accused without actually verifying the records of the Society ; that the investigation has been carried out in a very biased and callous manner, selectively by pick and choose policy ; that there is no incriminating martial against these accused persons ; that some of the witnesses have not even supported the case of prosecution, whereas others have admitted to take the membership of the Society.
61.3 That the GEQD opinion is a weak type of evidence, nor was it duly accompanied by reasons for opinion, and thereby can not be relied upon and no conviction can solely be based on his testimony.
61.4 It is submitted that the prosecution has failed to connect all the circumstances of the case to indicate that the accused persons were ever part of the conspiracy so alleged by it, or that they had forged and fabricated the records of the Society.
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61.5 It is, thus prayed that the accused persons be
acquitted accordingly.
62. Arguments on behalf of accused S.Subramanyam (A-5) :
62.1 It was argued by learned counsel for accused S. Subramanyam (A-5), that he was appointed on 15.09.2000 for physical verification of the records, whereas the revival order of the Society alleged to be on the forged and fabricated documents, was passed much prior to that i.e. 08.09.2000 by the then Registrar of Cooperative Societies reflects that accused A-5 had no role to play in revival of the Society on the aforesaid documents.
62.2 It is further submitted that there is no evidence on record to show that A-5 had acted malafidely or had adopted any illegal means while carrying out the verification of the records of the Society.
62.3 That all the rules and regulations under the DCS Act were duly complied with, and there is no requirement under DCS Act & Rules to physically verify the records of the Society or the facts of resignation from the persons who have been shown as resigned from the membership of the Society.
62.4 That PW-30 Sh. Niranjan Singh, Dealing Assistant in the RCS Office also confirmed the fact that there is no provision of physical verification in the DCS Act and Rules, and no discrepancy in the physical verification report of the accused was pointed out by any official.
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62.5 That accused R.K. Srivastava (A-12) the then
Registrar in the office of RCS, also did not raise any query regarding physical verification of the resigned members at the time of approving the freeze list, and the entire exercise of approving the final list was carried out tactfully by the then Registrar in connivance with PW-30 and PW-36 by making the accused A-5 a scapegoat.
62.6 That even otherwise in terms of Section 95 of the DCS Act, 1972, the Officials of Registrar Cooperative Society have immunity from the legal proceedings for the work performed by them in discharge of their official duties.
62.7 That the audit of the Society thereafter was done by Sh. P.K.Thirwani PW-29 and he also did not find any illegality in the resignation of the members and the refunds made to them subsequently.
62.8 That the said 12 resigned members also did not make any complaint or lodged any protest with any competent authority or with the Society at any point of time.
62.9 That the testimony of said resigned members further can not be relied upon after a long hiatus of about 24 years when they were examined in the Court during trial of the case.
62.10 That no land was finally allotted to the Society at subsidized rates by the DDA nor any possession of the land has been given to the Society, therefore, no offence is made out in the given facts of the case.
62.11 On the point of sanction, it is stated that prosecution
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has failed to obtain valid sanction under Section 197 Cr.P.C, and the Sanction obtained under the P.C. Act is illegal and invalid, not obtained from competent authority i.e. Controller of Defence Accounts, where the accused was working at the time when the present case was registered and investigated by the concerned Agency.
62.12 That there is no evidence on record to suggest that accused S. Subramanyam (A-5) had obtained any pecuniary gain or undue advantage to himself or to any other persons, and it is thus prayed that he is entitled to be acquitted in the present case.
63. Arguments on behalf of accused Harjeet Singh (A-6) and accused Rupali Kukreja (A-7).
63.1 It is argued on behalf of accused A-6 and A-7 that they have been falsely roped into the present case without there being any incriminating material against them. It is submitted that accused A-6 and A-7 became the office bearer of the concerned Society only subsequent to its revival and after a letter of allotment of land was issued by the DDA.
63.2 It is stated that prior to them assuming the office of Society, the RCS Officials had already revived the said Society and had approved its list of 75 members which was sent to the DDA vide their letter dated 03.10.2000, and the accused persons came into the affairs of the Society much later i.e. only on 27.01.2001.
63.3 It is submitted that the primary allegations against the accused are that they accepted some resignations of certain members amongst them few were promoter members which were CBI Case No. 194/19 29 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) found to be forged and fabricated.
64.4 It is argued by the learned counsel that all these resignation letters and the records of the Society were provided by the previous office bearers of the Society ; many of the said members were related to accused A-1, and in terms of their own case of the prosecution all these documents were handed over by A-1 to A-6 when the Society was not able to make the financial demand of earnest money in terms of the demand cum allotment letter issued by the DDA.
64.5 It is submitted that the conspiracy, if any, to seek revival of the Society and allotment of land was hatched much prior to the association of A-6 and A-7 with the affairs of the Society ; that the accused A-6 and A-7 had no role to play, nor is the case of the prosecution to that effect in the revival proceedings of the Society and the freeze list so approved and sent to the DDA by the RCS officials, nor are there any allegations that they induced DDA in any manner to get the land approved subsequently or otherwise.
64.6 Alternatively, it was also argued that the records of the Society maintained by the accused persons, the proceedings conducted thereto, have not been used by them before any authority/department for any purpose whatsoever. It can though not admitting, tantamount to be a preparation stage only, thereby no offence can be said to have been committed by the accused persons.
64.7 It is urged that A-6 and A-7 themselves are the victims of the circumstances and were completely unaware of CBI Case No. 194/19 30 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) any illegality or irregularity committed by other persons in the functioning of the Society or in its revival.
64.8 It is thus prayed that accused persons ( A-6 and A-7) are innocent, there is no prima facie evidence against them and they accordingly be acquitted for the offences alleged against them.
65. Arguments on behalf of accused Madhur Bhardwaj (A-8).
65.1 It is submitted that though the prosecution has examined 43 witnesses in the present case but not a single witness has deposed against A-8 in any manner whatsoever ; that none of the witness has even mentioned his name in any of their depositions before the court.
65.2 It is further submitted that the IO has wrongly mentioned A-8 as the Secretary of the Society and accepted the resignations of members, whereas A-8 was acting only as a 'Treasurer' and had never acted as 'Secretary' at any point of time during his tenure associated with the Society ; that the said fact has also been admitted by the IO during his deposition before the Court.
65.3 It is further submitted that in terms of the rules of the CGHS, only the president and the Secretary can accept the resignations of its members and can induct new members, not the Treasurer, therefore, if any irregularity or illegality was done in accepting the resignations of the members, it could only be the act of the President or the Secretary of the Society.
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65.4 Learned counsel further submitted that A-8 had not
forged the signatures of any members of the Society even on the Membership Form or on the Resignation Letter or the Affidavit or the other documents. The said fact has also been admitted by the IO in his examination and thereby no offence is made out under Section 468/471 IPC.
65.5 Further, learned counsel has also disputed the GEQD opinion rendered by the expert in terms of the documents dated 24.10.2008, wherein a set of 230 documents were allegedly examined by him in a short span of 3-4 days stating it to be a biased report and way away from scientific analysis.
65.6 It is also submitted that A-8 had attended only two meetings of the said management of the Society and in the said meetings also no resignation of any member was accepted, while denying his signatures appended on various other meetings in the proceedings register of the Society.
65.7 It is stated that the said fact has also been proved by DW-2 handwriting expert whereby DW-2 has opined that the signatures in the aforesaid proceedings does not match with the admitted signatures of (A-8).
65.8 It is thus stated that A-8 has never actively participated in the affairs of the Society ; neither did he forged any document nor introduced any member in the Society, nor was he in conspiracy with any person in terms of the charges levelled against him in the present case. That the prosecution has miserably failed to proved its case against him and he is entitled to be acquitted of the offences alleged against him accordingly.
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66. Arguments on behalf of accused Pawan Kumar Sharma (A-9), Rakesh Kumar Girotra (A-10) and Rajesh Shorey (A-11) are as under :
66.1 That there is no oral evidence to suggest that the members whose resignations were accepted during their tenure had ever denied the factum of tendering their resignations.
66.2 That accused Raksh Kumar Girotra (A-10) enrolled as member on 06.05.2001 and co-opted as Committee member vide meeting dated 25.08.2002 ; whereas accused Pawan Kumar Sharma and accused Rajesh Shorey were elected as President and Treasurer of the Society respectively vide meeting dated 19.01.2003, with A-10 elected as Treasurer ;
66.3 That during their tenure various proceedings were held, resignation of number of members were accepted and out of which some were found to be forged and fabricated. It is stated that the said alleged forged resignation letters, as is evident from the proceedings register of the Society, were received from the Ex-President Sh. Harjeet Arora (A-6) and the payment in respect of those resigned members had also been routed through him.
66.4 To buttress his contentions learned counsel also highlighted the meeting of the Society that allegedly took place on 08.09.2002, 18.08.2003, 15.10.2003, 19.11.2003 and 24.12.2003, wherein the fact about the handing over the said resignation by Ex president Sh. Harjeet Singh ( A-6) and the payments made thereto are specifically mentioned.
66.5 Alternatively, it is submitted that even otherwise no
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witness has been examined by the prosecution to prove the said proceeding register available in D-8 and D-9.
66.6 That PW-1 exhibited the register D-8 & D-9 for the purpose of identification of documents Ex PW1/C and Ex PW38/A & Ex PW38/B and marking of the said exhibits of the documents does not tantamount its proof and can not be read in evidence.
66.7 It is further argued that various proceedings of the meetings were conducted during their tenure as deposed by PW-
3, PW-27, PW-32, PW-33 and PW-35, and they (A-9, A-10 & A-
11) had no knowledge at the time of accepting the said resignations that they are forged and fabricated documents.
-So, merely accepting the same, it can not be inferred that they had knowledge about the alleged forgery of the resignation letters of the members and the prosecution has miserably failed to bring on record any incriminating material against these three accused persons, and that they be acquitted of all the charges accordingly.
67. Arguments on behalf of accused R. K. Srivastava (A-12).
67.1 He was working as a Registrar at the relevant time and passed the conditional order to revive the defunct Society allegedly premised on false and fabricated records.
67.2 It is argued on behalf of accused that he was diligently and honestly performing his official duties and had passed the revival order, after verification of the documents so CBI Case No. 194/19 34 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) furnished alongwith the revival application, in do compliance with provisions of DCS Act and Rules in exercising his powers conferred upon him under Section 63 of the said Act.
67.3 It is further submitted that due to exigencies of the matter and in terms of the directions issued by the competent government to expedite the revival of the co-operative societies in terms of the object and scheme to promote the co-operative societies for the welfare of general public, the Society was revived by passing a conditional order with directions to the subordinate official of the RCS to verify the records of the Society, so produced before it and file the Status report.
67.4 It is stated that the accused had carried out his official duties as per provisions of law, settled norms and practice without any malafide intention. Learned counsel also traversed through the testimony of the Registrar Officials and PW-42 IO of the case to state that no incriminating fact or material has come on record against A-12 and all the said witness examined by the prosecution found no discrepancies in the manner in which the file of Sheel CGHS was processed and the Society was revived conditionally.
67.5 It is submitted that entire exercise concerning the revival of the Society was carried out bonafidely after the records / resignation of 12 promoter members were duly verified by accused S. Subramanyam ( A-5), approved and processed by various officials of the RCS concerned with it.
67.6 It was also submitted that the prosecution has failed to prove that the files of the Society were processed by the RCS CBI Case No. 194/19 35 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) officials for any illegal / personal gain either directly or indirectly.
67.7 Further, it is submitted on behalf of A-12 that functions of Registrar of RCS are akin to the judicial functions and the documents before it are prima-facie treated as evidence of substance, and no illegality can be attributed to the act of the accused in revival of the Society. Reliance is placed on the provision of Section 40 and 41 of the Delhi Cooperative Societies Act,1972.
67.8 It is further submitted that order passed by the Registrar (A-12) for revival of the Society is quasi-judicial in nature and the prosecution or this Court can not sit in appeal over the proceedings / orders passed by the Registrar. Reliance is placed on Section 93(iii) of DCS Act, 1972.
67.9 Further, it was also argued that the A-12 was discharging his duties as a 'judge' and is thereby entitled to get protection under section 77 of IPC r/w Section 3 of Judge's Protection Act, and the accused is entitled to be acquitted in the present case on this very count.
67.10 Thus, concluding it is submitted that there is nothing incriminating against the accused A-12 R.K. Srivastava and he had performed his duties honestly and diligently and thereby he is entitled to acquittal.
REBUTTAL ARGUMENTS
68. Learned PP has also addressed rebuttal arguments to refute the contentions and objections raised by the learned CBI Case No. 194/19 36 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) defence counsels for accused persons. The same are premised to a great extent on similar submissions advanced earlier with additionally highlighting the case law to refute the contentions of the defence.
68.1 Qua the defective / negligent investigation, learned PP has also relied upon the judgment of Hema Vs. State Tr. Insp. of Police, Madras decided on 7th January, 2013 to say that any negligence, if any, in carrying out the investigation on the part of the IO would not by itself entitled the accused persons to seek their acquittal, and that prosecution has established its case beyond reasonable doubt against each accused and they are all liable to be convicted accordingly.
69. Before proceeding further it is relevant to mention here that there appears to be some ambiguity in the form of typographical error in the Charge framed against the accused A-6 to A-11 vide order dated 25.08.2011.
69.1 Learned PP submitted that there is a typographical error in the charges so framed qua the aforesaid accused wherein the fabrication of the proceedings got mentioned as '03.10.2000 to 02.11.2000' whereas it should have been from '03.10.2000 to 02.11.2003', during the time when the entire promoter members of the Society were allegedly shown as resigned on false and fabricated documents by inducting new members in their place.
70. Per contra, learned counsel for accused persons refuted the submissions advanced by the learned PP by submitting that there is no error in the date / duration so mentioned in the charges so framed.
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70.1 It is submitted that duration from 03.10.2000 to
02.11.2000 was allegedly the conspiracy period as was put forth by the prosecution in terms of the charges pressed against accused persons for committing the offence of conspiracy read alongwith other substantive offices under PC Act and IPC.
71. I do not concur with the submissions advanced by the learned defence counsel for the reasons that a detailed order on merit was passed by the learned Predecessor Court on 25.08.2011, wherein the issue regarding the resignation of all the Promoter members i.e. 75 (+6) was discussed at length and the Court had also made references to the resignation of Sh. Arvinder Singh Wadhwa and Sh. Jaspal Singh Sethi whose resignations are allegedly shown to be accepted on 19.02.2002 and 14.02.2002 respectively, and in terms of their statements they both had denied having tendered any resignation.
71.1 It was also observed by the learned Predecessor Court that the resignations of Ms. Dalbir Kaur, Sh. Ashok Chawla, Sh. Dharmender Singh Yadav and importantly that of Ms. Mamta Goswami were accepted on 19.02.2002, 14.02.2002 and 19.02.2003 respectively.
71.2 Which indicates that the alleged forged resignations of the promoter / initial members were accepted by the various managements of the Society in a phased manner till end of 2003. All these observations are clearly mentioned in the order so passed while framing charges against the accused persons.
71.3 Therefore, I find force in the submissions of learned PP that the period of '02.11.2000' for fabrication of the CBI Case No. 194/19 38 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) records ought to have been mentioned as 02.11.2003, and that it was inadvertent typographical error.
71.4 Further, all the accused were well aware about the charges so framed against them including the allegations of accepting the forged resignations of initial members of the Society during their tenure at different times while conducting the proceedings of the Society.
71.5 The charge so framed against accused persons also states that the accused persons fabricated the proceedings "....... by inducting as many as 81 (6+75) members in place of the then existing members who were shown to have resigned by fabricating their signatures and accepted the false and fabricated resignations of 81 (mentioned as 18) promoter members on forged resignation letters with the knowledge that the same were forged.....",
- which by itself makes it abundantly clear that the accused persons were well aware about the case of the prosecution and the charges so pressed against each one ; evidence was also relied on the similar lines by the prosecution and the witnesses were also cross-examined by the accused persons under the same premises.
71.6 So, in my considered opinion no prejudice of any nature is caused to the accused persons due to the inadvertent typographical mistake of the year that had crept in at the time of framing of charge.
71.7 The contentions of the learned defence counsels accordingly stands rejected on both counts.
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ANALYSIS & APPRECIATION
72. The case at hand is another offshoot of the CGHS scam, investigated and charge sheeted by the CBI, pursuant to the directions of the Hon'ble High Court in case titled as Kaveri Cooperative Group Housing Society Ltd. Vs. Union of India (AIR 1991 Delhi 217), wherein the Hon'ble High Court laid down the criteria of seniority of the Society as per the date of their registration for the purpose of allotment of land by DDA.
73. Pursuant thereto, the defunct societies registered way back with RCS Office were revived to claim seniority and take benefit of its prior registration by the builder mafia in connivance with officials of Registrar Cooperative Societies, through a well hatched conspiracy wherein forged and fabricated documents of the members of the Societies were submitted and Societies were revived to their original status with the object to seek land from DDA at concessional rates.
74. Many of said illegal acts resulted into allotment of land from the DDA, others could not succeed for one reason or the other.
75. Herein also, as per the case of the prosecution, the defunct Society Sheel CGHS ( lateron changed to Rose Marry CGHS ), was revived by the accused persons on forged and fabricated documents, freeze list was thereafter sent to DDA, which in-turn acting on the said list had initially allotted a piece of land to the Society at Dhir Pur, and thereafter due to failure of Soil test at the said Site, the land was proposed to be allotted at Dwarka, New Delhi.
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76. In the mean time the illegal acts of the accused persons and the so called 'Managements of the Society' surfaced and the matter got entangled into litigation. The present FIR was also registered pursuant thereto.
77. So, the first thing to consider is the Status of documents / records of the Society, whether they are forged and fabricated, and whether the Society was revived on the basis of said false documents.
78. The prosecution witnesses in category (I) noted above i.e. PW-1 Smt. Ayodhya Devi, PW-4 Sh.S.Arinder Singh, PW-5 Sh. Ravi Bhushan Kalia, PW-6 Sh. Ramesh Kaul, PW-7 Sh. Shobi Sahni, PW-8 Sh. Hemant Kumra, PW-9 Smt. Mamta Goswami, PW-10 Sh. Ashok Chawla ; PW-11 Smt. Leena Nayar ( on behalf of her husband Sh. Sudesh Nayar since deceased ), PW-12 Sh. Kamal Kishore Kumra, PW-13 Sh. Jaspal Singh Sethi, PW-14 Sh. V.K. Bajaj (Promoter member/ office bearer), PW-15 Sh. Rachna Parashar and PW-16 Smt.Saraswati Rickye ( on behalf of her husband since deceased ), have all deposed to the fact that they had become member(s) of the Society, some of them were promoter member, and denied having ever resigned from its membership, or having attended any GBM, or proceedings of the Society which purportedly are shown in the records of the Society.
79. The said witnesses identified their signatures on the Membership Application Form during their examination, but deposed further that they had never tendered their Resignation and the letters alongwith Proceeding Register produced on CBI Case No. 194/19 41 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) record, purported to have been signed by them are false, forged and fabricated.
80. They also denied their signatures appended on the said letters and Proceeding(s) Register exhibited as Ex PW38/A & Ex PW38/B (D-8 & D-9), which were handed over by the then President of the aforesaid Society Sh. Pawan Kumar Sharma (A-9) to the investigating officer, and duly proved on record that the proceedings so mentioned in the Proceeding Register are false via their testimonies.
81. Similarly, witnesses in category (II) noted above i.e. PW-2 Sh. Bhanwar Pal, PW-3 Sh. Vinod Kumar, PW-23 Sh. Laxmi Narayan, PW-25 Sh. Surender Garg, PW-27 Smt. Harpyari, PW-28 Sh.Mohan Lal, PW-32 Smt. Veena, PW-33 Sh. Kailash Chand, PW-35 Sh. Patras and PW-40 Sh. Mukesh Kumar, all relatives of accused Sri Chand ( A-1), testified and proved the fact that they had never applied for the membership of the Society.
82. They all further in a similar tenor, deposed that the signatures appearing against their names on the Membership Application Form of the Society, the Affidavit(s), the Receipt(s), the Resignation letter(s) and on the Minutes of GBM and Proceeding(s) Register of the Society, are not their genuine signatures and they had never signed any such document(s).
83. Most of these witnesses were cross-examined by the learned defence counsel(s) for the accused persons to impeach their credibility but nothing has come on record to doubt their veracity or the fact that witnesses shown in category (I) were not CBI Case No. 194/19 42 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) the members of the Society or that they had ever resigned from the membership, or the fact that witnesses in category (II) had ever taken the membership, or the fact that the signatures appended on the records of the Society corresponding to their names are genuine signatures.
84. The cross-examination of the aforementioned witnesses was mainly confined to suggestions about the genuineness of their signatures or about their details being incorrectly mentioned in the Application Forms, Affidavits, Resignation letters and other documents. Witnesses categorically denied the alleged signatures appended on the purported original record of the Society.
85. And I may say that mere suggestions can not partake the character of a substantive piece of evidence. No evidence was led thereafter by the defence to contradict the stand taken by the witnesses, or to prove the fact that signatures appended on the documents are genuine signatures of the respective witnesses. No expert was examined to controvert their deposition to that extent.
86. Pertinent to mention here, that the said witnesses are independent public witnesses who either were the genuine members of the Society at the time of its formation and themselves seems to be victims of the illegal acts of the accused persons, while others are relatives of accused Sri Chand (A-1) .
87. The factum of forgery of the resignation letters and affidavits is further corroborated by the testimony of PW-17 Sh.Keshav Prasad (Oath Commissioner ), PW-18Sh. Awanish CBI Case No. 194/19 43 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) Kumar (Stamp Vendor) and PW-19 Sh. Ravi Robinson (Clerk- cum Typist attached with PW-18).
88. PW-17 has specifically denied having attested the two affidavits dated 08.09.2000 in the name of Sh. S.K. Sharma and Sh. Sohan Pal ( accused persons ) at Page no. 162/C and 166/C file D-3 respectively, both of which are having the Stamp of Oath Commissioner in his name. He also denied having affixed his Stamp on the aforesaid affidavits.
89. PW-18 The Stamp Vendor also testified that various Stamp papers converted into affidavits EX PW18/A-1 to Ex PW18/A-75, Ex PW17/A and Ex PW17/B amongst others were purchased in bulk from the Stamp Vendor Sh. R.P. Bhatia, whose signatures were duly identified by PW-18 during his deposition.
90. He further deposed that one person Sh. Ravi Robinson (PW-19) used to handover only the list of the persons and their particulars in whose favour Stamp Paper(s) were required to be issued without the actual appearance of the said persons.
91. The said fact was also re-iterated by PW-18 during his cross examination on behalf of A-2. He further admitted the suggestions put by the accused A-9, A-10 and A-11 that he used to sell the Stamp Papers as per the list without verification of the individual members mentioned in the said list. It is also evident that the Stamp Paper(s) also does not bear the name of the persons to whom it were sold.
92. All these facts deposed by PW-17 and PW-18 are also affirmed and corroborated by the testimony of PW-19, the CBI Case No. 194/19 44 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) Typist-cum-Clerk, who was working with PW-17 and PW18 in the same complex behind the RCS Office at the relevant point of time.
93. The expert opinion duly corroborates the oral testimony of witnesses noted above to prove the fact that the records of the Society were forged and fabricated in terms of his opinion Ex PW43/A to Ex PW43/D
94. The original members of the Society who had never resigned but are shown to have resigned from the membership ; members who never took its membership are reflected to have been its member without their consent and knowledge.
95. So, appreciating the testimonies of the witnesses noted above and the GEQD opinion, I have no hesitation to say, that the prosecution has successfully proved the fact that the records of the Society were manipulated, the documents furnished before the RCS Office were forged and fabricated, prepared and presented only for the purpose of revival of the Society with the ulterior motive to claim priority to get the land allotted from DDA.
96. Pertinent to note that it was not a mere coincidence that forged and fabricated documents were got prepared or furnished by the persons (accused persons) for revival of the Society, nor it appears to be an act of negligence or inadvertence, but the manner in which the documents were fabricated and presented, and the Society so revived, can not be act of one person but reflective of the role and acts of different persons involved thereto, and which goes a long way to establish CBI Case No. 194/19 45 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) the factum of existence of the conspiracy.
97. The next question that now arises for consideration is whether the accused persons were part of the conspiracy pursuant to which the documents of the Society were forged and fabricated, the Society was revived, false resignations were accepted, freeze list was approved and sent to DDA, and further proceedings of the Society were manufactured malafidely with the object to seek land at concessional rates on priority basis/ seniority basis.
98. Before I proceed further, it would be useful to discuss the relevant provisions of the Conspiracy and the governing Principles thereto. Same are reproduced as under :-
(i) 120A IPC Section 120-A IPC defines Criminal Conspiracy which reads as under: - 120-A. Definition of Criminal Conspiracy- When two or more persons agree to do, or cause to be done-
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy :
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance CBI Case No. 194/19 46 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) thereof.
Explanation:- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.�
(ii)Section 120B IPC Punishment for criminal conspiracy:
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of 2 years or upward, shall where no express provision is made in this code for the punishment of such a conspiracy, be punished in the same manner, as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months or fine or both.
99. It is clear from the above noted definition of "criminal conspiracy" that the three essential elements of offence of conspiracy are:-
a) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the CBI Case No. 194/19 47 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) means by which that aim is to be accomplished ;
b) a plan or scheme embodying means to accomplish that object;
c) an agreement or understanding between two or more of the accused persons whereby they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means.
100. Thus, the gist of offence of criminal conspiracy is an agreement to break the law. The agreement may be express or implied, or in-part express and in-part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by accomplishment of its object or by abandonment or frustration.
101. It must be noted that the Conspiracy is hatched in secrecy and as such direct evidence is seldom available. Similarly, agreement of conspiracy can also be proved either by direct evidence or by circumstantial evidence or by both.
102. It is not necessary that the prosecution has to bring on record express proof of the agreement so entered, the acts and the conduct of the parties appreciated in correct prospective go a long way to infer and establish the existence of conspiracy.
103. Since the Proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason Section CBI Case No. 194/19 48 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) 10 of the Indian Evidence Act was enacted. It reads as under:-
"10. Things said or done by conspirator in reference to common design :-
Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
104. The law expounded by the Superior Courts on the subject and its governing principle may now be referred to have better understanding of the facts of the case and the evidence so produced on record.
105. The Hon'ble Supreme Court in Ram Narayan Poply Vs. Central Bureau of Investigation, AIR 2003, SC 2748 the Hon'ble Supreme Court observed that : �"the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such CBI Case No. 194/19 49 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120-B read with the proviso to sub section (2) of Section 120-A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120-B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in Section 120-B.".
(Emphasis supplied)
106. In another landmark judgment on the aspect of conspiracy, wherein the Hon'ble High Court has succinctly summarized the applicable principles on the said subject, after re-visiting the entire case law, in a case titled as Rakesh Kumar & Ors. Versus State, 2009 (163) DLT 658, observed as under: -
.......134. After survey of the case law on the point, following legal principles pertaining to the law of conspiracy can be conveniently culled-out:-
A. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and CBI Case No. 194/19 50 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. (See the decision of Supreme Court reported as State v. Nalini, (1999) 5 SCC 253).
B. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co- participators in the main object of the conspiracy.
It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators.
In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by CBI Case No. 194/19 51 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. (See the decisions of Supreme Court reported as Yash Pal Mittal v. State of Punjab, AIR 1977 Supreme Court 2433 and State v. Nalini, (Supra)] C. It is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy. D. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. Since a conspiracy is generally hatched in secrecy, it would quite often happen that there is no evidence of any express agreement between the conspirators to do or cause to be done the illegal act. For an offence under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators CBI Case No. 194/19 52 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) in pursuance of a common design. The prosecution will also more often rely upon circumstantial evidence. It is not necessary to prove actual meeting of conspirators. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy. (See the decisions of Supreme Court reported as Shivnarayan Laxminarayan Joshi v. State of Maharashtra, AIR 1980 Supreme Court 439; Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra, AIR 1981 Supreme Court 1062; and Kehar Singh v. State AIR 1988 Supreme Court 1883) E. A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the Society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalized or done, attempted or even frustrated and vice versa. F. Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the coconspirators. In short, CBI Case No. 194/19 53 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) the section can be analysed as follows:-
(1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 81 of 183 entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour. (See the decision of Supreme Court reported as Sardar Sardul Singh v. State of Maharashtra, AIR 1957 Supreme Court 747.) Here it is pertinent to refer to a classic judgment of three Hon'ble Judges� Bench of the Hon�ble Supreme Court in Bhagwan Swarup v. State of Maharashtra, AIR 1965 SC 682 (known as 2nd Caveeshar case) in which his lordship Hon�ble Sh. Justice Subba Rao, had already spoken for the bench analysed the ingredients of Section 10 as culled out above in the judgment of our Hon�ble High Court in Rakesh Kumar (supra), which amounts to repetition, if quoted again.
It would be profitable to draw reliance from yet another judgment of the Hon'ble Supreme Court of the same strength (Three Hon'ble Judges) in Nalini case (supra) relied upon by the defence, which reads �It is not that immediately the object of conspiracy is achieved, Section 10 becomes inapplicable. For example principle like that of res gestae as contained in Section 6 of the Evidence Act will continue to apply. (Para 582).
Therefore, the res gestae i.e. the acts, CBI Case No. 194/19 54 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) circumstances and the statements that are incidental to the principal fact of a litigated matter and are admissible in evidence in view of their relevant association with that fact, cannot be ignored since the same become relevant in view of Section 6 of the Indian Evidence Act, 1872.
107. It may also be noted that mere agreement to commit a conspiracy is a punishable offence.
108. So, essentially, in case of criminal conspiracy the court has to infer certain facts and circumstances to arrive at its conclusion of existence of conspiracy and the involvement of the persons so conspiring from their acts and attending circumstances.
109. So, keeping these fundamental and governing principles of law relating to conspiracy in mind, I proceed to examine the case of each accused qua his involvement, if any, in the conspiracy and other offences in terms of the charges so framed against them.
110. The case of the accused persons can be classified primarily into three Units in terms of the allegations and their tenure in conducting the affairs of the Management of the Society.
110.1 First set of accused consisting of accused Sohan Pal (A-4, since expired) President, accused Sushil Kumar Sharma (A-3) Secretary, and accused Anna Wankhede (A-2) Treasurer in connivance with the alleged mastermind accused Sri Chand (A-
1) allegedly from the period 05.10.1987 till 27.01.2001.
110.2 Second set consisting of accused Harjeet Singh (A-
CBI Case No. 194/19 55 of 118
CBI vs. Sri Chand etc (Rose Marry CGHS)
6) President, accused Rupali Kukreja (A-7) Secretary, and
accused Madhur Bhardwaj (A-8) Treasurer taking over the
affairs of the Society from period 27.01.2002 to 27.12.2002.
110.3 And thereafter Third set consisting of accused Pawan Kumar Sharma (A-9) President, accused Rakesh Kumar Girotra (A-10) Secretary, and accused Rajesh Shorey (A-11) Treasurer taking full charge of the Society from 25.08.2002 onwards.
110.4 And for a brief period, in between, accused Rakesh Kumar Girotra (A-10) was also part of the management alongwith accused A-6 and accused A-8 after accused Rupali Kukreja (A-7) had resigned from the post of Secretary of the Society, in terms of the meetings held on 14.07.2002.
Taking first the case of A-1, A-2 and A-3.
111. In terms of the allegations these three accused entered into criminal conspiracy with other accused persons including the officials of RCS office with an object to revive the defunct Sheel Cooperative Group Housing Society by preparing false and forged documents to get land from DDA. This set of accused persons were instrumental in initiating the entire process to get the Society revived upon false and fabricated records,and which they successfully also did so in concert with the RCS officials.
112. It may be noted that on 05.10.1987, 12 Promoter members of the Society were shown to have resigned from its membership and in place other 12 members were inducted and allegedly intimated to RCS under the forged signatures of Sh.
CBI Case No. 194/19 56 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) Vijay Kumar Bajaj, the original Secretary of the Society.
113. Out of these 12 newly inducted members, in terms of the evidence led by the prosecution, ten including deceased accused Sohan Pal were direct relatives of accused A-1 Sri Chand and other two i.e. A-2 and A-3 were his employees.
114. Interesting to note that most of the newly inducted persons were not even aware about their membership of the above said Society, nor had they ever tendered any resignation, affidavits, nor had they ever attended any proceedings including the General Body Meetings of the said Society. The said persons have been examined by the prosecution in support of their case and their testimony is relevant here to reflect the forgery / falsity of the records committed by these accused persons.
115. PW-2, PW-3, PW-23, PW-25, PW-27, PW-28, PW- 32, PW-33, PW-35 and PW-40 have all testified in the same breath that they were made members of the aforesaid Society by accused Sri Chand (A-1), but stated that they had never ever attended any General Body meetings, proceedings of the Society. They also specifically denied to have tendered any resignation of their said membership.
- They further denied to have furnished any affidavit in support of the membership form, and also denied their purported signatures appended on the aforesaid documents of the Society including that on the affidavits.
116. Aforesaid witnesses were cross-examined by the accused persons but the facts deposed by them in their examination remained un-refuted. Nor do I see any reason for CBI Case No. 194/19 57 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) them to depose falsely against accused persons as all the said witnesses are direct relatives of accused Sri Chand (A-1).
117. The testimony of the said witnesses is further corroborated by the GEQD expert wherein he has opined that :-
i) That the questioned signatures at Q-82 & Q-83 on the resignation letter and at Q-443 & Q-444 on the affidavit in the name of Sh. Bhanwar Pal (PW-2) has not been signed by him in terms of his specimen signatures from S-37 to S-42.
118. Similarly, the questioned signatures at Q-80 & Q-81 on the resignation letter and at Q-446 & Q-447 on the affidavit in the name of Sh. Vinod Kumar (PW-3) has not been signed by him in terms of his specimen signatures from S- 43 to S-50.
119. The questioned signatures at Q-65 on the resignation letter and at Q-454 & Q-455 on the affidavit in the name of Ms. Harpyari (PW-27) has not been signed by her in terms of her specimen signatures from S-166 to S-169.
120. Further, the questioned signatures at Q-452 & Q-453 on the affidavit in the name of Ms. Veena (PW-32) has not been signed by her in terms of her specimen signatures from S-8 to S-
121. The questioned signatures at Q-458 & Q-459 on the affidavit in the name of Sh. Kailash Chand (PW-33) has not been signed by him in terms of his specimen signatures from S-16 to S-27.
122. Similarly, the questioned signatures at Q-76 & Q-77 on the resignation letter and at Q-444 & Q-445 on the affidavit in the name of Sh. Patras (PW-35) has not been signed by him in CBI Case No. 194/19 58 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) terms of his specimen signatures from S-82 to S-84.
123. Again, the questioned signatures at Q-364 & Q-365 on the resignation letter and at Q-456 & Q-457 on the affidavit in the name of Mr. Mukesh Kumar (PW-40) has been opined as not signed by him in terms of his specimen signatures from S-28 to S-36.
124. Further, PW-23 Sh. Laxmi Narayan deposed to the fact that A-1 Sri Chand was known to him, as he had become the member of Cosmos CGHS and A-1 was also office bearer of said CGHS. He testified that the accused A-1 had called, offered and assured him to take membership of any CGHS, in which he is interested.
125. He further testified that A-1 had also called and informed him telephonically that he had given his address i.e. C- 130, Ground Floor, Sarvodaya Enclave, for some Society and any correspondence received on the said address be handed over to him. He also deposed that the said address could be of Rose Marry CGHS, but was not able to recollect the exact name of the Society of which A-1 had given his address.
126. PW-23 was cross-examined by the learned defence counsel for accused A-1 to reflect that the said address could be of any Society and it does not lead to any inference or proves the fact that the address of PW-23 given by A-1 was only for the correspondence of Rose Marry CGHS.
127. But the fact remains that nothing has come on record to indicate that the said address of PW-23 was used as a registered address of any other Society.
CBI Case No. 194/19 59 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS)
128. On the contrary, the prosecution has produced on record the proceedings register of the Society and the alleged correspondence made in that regard to show aforesaid address of Sarvodaya Enclave was given as a registered address of 'Rose Marry CGHS' ( Sheel CGHS ) by accused persons. PW-23 has also not specifically denied that it was not or could not be for the correspondence of Rose Marry CGHS.
129. Moreover, the dispute here is not with respect to the registered address of the Society but to prove the fact that accused Sri Chand (A-1) was actively involved into the revival of the defunct Societies and managing its affairs by creating false and fabricated records including that of Rose Marry CGHS ( Sheel CGHS ).
130. PW-28 Mohan Lal is an important witness to highlight the fact that the records of the Sheel CGHS were prepared falsely by the accused persons after the year 1997, simply with an object to revive it to seek land from DDA.
131. He testified that the proceeding register of Rose Marry Society exhibited as Ex PW1/C (D-8), Minutes of Meeting(s) alleged to be of different dates starting from 15.02.1984 - 1986 - 1987 to till 26.11.2000 ( Ex PW11/D, PW11/E, PW8/D to PW8/K, Ex PW1/E PW27/D & OW27/E and PW27/T-11, Ex PW28/A) are in his handwriting and same were prepared by him in the office of Naval Technical Officers CGHS, Mayur Vihar, New Delhi.
132. He deposed that main proceedings were written by him whereas the names were left blank to be filled by them CBI Case No. 194/19 60 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) lateron.
133. And importantly he testified to the fact that, apart from him, accused A-1 Sri Chand, A-2 Anna Wankhede and A-3 S.K. Sharma, also used to meet in the said office wherein different type of work related to Societies was carried out by accused persons.
134. He testified that neither he nor his wife namely Smt. Harpyari ( PW-27 ) became member of Rose Marry CGHS.
135. He further testified that he had worked with Sri Chand(A-1) for about 8-10 years, with A-2 and A-3 for about 6-7 years, and he admitted the fact that the aforesaid proceedings were written by him for about 10-15 years ago i.e. around 1997- 2000 in the cross-examination conducted by learned PP for CBI, indicating that all the accused persons were known to each other and were together actively involved into fabricating the records of different Societies at the given point of time.
136. PW-28 Mohan Lal on some aspects was declared hostile by the prosecution as he was suppressing some material facts and had failed to identify the handwriting / signatures of accused persons Part of D-8, Register. He was cross-examined by the learned PP as well as by the learned counsel for accused persons.
137. On some points, he took the aid of short memory, and to some others, he stated that A-1 had never mentioned the name of Sheel CGHS or Rose Marry CGHS during his association with him, which does not inspire confidence of the Court. Witness himself is accused in number of Society (CGHS) CBI Case No. 194/19 61 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) cases and has also been convicted in some of these matters.
138. Moreover, he himself deposed to the fact that he had prepared Minutes of Meeting and other proceedings related to the Rose Marry CGHS, as noted above ; that accused A-1 was actively dealing with different Societies at that time, be it as a member or as a office bearer in total disregard to the DCS/DDA Act / rules and regulations or otherwise, thus to say that A-1 never mentioned anything about the Sheel/Rose Marry CGHS Society is blatantly a false and misleading statement.
139. PW-35 Mr. Patras is son of A-4 and brother-in-law of A-1 and his testimony is also of great significance to bring forth the facts that all the four accused A-1, A-2, A-3 and A-4 (since expired) were working together and actively dealing and Managing about 40 other Societies during the relevant time, which further corroborates the facts as deposed by PW-28.
140. PW-35 had also worked with A-1 in his office from 1995 - 1996 to 2000-2001, and he testified further the fact that the office of A-1 was situated in Mayur Vihar, Phase III, Delhi. He also identified correctly, all the three accused persons (A-1 to A-3) in the Court indicating that all the three persons were working together and actively involved into fabricating the records of the Societies.
141. He deposed that his affidavit exhibited as Ex PW35/A ( D-4 at Page 47-A ) though bears his signatures but it was got typed by A-1 and he had signed the same on his instructions. He further deposed that he had never attended any meeting of Rose Marry CGHS where his presence is shown in CBI Case No. 194/19 62 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) the proceeding register exhibited as Ex PW1/C at D-8, Page no. 40, but admitted his signatures stating that he had signed the proceeding register in the office of accused Sri Chand (A-1).
142. He also stated that he is 9th pass and can not read and understand English language and thereby denied during the cross- examination the knowledge of the content of the proceeding register of the Society which were in English language.
143. In the cross-examination, he reiterated the fact that he had signed the affidavit Ex PW35/A without asking about its contents from A-1 as he had full faith in him being his close relative (Jija).
144. Importantly, he testified during his cross- examination that A-1 had not only made him a member in the present Society but also in some other Group Housing Societies like Vinay Vihar CGHS, Siddha CGHS and Hyatt Nagar CGHS.
145. PW-35 was cross-examined to show that the particulars in the affidavit were filled by him and the proceeding register is also correct as he had signed them with due knowledge of its contents.
146. Take it either way, in terms of the deposition of PW- 35, the cross-examination so conducted by the Defence Counsel and the suggestion so put, the factum of falsity of the records of the Rose Marry CGHS so prepared by the accused persons is an admitted and a proven fact.
147. The involvement of A-1, A-2 and A-3 in the case CBI Case No. 194/19 63 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) crime is further fortified and corroborated by the testimony of GEQD Expert Sh. Sujay Saha examined as PW-43 and he proved his opinion exhibited as Ex PW43/K ( D-24).
PW-43 opined that signatures at :-
i. Q-69 (D-10) on the alleged UPC receipts dated 29.01.1998 ;
ii. Q-71 (D-10 page no. 59) UPC receipt dated 05.10.1987 ;
iii. Q-532, Q-647 and Q-648 ( D-8 page no. 16/17, 42 and 43 ), and four lines on the back of page no.16 of the proceedings register for the year 1983-1984, are that of accused Sri Chand (A-1).
148. He further opined that the signatures at i. Q-450 and Q-451 part of D-3, on the affidavits filed in the RCS Office in the year 2000 ( D-79 page no. 51/C ) ;
ii. Various proceedings of the Society pertaining to the year 1983-1984 part of D-8, and also signed as Secretary i.e. at Q-474 to Q-476, Q-523, Q-527, Q- 530, Q-535, Q-538, Q-541, Q-543, Q-545, Q-546/1, Q-548, Q-550, Q-552, Q-555, Q-558, Q-561, Q-564, Q-567, Q-569, Q-573, Q-576, Q-579, Q-582, Q-585, Q-588, Q-590, Q-592, Q-594, Q-596, Q-598, Q-600, Q-662, Q-605, Q-606, Q-608, Q-610, Q-612, Q-614, Q-616, Q-618, Q-620, Q-622, Q-624, Q-626, Q-628, Q-630, Q-632, Q-634 and Q-636 ; and CBI Case No. 194/19 64 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) iii. Similarly, letter no. F.47/1174/Coop/GH/1874 dated 17.01.2001 ( D-38 part of D-3) regarding change in Name of the Society at point Q-26, are appended/ written by accused Anna Wankhede (A-2) on all the aforementioned documents of the Society.
149. Qua accused Sushil Kumar Sharma (A-3), PW-43 has further opined that the signatures at i. Q-640 to Q-648 ( D-8 ) proceedings register of the Society for the year 1983-1984 ;
ii. Q-27 (D-3 page no. 192/C) of the application for change of name of the Society and Q-28 & Q-29 of the Affidavit dated 03.01.2000 (191/C -D-3) ;
iii. Q-31 to Q-33, Q-36 to Q-43 and Q-46 of the intimation of loss of registration alongwith original affidavit at Q- 48 to Q-52, Q-54 to Q-57 ;
iv. Letter to Election Officer Q-67 ; v. letter dated 19.12.2003 to Secretary regarding
Resignation cum Receipt for himself Q-74 & Q-75 ( D- 17 page 31) ;
vi. Various Audit reports Q-87 to Q-349 ( D-11) ;
vii. Letter dated 12.09.2000 to AR and final list of members for forwarding to DDA Q-382 ( D4 page no. 244/C ) ;
viii. three undated letters Q-383 to Q-385 ( D4 241/C to 243/C ;
CBI Case No. 194/19 65 of 118
CBI vs. Sri Chand etc (Rose Marry CGHS)
ix. Minutes of GBM dated 30.07.2000 Q-386 to Q-389
( D-4 page no. 238/C to 240/C ) ;
x. List of members Q-390, Q-391, Q-393, Q-395, Q-396
and Q-398 ( D-4 page no. 232/C to 237/C ) ;
xi. Minutes of GBM dated 24.12.1983 Q-400 to Q-409
(D-4 page no. 222/C to 231/C ) ;
xii. List of members Q-411, Q-414, Q-417 and Q-420 D-4
page no. 218/C to 221/C ) ;
xiii. Minutes of GBM dated 10.08.1987 and list of enrolled
members Q-423, Q-425 and Q-428 D-4 202/C to 204/C ;
xiv. Minutes of GBM dated 05.10.1987(?) Q-430, Q-432, Q-434, Q-436 and Q-438 ( D-4 197/C page no. to 201/C ) ;
xv. Affidavit dated 12.09.2000 of Sushil Sharma Q-440 & Q-441 ( D-74 page no. 45/C ) ;
xvi. proceeding register Q-640, Q-642, Q-644, Q-646, Q-
656, Q-658, Q-662, Q-666, Q-668, Q-671, Q-674, Q- 678, Q-682 and Q-684 (D-8) ;
xvii. And the application for change of the address of the Society, are all to have been signed / written by accused Sushil Kumar Sharma ( A-3).
150. Number of such documents which were manufactured, signed and used by the accused persons in fabricating the records of the Society are also attributed to CBI Case No. 194/19 66 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) accused Sohan Pal ( A-4), who is father-in-law of accused (A-1) ; the GEQD expert has also opined number of such signatures appended by him on the aforesaid documents of the Society, but since A-4 has already expired, the proceedings against him already stands abated during the trial vide order dt. 19.03.2018, thereby the evidence against him is not appreciated in detail herein.
151. Further, accused A-2, A-3 and A-4 were also shown as elected members of the Society as Treasurer, Secretary and the President respectively, and they all had appeared before the officials of Registrar Cooperative Society in their capacity as elected members of the management for the purpose of initiating the revival of said defunct Society on the basis of bogus/fake records and moved other false application seeking change of name of the Society.
152. Thus, all these facts discussed above and proved on record leads to an irresistible conclusion, beyond a shadow of doubt, that the resignation of above discussed 12 Promoter Members including other records of the Sheel CGHS Society were forged and fabricated by accused A-1, A-2 and A-3 in connivance with each other, and the Society was thereafter got revived on said forged records by the accused persons in pursuit of their common intention to submit a fake freeze list of its member to seek land on concessional rates from DDA.
Now coming to the roll and conduct of the said Second and Third Management (A-6, A-7 & A-8 and A-9, A-10 & A-11) :-
153. Accused Harjeet Singh (A-6) was the President of CBI Case No. 194/19 67 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) the Society, accused Rupali Kukreja (A-7) was the Secretary and accused Sh. Madhur Bhardwaj (A-8) was the Treasurer of the said Society for the period 27.01.2001 to 27.12.2002 (A-7 till 14 July, 2002).
154. The allegations against A-6 are that he became the member of the Society on the request of A-1, and since the Society was not able to make arrangement of the finances i.e. 35% of the cost as demanded vide offer-cum-allotment letter dated 02.11.2000 by the DDA, he illegally inducted new members known to him in the Society by accepting the forged resignation of old Promoter members, to raise the finances.
155. Accused Rupali Kukreja (A-7) and accused Madhur Bhardwaj (A-8) are also alleged to have accepted the aforesaid forged resignation letters of old Promoter members in connivance with A-6.
156. It is thereby the case of the prosecution that the resignations, affidavits etc of the said Old Promoter Members were also forged and fabricated, and A-6, A-7 and A-8 had accepted the said resignation letters knowing them to be forged in furtherance of the conspiracy so hatched between the accused persons to achieve their object.
157. First to state that, it is not one or two resignations that were accepted by A-6 to A-8 but were about 50 promoter members whose resignations were accepted by them, not in one go but periodically and systematically during their tenure at different dates.
158. The large scale resignations of the promoter CBI Case No. 194/19 68 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) members, who had taken the membership a way back in the year 1982, i.e. about 20 years ago, so accepted by them without even verifying the genuineness of the resignations is by itself a strong indicator of their culpability of being part of the conspiracy alongwith other accused persons ;
-and it also appears to be the case that being aware that all the said resignations were false, forged and fabricated they intentionally and deliberately choose to remain silent and did not take any steps to follow the prescribed procedure and established rules under DCS Act/Rules.
159. But I have my other reasons to suspect their culpability into the conspiracy for the reasons that the very genesis of accused A-6, A-7 & A-8 of their coming into the affairs of aforesaid Society is premised on false and fabricated proceedings.
160. The proceedings of the Society noted in AGM dated 27.01.2001 so conducted may be noted in this regard.
161. PW-1 Ayodhya Devi is shown to be present in the aforesaid AGM. In her testimony she stated that she is illiterate, cannot sign and put her thumb impression instead of signatures, and specifically denied her signatures appearing on affidavit dated 12.09.2000 (D-4 page 49/C ) ; proceeding register of Rose Merry CGHS (D-8 page no. 14, sl. no. 25 point A) so exhibited, during her examination.
162. The AGM proceedings dated 27.1.2001 at Point Q- 733 to Q-734 and the exhibits referred above bears her signatures at point A at serial no.7, and during her testimony before the CBI Case No. 194/19 69 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) court she denied the signatures at point A on Ex PW1/A-16 (front-back page no. 57 of the proceeding register) where her presence is specifically noted.
- She testified that she does not know anything about the aforesaid Society. In fact, PW-1 had put her thumb impressions on the testimony given by her in the court rather than signing it under her name.
- Which indicates that Ms. Ayodhya Devi (PW-1) was not present on 27.01.2001 in the said AGM and her signatures are forged and false put by the then Management, or some other person on its behalf, to complete the quorum of AGM.
163. This fact is also corroborated by the testimony of PW-3 Sh. Vinod Kumar, who was shown present as 'Election Officer' and had allegedly conducted the proceedings of the GBM of the said day. He was declared hostile at the request of prosecution on the submission that the witness is deliberately and intentionally not stating the true facts before the court.
164. PW-3 was cross-examined by the learned PP and relevant facts to note, and which proves that no proceedings of the Society on 27.01.2001 as reflected in the proceedings register had taken place, is that the witness himself admits to the fact that he had seen the office of the Society only once when he had taken its membership i.e. on 05.10.1987 and deposited Rs. 110/-, and that thereafter he had not visited the office of the Society at all.
-Which implies that PW-3 was also not present in CBI Case No. 194/19 70 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) the office of the Society nor had taken part in the proceedings dated 27.01.2001 wherein his presence has been shown and alleged to have conducted the Election proceedings under his Chairmanship.
165. PW-27 Harpyari also corroborates the facts that the original records of the Society are forged and fabricated and that no such GBM or any proceedings took place on 27.01.2001 which is reflected in the records of the Society. Besides disputing the proceedings and her signatures appended thereto from the year 1997 onwards, she specifically denied her signatures at point C appearing at serial no. 8 against her name on the proceedings allegedly conducted on 27.01.2001.
- She further denied of being member of any Co- operative Group Housing Society, or even heard the name of Sheel CGHS or Rose Marry CGHS. Her husband PW-28 Sh. Mohan Lal has also testified that neither he nor his wife PW-27 had ever taken the membership of Sheel / Rose Marry CGHS.
- Thus, there was no question of her (PW-27) being present in any of the alleged aforesaid meeting/proceeding(s) of the Society where ever her presence is depicted thereto.
166. Further, PW-13 Sh. Jaspal Singh Sethi has also testified that the aforesaid proceedings dated 27.01.2001 are apparently false and fabricated, with no such GBM ever taking place.
167. He was one of the Promoter Member of the Society, having taken his membership in the year 1983. His membership in the Society is proved on record vide his Membership CBI Case No. 194/19 71 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) Application Form Ex PW4/G, intensive inquiry proforma at page 65/C Ex PW4/C and his Affidavit dated 16.08.1983 Ex. PW13/A.
168. During his testimony, after going through the alleged records of the Society, he denied his signatures which are appended on the proceeding register at number of places at different dates. He, after seeing proceeding register Ex PW1/C, specifically denied having attended any meeting on dated 27.01.2001 where his presence is shown at serial no. 45. He also denied his signatures appended at point B against his name in the said proceedings.
169. Significantly, the relevant proceedings dated 27.01.2001 wherein the presence of all these witnesses (PW-1, PW-3, PW-13 & PW-27 ) are marked, Elections are shown to have been conducted to elect the new Management, are signed by accused no.6 Sh. Harjeet Singh. And, the proceedings of the said date were written by accused No. 8 Sh. Madhur Bhardwaj in terms of the GEQD Opinion exhibited as Ex.PW-43/A to Ex. PW-43/D, highlighting the complicity of the accused persons in fabricating the records of proceedings dt 27.01.2001 to give colour to their illegal designs.
170. Further, the fact that the other proceedings of the Society conducted by them during their tenure are false and fabricated is also strengthened by the testimony of other witnesses examined by the prosecution discussed as under.
171. In the GBM of the Society conducted on 19.02.2002 under the Chairmanship of Sh. Harjeet Singh (A-6) with A-7 & A-8 in attendance as the Secretary and the Treasurer respectively, CBI Case No. 194/19 72 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) the Management Committee had accepted 21 such forged resignations of the members.
172. Prosecution has examined Sh.S Arvinder Singh Wadhwa (PW-4), Mr. Ramesh Kaul (PW-6), Ms. Mamta Goswami (PW-9), Sh. Ashok Chawla (PW-10), Ms. Leena Nayar (PW-11) on behalf of her husband, to show the falsity and the forgery so committed in the aforesaid resignations accepted by the accused persons.
173. They all testified that though they had become the members of the aforesaid Society in the year 1983, and also identified their signatures on the relevant documents executed at the time of taking the membership i.e. Application for membership,Application for registration of the Society, Intensive Enquiry Proforma, and their respective affidavits, but they all specifically denied to have ever resigned from the membership of the Society ; they further denied having tendered any resignation letter and the signatures appended thereto purported in their names and against their membership number, when it was put to them during their examination before the court.
174. The testimony of PW-33 Sh. Kailash Chand known to accused Sri Chand A-1, he being his brother-in-law (Jija), and his resignation was also accepted on 07.09.2002 by these accused persons, may also be noted herein.
175. PW-33 deposed that though he had become a member of some Society a long time about 30 years ago but do not remember its name, and that he had also resigned from the said Society as he was not having the means to pay the CBI Case No. 194/19 73 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) membership fees.
176. He denied the signatures at point Y-1 against serial no. 13 on the register, and at point Y-2 on the membership register Ex PW21/B, and at Y-3 and Y-4 of affidavit dated 12.09.2000 exhibited as Ex PW18/A-11, to be his genuine signatures purportedly shown against his name.
177. It is important to note that PW-33 has specifically denied even heard of any such Society by the name of Sheel / Rose Marry CGHS ; he stated that the proceeding register, affidavits and other documents of the Society in his name are false and fabricated, and therefore, there was no question of him tendering any resignation from the Society.
178. PW-33 further denied the signatures appended on the resignation letter exhibited as Ex. PW33/A purportedly in his name, when shown to him during his deposition before the court.
179. And importantly, the aforesaid forged resignation of PW-33 as noted earlier was accepted on 07.09.2002 during the tenure of second management i.e. A-6 to A-8, in terms of the proceeding register of the Society.
180. Moreover, the said proceedings and the affairs of the Society so conducted by these accused persons have not been disputed in so far as A-6 and A-7 are concerned. A-8 has disputed some proceedings which are discussed in the later part of the judgment.
181. Similarly, A-6 to A-8 were also part of the Management Committee, which accepted other forged CBI Case No. 194/19 74 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) resignations of the members of the Society on dated 19.03.2002, 14.04.2002, 23.05,2002 & 28.06.2002 and the testimony of witnesses namely Sh.Vinod Dua (PW-3), Sh Mukesh Kumar (PW-40), Sh. Vijay Bajaj (PW-14), Smt. Ayodhya Devi (PW-1) and Sh. Hemant Kumar (PW-8) proves the fact that the said resignations were also forged and the signatures appended on the said resignation letters were not their genuine signatures.
182. All these witnesses were cross-examined on some superfluous grounds by the defence counsels mainly to say that they had not made any complaint to any authority or to the police regarding the forgery of their signatures alleged to be committed on the documents, or that they had some other property in Delhi when the membership was taken, may be to show that their membership was in contravention to the rules so framed under DCS Act.
183. I may say that cross-examination so conducted by itself does not lead to any inference that no forgery of the documents was committed, nor does it take the case of the accused persons to any conclusion about their innocence ; nor to say that violation of DCS Act and Rules at the time of taking membership or subsequently gives right to any person to commit forgery or to fabricate the records of the Society.
184. PW-14 was the original Elected Secretary of the Society during the year 1983 and, he after going through the proceedings register and other records of the Society, specifically deposed to the fact that the proceedings register (D-8) of the Society maintained by the accused persons was not the original CBI Case No. 194/19 75 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) register of the Society in which proceeding were conducted/noted during his tenure as Secretary, besides testifying regarding falsity of the other records of the Society including his signatures appended thereto at number of places on the proceedings alleged to have been conducted from 24.10.1983 to 26.01.1988 and reflected in the aforesaid register.
185. The GEQD expert has further opined that the questioned signatures purportedly in the name of Sh. Vijay Bajaj does not match with his specimen signatures.
186. His cross-examination was also premised on somewhat similar grounds regarding lodging of complaint, if any, with any authority about the forgery of his signatures and records; and on other immaterial facts about removal of five members of the Society during his tenure in the year 1984, basically not touching upon the merits of the accusations leveled against the accused persons.
187. It is important to note that Sh. Vijay Bajaj, PW-14 was the initial and/or original Secretary of the Society at the time of its inception in the year 1983-84 and his testimony thereby assumes significance and needs much weight-age, and he has testified to the fact that entire records of the Society are false and fabricated.
- And he specifically denied the signatures on the purported Resignation Letter dt. 14.04.2002 in his name and accepted by accused A-6 to A-8 during their Committee Meeting held on 14.04.2002.
188. The proceedings register exhibited as Ex PW38/A CBI Case No. 194/19 76 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) (D-8) specifically mentions, in every meeting, that the secretary i.e. Ms. Rupali Kukreja (A-7) informed the Committee member about the aforesaid resignations having being submitted by the members. A-8 further informed the committee that all the outstanding dues have also been paid to the said members.
189. All the facts noted and discussed above clearly points to the involvement to the accused persons A-6 to A-8 into fabrication of the records of the society, and their contentions to state that they had no knowledge about forgery of the record or that they were not aware of any falsity of the record of the Society is absolutely false and a misleading statement.
Role of accused No. 9 to 11 and their nexus with A-1 to A-8, if any:-
190. The allegations against them are also similar to that of accused A-6 to A-8 that they had also accepted forged resignations of about 5 Promoter members, and had also fabricated false proceedings of the Society during their tenure as the Office bearers of the Management Committee in concert with other accused persons to achieve the object of conspiracy.
191. One of the members whose resignation was accepted by accused no. 9 to 11 as President, Secretary and Treasurer respectively, was Sh. Bhanwar Pal examined as PW-2 by the prosecution.
192. Sh. Bhanwar Pal (PW-2) specifically deposed that the resignation letter and the receipt Ex PW2/C (D-14 page no.
36) purportedly in his name does not bear his genuine signatures at point A and B, when shown during his examination. The falsity CBI Case No. 194/19 77 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) of the resignation-cum-receipt was duly proved on record.
193. Similarly, Sh. Vinod Kumar, PW-3 is another member whose resignation was accepted by this management.
194. He stated that accused Sri Chand (A-1) is his jija ji/ sister's husband. He stated that he had become the member of the Society but failed to state as to when the application was sent or as to when the membership was taken.
195. The witness hesitantly appears to have admitted the purported signatures against his name on the documents of the Society. He stated that he had resigned from the Society and that the signatures appearing on the resignation form might be his own signatures. He resiled from his earlier statement and thereby was declared hostile by the prosecution.
196. In the cross-examination conducted on behalf of the prosecution his demeanor and the falsity in his testimony qua his purported signature was noted by the then Presiding Officer, during his examination.
197. PW-3 was also directed to give specimen signatures on a piece of paper which was taken on record and exhibited as Ex PW3/C-1, and it was observed by the predecessor court that none of the signatures on Ex PW3/A (Application form) & Ex PW3/B (Affidavit) allegedly in his name resembles with the signatures given by him during his examination in the court.
198. In his cross-examination also he was evasive and deliberately avoided the direct answers to the question put to him indicating that he was intentionally trying to mislead the court on CBI Case No. 194/19 78 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) the facts known to him.
- But on a specific question by learned PP about the manner, the time and through whom he had resigned, PW-3 was completely elusive. He was not even aware about the date, month and the year when he had tendered his resignation.
- He was not even aware what was written in the proceeding register of the Society or any other document relating to it where his signatures are appended. He was also evasive on the questions through whom he had become the member of the Society and whether he had attended any meeting of the Society.
- He was also not even aware about the address of the Society, neither at the time of taking the alleged membership nor even thereafter.
199. His testimony is also contradicted by his own statement wherein he had stated that he had seen the office of the Society only once when he had deposited a sum of Rs. 110/- i.e. 05.10.1987, and that thereafter he did not visit the office of Society (as noted earlier). Whereas the proceedings and another documents of the Society are of different dates wherein he hesitantly seems to be admitting his purported signatures appended against his name or against the said documents.
200. In the back drop of above noted facts the testimony of PW-3 does not inspire confidence in that regard, and he appears to be willfully making false and mis-leading statements. He does not appear to have taken any membership of the Society nor had ever thereby tendered any resignation. The said resignation and the receipt thereto are false documents created by CBI Case No. 194/19 79 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) the accused persons to suit their own interest.
201. The GEQD opinion with respect to aforesaid documents further corroborates the fact that the said affidavit and resignation letters were not executed by PW-3 Vinod Kumar. wherein the GEQD in terms of para no. 6 of GEQD report dated 17.09.2007 part of D18/4 page no. 4 has opined that the questioned signatures at Q-80, Q-81 and Q-446 & Q-447 does not match with the specimen signatures from point S-43 to S-50 of Sh. Vinod Kumar PW-3, so taken during investigation.
202. Similarly, Smt. Harpyari PW-27 also deposed to the fact that she had not taken membership of the said Society (Rose Marry CGHS ) and the signatures appended on the membership form and other various proceedings are not her genuine signatures ; additionally, thereby denying having tendered any resignation and the signatures thereto are also not her genuine signatures.
203. PW-35 Mr. Patras another alleged member whose resignation was accepted by these accused persons during their tenure on dated 19.11.2003, also deposed to the fact that he had not taken any membership but his signatures were taken by accused Sri Chand (A-1) on some blank papers. He is directly related to the accused A-1 Sri Chand and had worked with A-2 and A-3 alongwith A-1 for about 5 years or so in the same office. He testified to the fact that the records of the Society in his name were prepared by accused Sri Chand A-1 (as discussed earlier).
Forgery apparent on the face in the resignations so accepted during the tenure of A-6 to A-11 :-
CBI Case No. 194/19 80 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS)
204. It may be noted that all these resignations in question are shown to have been addressed to the Secretary, Sheel CGHS, the erstwhile name of the Society, and not to in the name of Rose Marry CGHS, as by the time the Society had undergone change in its name from 'Sheel CGHS' to 'Rose Marry CGHS' on dated 02.11.2000.
205. The payment allegedly shown to have been refunded to the said resigned promoter members is also made part and parcel of the resignation letter, on the same page underneath, in complete disregard to the provisions of DCS Act and Rules.
206. Interestingly, all the said 50 (accepted during tenure of A-6 to A-8) and 5 (accepted during tenure of A-9 to A-11), false resignations were in one format, taken out mechanically in an identical manner ; with same identical mistakes/placement of punctuations like comas (,) and full stops(.) wherever ; identical reasons for resignations ; the manner in which the resignation and receipts are printed on the same page and the manner in which payment shown to have been made, in clear violation of the DCS Act and Rules ; and importantly the said 12 members allegedly inducted on 05.10.1987 members were directly related to the accused Sri Chand (A-1) in terms of the testimony of the said concerned persons/witnesses discussed above.
207. All these factors and the ambiguities in the resignation letters were sufficient to raise a suspicion qua their genuineness but appears to have been deliberately and intentionally over looked by these accused persons for the reasons known to them.
CBI Case No. 194/19 81 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS)
208. Significantly, all the said resignations of the promoter members so accepted bears the date(s) of their tenure. So, implying thereby that the accused persons had also played active role not only in accepting those resignation but also in fabricating the same by putting the relevant dates of their acceptance to give an impression that the same were tendered and accepted by them in the normal course of the affairs of the Society, to induct the new members of their own choice with ulterior motives.
209. The question also arises how the dates were reflected on the said forged resignations or who had filled the dates on the said 55 forged resignations, and no explanation of any kind is forthcoming on behalf of the accused persons in this regard.
210. At this stage, provisions of Section 106 of the Evidence Act may be noted, which states that - when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. And herein, besides vaguely stating in terms of their statement under section 313 CrPC that the resignations were accepted as per records, accused persons A-6 to A-8 have remained completely silent and evasive on to the facts about the forgery of the resignation letters, the date(s) so mentioned on it by them or by any other person, or from where it came on record or as to who had handed over the said resignations to them.
211. It may be noted here that the office bearers of the so called immediate previous management of the Society, from CBI Case No. 194/19 82 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) whom they could have at best taken the records of the Society, are all accused herein respectively.
212. A-2 Anna Wankhede (alleged Secretary), A-3 S.K. Sharma (alleged Treasurer) & A-4 Sohan Pal (alleged President- since expired) were office bearers from 1987 onwards, and A-2 & A-3, have both completely denied their association with the Society or its affairs of any nature whatsoever, in terms of their statements u/s 313 Cr PC, contradicting the stand taken by the accused A-6 to A-8. Similarly A-9 to A-11 are also completely silent and evasive on all these aspects.
213. And, if the records were taken from accused Sri Chand (A-1) who was neither shown as the member of the Society nor in any manner associated with its affairs in terms of the records / proceedings so fabricated by the accused persons, then the said fact by itself points to the complicity of the accused persons in the case crime and their association with accused Sri Chand (A-1), the master mind through his employees/dummies A-2 & A-3.
214. In addition to that, it may also be noted that the date on the 'Resignation(s)' on top and the date at the bottom of the same page under the heading 'Receipt(s)' reflecting the payment are different, and there is a gap of number of days, in some cases more than a month or so, in processing the final refund of the said resigned members.
215. So, I failed to comprehend how the signatures of above said persons came on the said receipts lateron, if it was not there at the time of accepting the respective resignation(s) on the CBI Case No. 194/19 83 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) dates so mentioned therein.
216. It is not the case of the accused nor can it be that the signatures on the receipt were appended by these persons lateron, at the time of receiving the refund of the share money / full and final settlement amount.
217. Implying thereby, that the alleged signatures of the members amongst others :
• at Questioned Signatures-A (Resignation dated 16.05.2002) and Receipt dated 20.12.2003 of Ms. Ayodhya Devi (PW-1), and accepted on 23.05.2002 ;
• at Q-376- (Resignation dated 14.02.2002) and Q- 377 ( Receipt dated 23.03.2002) of Sh. S. Arvinder Singh Wadhwa (PW4), and accepted on 19.02.2002 ;
• at Q-366 (Resignation dated 15.02.2002), and Q-367 (Receipt dated 27.03.2002) of -Smt Mamta Goswami (PW9), and accepted on 19.02.2002 ;
• at Q-362 (Resignation dated 08.04.2002) and Q-363 ( Receipt dated 20.05.2002) of Sh. Vijay Bajaj (14), and accepted on 14.04.2002 ;
• at Q-354 (Resignation dated 17.05.2002), and Q-355 ( Receipt dated 01.08.2002) of -Sh. Hemant Kumar (PW8), and accepted on 23.05.2002 ;
• at Q-76 ( Resignation dated 12.11.2003 ) and Q-77 ( Receipt dated 20.12.2003 ) of Mr. Patras (PW-35), CBI Case No. 194/19 84 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) and accepted on 19.11.2003 ;
• at Q-80 ( Resignation dated 10.10.2003 ) and Q-81 ( Receipt dated 18.11.2003 of Vinod Kumar (PW-3) and accepted on 15.10.2003 ; and • at Q-82 ( Resignation dated 10.08.2003 ) and Q-83 ( Receipt dated 26.09.2003 of Bhanwar Pal (PW-
2)), and accepted on 18.08.2003 ; wherein ' refund of Share money and as full and final payment made to the member(s) is reflected ', were already existing even at the time when their resignations were accepted on the dates so mentioned therein, with the receipts being part of the same document and allegedly issued subsequently, indicating the falsity of the record and knowledge and participation of the accused persons to its forgery.
218. Similarly is the case of Smt. Harpyari PW-34 wherein there is a gap of about 49 days which is evident from her Resignation-cum -Receipt in her name. The alleged signatures of Smt, Harpyari were there at both the places marked as Point A on Ex PW27/C even at the time when her resignation is alleged to have been accepted on 20.12.2003, indicating the knowledge of the accused persons to its falsity and its fabrication thereto.
219. Thus, to content that the accused persons were not aware about any manipulation in the resignations and receipts is absolutely without any substance and does not find favour with the court.
220. This finding finds further support from the fact that CBI Case No. 194/19 85 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) the resignation of accused persons A-6, A-7 & A-8, which was subsequently accepted during third management was in a different and proper format, with separate resignation and separate full and final payment receipts issued subsequently.
221. Further, it is true that A-6 to A-11 came into picture after the Society was revived on 08.09.2000 and the freeze list was sent to the DDA for allotment of land.
222. But important to note that prior to A-6 to A-8 taking over the Management of the Society only 12 such forged resignations of the members were accepted, whereas A-6 to A-8 had accepted about 50 such forged resignations systematically and in a well planned manner during their tenure without actually conducting any genuine proceedings of the Society.
223. It was not a coincidence or an inadvertence or negligence on the part of the accused persons that the 55 Forged Resignations (50 during tenure of Second Management & 5 during Third Management), got accepted despite their being glaring ambiguities on the face of it. Rather, it was a deliberated and calibrated act on the part of the accused persons. Bare looking at the resignations raises a strong suspicion qua their genuineness.
224. It may be stated that it is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. The part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the CBI Case No. 194/19 86 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) conspiracy and when he left. The actors may drop-out in between and others may join-in continuity to seek the common object.
225. I must say that the proceedings have been carefully drafted by the accused persons in a calibrated manner to give it a colour of genuineness by showing the Refund receipt of subsequent date, as was mandated by the DCS Act and Rules, which on the face of it is contrary to the resignation-cum-receipt accepted by the accused persons and then filed on record.
226. Nextly, the contentions of the accused mainly accused Pawan Kumar Sharma (A-9) and Rakesh Kumar Girotra (A-10) that they were bonafidely acting as the Office bearer of the Society and in pursuance thereto these resignations were accepted is also a misleading statement for the reasons :-
226.1 that even prior to becoming the office bearers of the Society they were actively participating in its affairs alongwith accused Harjeet Singh (A-6), Rupali Kukreja (A-7) and Madhur Bhardwaj (A-8) which is evident from the proceeding register of the Society as per notings so maintained in the said register.
226.2 In this regard the relevant proceedings may be noted herein.
226.3 In the meeting of the Management Committee dated 14.07.2002 which was under the aegises of Chairman Sh.
Harjeet Singh (accused A-6), and also acting in the capacity of President of the Society, in which accused Madhur Bhardwaj (A-
8) was also present, it was discussed and resolved thereafter to appoint accused Rakesh Kumar Girotra (A-10) as the Executive Member as he was taking active part in the day to day activities CBI Case No. 194/19 87 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) of the Society and had introduced number of persons to it.
226.4 And later in terms of Item No. 4 of the said meeting accused Rakesh Kumar Girotra (A-10) was appointed as 'Secretary' on the recommendations of accused Harjeet Singh (A-
6) and seconded by accused Madhur Bhardwaj (A-8 ).
226.5 The next meeting of the Management Committee dated 25.08.2002 which was again presided by Harjeet Singh (A-6), Madhur Bhardwaj (A-8) and Rakesh Kumar Girotra (A-
10) amongst other members is also relevant to note that in the said meeting. Sh. Pawan Kumar Gupta (A-9) was appointed as 'Chairman' unanimously to help the Society in its day to day affairs, on the recommendations of accused Harjeet Sngh (A-6).
226.6 At this stage, it may also be noted that though A-9 was appointed as Chairman but the subsequent meetings of the Management committee continued to be headed under the Chairmanship of accused Harjeet Singh (A-6), with accused Madhur Bhardwaj (A-8) and accused Rakesh Kumar Girotra (A-
10) in attendance amongst others ; and importantly accused Pawan Kumar and Rakesh Girotra were also jointly authorized to operate the bank accounts of the Society in the same meeting.
226.7 In the meetings dated 15.09.2002, 23.09.2002, 24.11.2002 and 27.12.2002 accused Pawan Kumar Sharma (A-9) was himself present and participating in the meetings of the Management Committee alongwith accused Madhur Bhardwaj(A-8), Rakesh Kumar Girotra(A-10), and accused Harjeet Singh (A-6) who was still acting as Chairman of the Society till that time.
CBI Case No. 194/19 88 of 118
CBI vs. Sri Chand etc (Rose Marry CGHS)
226.8 Further, in the Proceedings dated 15.09.2002 in
terms of 'Item No. 2: discussed about loan', it was discussed and unanimously approved that "Resolved that Sanction be and is hereby given for the Rose Marry Apartment CGHS to borrow from Indian Bank, Janakpuri Branch, Delhi by way of loan against third party deposit of M/s Antriksh Engineers Construction Corporation (R.Yadav and Rakesh Rao) rupees Twenty Five Lakh against pledge of deposit of above named party ..................... "
226.9 In terms of the above said resolution the documents were placed before the Committee and were approved and executed by Sh. Pawan Sharma (A-9 here) as Chairman and Sh. Rakesh Kumar Gairotra (A-10) as Secretary, and the amount was to be utilized for the purpose of giving advance for land and other miscellaneous purposes.
226.10 It may further be noted here that Sh. Pawan Kumar (A-9), Sh. Rakesh Kumar Gairotra (A-10) & Sh. Rajesh Shorey (A-11) together presided over the Management Committee of the Society for the first time on 19.01.2003 as a President, Secretary and Treasurer respectively. The manner in which Sh. Pawan Kumar (A-9) became the President of the Society is also conspicuously missing from the records of the Society so fabricated, as earlier he was only nominated as the Chairman of the Society.
226.11 So, all these proceedings noted above and conducted on behalf of the Society shows that accused Pawan Kumar Sharma (A-9) and accused Rakesh Kumar Girotra (A-10) were CBI Case No. 194/19 89 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) also actively involved into the affairs of the Society alongwith A-6 to A-8 even prior to assuming the charges of the respective posts of Management as The President and The Secretary.
226.12 The foundation of coming to the helm of affairs of the Society of A-9 & A-10 is fraught not only with irregularity in terms of DCS Act & Rules but with illegality.
227. Importantly, none of the accused in the so called 2nd Management and/or 3rd management have disputed the veracity of the proceedings noted there-in, except to some extent by A-8.
228. Moreover, the GEQD has also opined and attributed the questioned signatures on the proceedings register in terms of their act/ proceedings undertaken by them to the accused persons wherever necessary.
229. Nextly- It was argued on behalf of accused Madhur Bhardwaj A-8, that he had never acted as a Secretary, and was only the Treasurer of the Society during the relevant time, and in terms of the DCS Act & Rules so framed, it is only the President or may be the Secretary of the Society who can accept the Resignation of its member(s) and can induct new member, and hence, A-8 never had the Authority or Power or Occasion to accept the resignation of any member of the Society.
230. It was urged that he had attended only one or two meetings of the Management Committee of the Society during his tenure as a Treasurer, and in that also, no resignation(s) of any of the member(s) was accepted, and in some of the meetings wherein the alleged forged resignations were accepted, he was CBI Case No. 194/19 90 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) not part of the said meetings of the Committee and his signatures reflected therein have been forged.
231. It was argued that Investigating Officer PW-42, admitted in his examination that A-8 never acted as Secretary of the Society and he was only the Treasurer ; that nor there is any evidence on record to show contrary to the said fact ; he further admitted that the role of A-8 as a Secretary is wrongly mentioned in the Charge-sheet. The question therefore of A-8 accepting the resignation in his capacity as Secretary does not arise at all. Thereby, submitted that accused A-8 is innocent and has nothing to do with the alleged affairs of the Society vide which the records were fabricated, nor was he part of any conspiracy.
232. There appears to be no dispute qua his status as Treasurer of the Society and the IO has inadvertently mentioned him as Secretary at some places.
233. I would have found force in the submissions of the learned counsel for A-8 that being the Treasurer his role was limited and confined to the financial affairs of the Society, or that he merely participated in the proceedings in which the President and the Secretary had informed the Committee members about the aforesaid resignations tendered by the members, in terms of the proceeding register so placed before the Court and also relied upon by the prosecution.
234. But fact remains the role / act of A-8 is not only confined to being present in the alleged meetings of the Society wherein forged resignations were accepted, but as it has been proved by the prosecution through the GEQD expert that in fact CBI Case No. 194/19 91 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) A-8 was instrumental in preparing the false proceedings of the business (election proceedings etc) of the Society transacted in its GBM held on 27.01.2001.
235. As discussed in the earlier part, the entire proceedings of 27.01.2001 were false and fabricated, no GBM at all had taken place ; the question of any election being conducted thereto did not arise at all.
236. Accused (A-8) himself has denied ever attending any such General Body Meeting on 27.01.2001 or writing the aforesaid proceedings. But PW-43, Sh. S. Shah, the GEQD expert has opined that the proceedings dated 27.01.2001 were written by A-8 in his handwriting, in terms of his opinion Ex PW43/A to Ex PW43/D of questioned writing at Q-733,Q- 734,Q-735,Q-736 & Q-737. There is nothing in the cross- examination to impeach the credibility of this witness or his analysis of the documents in question.
237. And importantly, the proceedings dated 27.01.2001 are shown to have been signed by accused Harjeet Singh (A-6) after its culmination into final approval of the Election proceedings. Besides the GEQD opinion on the questioned signatures at Q-686 to be that of accused Harjeet Singh A-6, and he has also not disputed the said signatures.
238. The facts noted above thereby clearly indicate that A-8 was not only acting as a designated Treasurer but was actively involved in preparing the false record of the Society in concert with other co-accused persons especially with accused Harjeet Singh A-6, even prior to him assuming the office of the CBI Case No. 194/19 92 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) Treasurer of the Society.
239. His arguments that he was not present in the meetings conducted by Management of the Society dated 19.02.2002, 14.04.2002, 27.04.2002, 23.05.2002, 14.07.2002,
25.08.2002, 15.09.2002 23.09.2002, 24.11.2002 and 27.12.2002, wherein the forged resignation of the promoter members were accepted, also finds no favour with the court in terms of a opinion furnished by the handwriting / signature expert PW-43, wherein he has opined via Ex PW43/D dated 04.11.2008 that the questioned signatures at point Q-740, Q-741, Q-742, Q-743, Q-744, Q-745,Q-746, Q-747, Q-748 and Q-749, on the meetings so held and presence of A-8 is specifically marked, are that of Sh. Madhur Bhardwaj A-8, when compared with his specimen signature S-190 to S-196 D 110/4 taken during investigation by the IO.
240. Though, A-8 had disputed the GEQD opinion stating that it was given in a mechanical manner and hurriedly without any scientific analysis, and that it was not humanly possible for an expert to give opinion on about 250 disputed signatures within a span of four - five days. He also examined his own defence witness to controvert the testimony of GEQD expert by that the signatures, except meetings dated 03.02.2002 and 17.02.2002, appended on the proceedings against his signatures are not his genuine signatures.
241. DW-2 a private handwriting expert has given his opinion Ex DW2/1 wherein he after comparing the disputed signatures and the admitted signatures produced on record via CBI Case No. 194/19 93 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) testimony of DW-1, Bank Official, opined that the disputed signatures at Q-732 to Q-738 and Q-740 to Q-749, except Q-732, Q-738 and Q-739 wherein no opinion was expressed, are not the signatures of accused Madhur Bhardwaj A-8.
242. But I must state that the opinion so furnished by DW-2 appears to be unconvincing and a biased one for the reasons that :-
Firstly, the genuine signatures Q-732 and Q-738, itself admitted by A-8, appearing on the proceedings register were not sent for analysis alongwith other disputed signatures.
Secondly, the opinion of the expert (DW-2) regarding in-consistency in the placement of words Madhur and Bhardwaj in two set of signatures is also no ground to reach to the conclusion that it could not have been signed by A-8 in the said manner.
- So, just because placement of two words of 'the signatures' is in different format does not mean that they are not signed by one and the same person.
Thirdly, the accused A-8 was well aware about his earlier signatures appended on the bank account opening form as HDFC bank in the year 2003 at the time when he sent his specimen signatures / sheets for analysis in the year 2018, after getting it verified by the concerned bank.
243. The specimen signatures appears to have been intentionally matched by accused A-8 with his admitted signatures available in the records of the concerned bank and sent CBI Case No. 194/19 94 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) for analysis to seek a favourable opinion to support his case.
244. So the stand taken on behalf of A-8 to say that he was not present in the said meetings can not be believed to be true.
245. Alternatively, I may state that if the case so put forth by A-8 is taken on its face value that he had not attended the aforesaid meetings and his signatures are forged, it by itself implies and proves the fact that the records of the Society were forged and fabricated, false proceedings were noted in the registers of the Society, without their being any actual proceedings of the Society, as the stand so taken by accused A-8 is totally contradictory to the other accused persons A-6 and A-7 who are relying upon the said proceedings claiming it to be genuine.
246. On the other hand, I find force in the submissions of Ld. Counsel for the accused Rajesh Shorey A-11. The allegations against him are also somewhat similar to A-9 and A- 10 to say that he was also part of the Management Committee which accepted the 5 resignation letters.
247. It may be noted that his role and status is limited and confined to being only the Secretary of the society. Nothing has come on record to indicate that accused Rajesh Shorey was actively involved into the affairs of the Society during his tenure as a Treasurer or prior and / or subsequent thereto.
248. First to say, he has attended those meetings where the (5) false resignations were accepted in his capacity as a Treasurer. And being a Treasurer, his role and duties were CBI Case No. 194/19 95 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) mainly confined to look after the financial aspects of the Society. The main role of keeping the records of the Society including the membership applications and / or resignations or other documents was that of the President and the Secretary.
249. Secondly and importantly, the proceedings register is itself reflective of the fact that the information regarding the alleged resignations including the forged ones was given before the committee by Sh. Pawan Kumar Sharma (A-9), the Chairman.
250. Though, it is also mentioned therein in the proceedings register that the Chairman informed the Committee members that the said resignation letters were handed over by Ex-President Sh. Harjeet Singh (A-6), but the said line of defence was never taken by the accused persons (A-9 & A-10) neither at the time of cross-examining the witnesses nor in terms of their statement u/s 313 Cr.P.C, nor can they take the benefit of the same by mentioning the name of other person in a clandestine manner.
- They cannot take the benefit of their own fault by creating documents to the disadvantage of other persons, nor can they take everyone by surprise at the end of the trial, without it being tested on the touchstone of the cross-examination and scrutiny of the court.
251. The facts about inducting new members to the Society on their applications were also informed orally by the Chairperson to the Members of the Management Committee.
252. Prosecution has also not lead any other evidence to CBI Case No. 194/19 96 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) show that the factum of forgery of the said resignation letters were within the knowledge of accused Rajesh Shorey (A-11) at the time of their acceptance or even prior to that or that the same were furnished before the Committee members by the Chairperson (A-9) for their consideration.
253. Besides that prosecution has also not lead any evidence to show that (A-11) had participated in any other activity of the Society in any manner whatsoever, nor is it reflected from the proceedings of the society so mentioned. There is no other act attributed to him except being present in the meetings.
254. Thus, in the given facts of him being simply present in the meetings of the committee wherein the decision was taken on the information so furnished by the President and the Secretary, and reading the same in the light of the fact that no other act is attributed to accused A-11, nor is there any other evidence on record to show his involvement in the affairs of the Society, it cannot be conclusively said that accused A-11 was having the knowledge of the factum of forgery of the resignations, or that he was consensus ad idem with A-9 or A-10 or other accused persons.
254.1 It can be a lapse of a duty or an negligent act but would not be safer to impute any criminal intent to his acts. Thereby, in my considered view the benefit of doubt needs to be given to accused Rajesh Shorey (A-11).
CBI Case No. 194/19 97 of 118
CBI vs. Sri Chand etc (Rose Marry CGHS)
OTHER ARGUMENTS
Act Of Accused Persons prepration Only ? No
255. The contention of the accused persons to say that the records were not used by the Society before any Government Agency or DDA, and the act of the accused persons namely A-6 to A-11 at best can be said to be at the stage of preparation only, and thereby no case is made out against them is without any substance.
256. In fact, on the contrary, it proves the fact that the proceedings reflected in the register of the Society are false and fabricated, and were in total contravention to DCS Act and Rules and any information regarding the said manipulation of the records to the RCS Office would have disclosed their complicity in fabricating the records.
257. Further A-6 and A-9 had also made correspondence with the DDA for allotment of land in their capacity as office bearer of the Society therefore to say that the records have not been used by the accused persons in any government department is also without substance.
258. PW-34 the official of the DDA was examined by the prosecution to prove the records and the correspondence exchanged between the RCS Office and Office bearers of the Society.
259. PW-34 has proved on record a letter dated 27.03.2002 written by Sh. Harjeet Singh A-6, wherein the Society had informed about the deposit of Rs. 80 lacs by it CBI Case No. 194/19 98 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) exhibited as Ex PW34/D. The said fact is also not denied by the accused A-6.
260. A letter dated 17.03.2003, Ex PW34/E wherein the Society informed about the change of its name, and a letter dated 10.07.2003 wherein the Society sought permission to mortgage the said plot of land ( allotted in terms of letter dated 13.02.2003 issued by Deputy Director M.C. Singhal ), and another letter dated 14.08.2003 wherein the Society had informed about depositing the balance amount through bank challans to DDA exhibited as Ex PW34/K, is also proved on record by PW-34.
261. The aforesaid correspondence was undertaken by the accused persons under the signatures of accused Pawan Kumar Sharma ( A-9).
262. Further, the rights of the genuine/promoter members stands forfeited, their rights were prejudiced, by the act of the accused persons in accepting the forged resignations and inducting new members in their place. So to say, that the act of the accused persons was merely a preparatory is untenable in the given facts and circumstances.
Qua the original records of the Society :-
263. Further, it was unconvincingly argued by the learned counsel for the accused persons that the prosecution has legally failed to prove the Proceedings Register of the Society and therefore, cannot be read against accused persons.
263.1 But suffice to state that firstly, as noted above, the accused themselves have not disputed the proceedings, in fact CBI Case No. 194/19 99 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) they are strongly relying upon the same ; and secondly, all the registers were seized by the IO pursuant to them being handed over by A-9 himself from his possession. Thereby the contention of the accused persons is untenable and stand rejected accordingly.
Qua evidentiary value of Expert Opinion
264. Again, common contentions were raised by the learned counsels for all the accused persons that GEQD opinion is not a substantive piece of evidence and conviction can not be solely based on it without its corroboration on material aspects from an independent source.
265. The law on the said aspect is no more res- integra. Question of Law is well settled. In fact, the authorities relied upon by the different counsels as well as the prosecution are no different on the point of law.
266. To cull out the basic and the governing principle concerning an expert opinion, its admissibility and evidentiary value, it is stated that there is no hard and fast rule which has crystallized into a rule of law to state that an expert opinion is a weak type of evidence and can not be acted upon or considered without its substantial corroboration, or that it can only be used as a corroborative piece of evidence, or that conviction can not be predicated solely on the basis even if it inspire confidence and suffers from no ambiguity. Contrary is only a rule of caution (Murari Lal Vs. State of UP 1980 AIR 531).
-So if the evidence of expert is clinching and CBI Case No. 194/19 100 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) trustworthy and, no prejudice or biased can be attributed to his testimony, I see no reason to disbelieve it or to state that it can not be acted upon without corroboration.
267. Moreover, as discussed above, in the present case there is plenty of ocular evidence to support the case of the prosecution and against accused persons, which is duly corroborated by the testimony of the GEQD expert. The contention of the learned counsel for the accused persons is untenable and accordingly stands rejected.
268. The above noted facts and circumstances and the evidence so discussed also indicates that accused Sri Chand (A-
1) through accused Anna Wankhede (A-2) and accused Sushil Kumar Sharma (A-3) was playing active role even during the tenure of so called second management and third management of the Society, whereby false proceedings of the Society were manufactured and prepared in furtherance of their common object.
269. Thus analyzing the evidence so produced, via testimony of witnesses and the documents so proved, on record it goes a long way to establish that the accused persons ( A-6 to A-
10) not only had the knowledge of the factum of the falsity of the said resignation letters but knowingly participated into its fabrication by affixing the dates on it at the time of acceptance of resignations and/or receipts as per their suitability.
270. In light of my above discussion, I have no hesitation to say that accused A-6 to A-10, were also part of the conspiracy hatched by other co-accused persons vide which the records were CBI Case No. 194/19 101 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) manipulated, false proceedings of the society were prepared with ultimate object was to seek land from the DDA and the forged resignations of old members were accepted, new were inducted in furtherance of said conspiracy. And further they prepared false proceedings of the Society during their tenure in cohort with A-1 to A-4 with the sole motive to seek allotment of land by inducting their own members to the Society for financial gains illegally.
Role & involvement of Accused (A-5 and A-12 )
271. Accused S.Subramanyam was working as Inspector Grade IV/LDC in the RCS Office at the relevant point of time, and it is alleged that pursuant to the criminal conspiracy with co- accused, he deliberately and intentionally submitted a false physical verification report regarding 12 Promoter Members, alleged to have resigned from the Society in the year 1987.
272. Accused S.Subramanyam (A-5) has not disputed the factum of submitting the verification report dated 19.09.2000, Ex PW36/C part of D-85 but he denied having committed any illegality in the verification process undertaken by him to finalize the said report.
273. However, the noting on the RCS's files are self explanatory of the false report prepared and presented by A-5. The act of the accused is per-se is intentional and dishonest. The noting files of RCS has not been disputed by any of the accused persons, especially the RCS Officials.
274. It is evident from the noting dated 15.09.2000 Page No 15/N (D-3/7) from point 'X to X' exhibited as Ex.PW36/B, CBI Case No. 194/19 102 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) wherein specific directions were issued to physically verify the resignations of 12 Promoter members and accused S.Subramanyam was appointed and assigned the task to carry out the physical verification of said resignations.
275. The said noting and file was duly proved on record by the PW-36 Sh. P.N. Manchanda ( the then Asstt. Registrar ), who had remained posted in the RCS Office from 26.06.1998 to 05.02.2001, and had directed physical verification of resignation of 12 Promoter Members, after the file was put up by the dealing assistant on dated 15.09.2002, by assigning the task to accused S. Subramanyam (A-5).
276. The noting dated 14.09.2000 explicitly shows that the Secretary of the Society had physically attended the office of RCS alongwith original record for its perusal. The relevant documents and the final list of 75 members for approval were also submitted in terms of Ex PW30/F.
277. Thereafter, it was noted by the then Assistant Registrar that there were 12 promoter members who had tendered their resignations and refund was also made to them by cash by the Society. The fact of resignations of the members was itself reflected from the original records, it was only pursuant thereto that the physical verification of those resignations was directed by the concerned official.
278. Meaning thereby, that the original records of the Society were readily available, however, to verify the genuineness of the resignations of the 12 promoter members, accused (A-5) was directed to visit physically and verify the said CBI Case No. 194/19 103 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) fact from the said members allegedly shown as resigned from the membership of the Society.
279. Had it being the verification from the records itself, as was argued by learned counsel for A-5, there was no requirement of any physical verification as the records were itself available with the Officials of the RCS.
280. The stand taken by the accused A-5 is further belied by the verification report Ex PW36/C, wherein it is specifically mentioned that :-
"It was also confirmed from the other members that they have really resigned from the primary membership of the Sheel Cooperative Housing Society CGHS Ltd and received full and final payment from the Society and nothing is due against the Society."
- Accused S. Subramanyam A-5 in his report further stated that "further there were no complaints of any of these members ......"
281. Evident it is, contrary to the stand taken by the accused A-5, the report itself indicates that A-5 had personally visited or contacted the said primary members and had confirmed about their resignation / no dues and no complaints. The report Ex PW36/C submitted by A-5 is not disputed by him. The signatures of A-5 appearing at Q-685, on the said report has also been opined to be that of S.Subramanayam by the GEQD expert.
282. It was contended by the learned counsel for accused A-5 that there is no provision under DCS Act & Rules to CBI Case No. 194/19 104 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) physically verify the records of the Society and that the accused had submitted the Verification Report in terms of the documents of the Society so produced before him.
283. Firstly, I do not concur with the submissions of learned counsel for the accused (A-5) that there is no provision for the physical verification of the records.
283.1 Section 54 of RCS Act may be noted in that regard wherein specific provision has been provided for inspection of the co-operative Society and for the sake of convenience, I quote Section 54 of RCS Act hereunder :-
54. Inspection of societies.--The Registrar, or any person authorised by general or special order in this behalf by him, may inspect a co-
operative Society.For the purpose of inspection, the Registrar or the person so authorised by him shall at all times have access to all books, accounts, papers, vouchers, securities, stock and other property of the Society and may in the event of serious irregularities discovered during inspection take them into custody and shall have power to verify the cash balance of the Society and subject to the general or special order of the Registrar to call a committee meeting and a general meeting. Every officer or member of the Society shall furnish such information with regard to the working of the Society as the CBI Case No. 194/19 105 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) Registrar or the person making such inspection may require 283.2. Secondly, there is no bar nor any provision was cited that an official can not go and physically verify the records of the Society from its members. Taking a literal and a common parlance meaning of the word 'physical' its implies to have direct contact or touch with a thing.
283.3 Thus, the arguments of learned counsel for A-5 to the contrary finds no favour with the Court, and it cannot be said that A-5 had submitted a true and correct verification report.
284. As noted above, the report was completely false, de-
hors the directions issued by the RCS, and in term of its own contents as reflected from the report itself to give benefit to the accused persons and to mislead the higher officials.
285. The learned counsel for the accused has also disputed the 'Sanction accorded' against the accused stating that it is irregular, illegal and can not be read against the accused (A-
5) as he was not working under the authority who had accorded sanction to prosecute him when the present case was registered and / or cognizance of the offence was taken by the Court.
286. In support of his submissions, two defence witnesses DW-5 and DW-6 were examined by A-5 to highlight and to show that A-5 was subsequently transferred to DDU hospital and thereafter as re employment to Controller, Defence Accounts, Bangalore, after tendering technical resignation on 12.04.2022.
CBI Case No. 194/19 106 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS)
287. I do not agree with the contentions of learned defence counsel.
288. The fact that A-5 was transferred to DDU hospital on 18.07.2001 and thereafter his re-employment in Defence Accounts at Bangalore is not disputed by the prosecution. It is an admitted fact, and is also evident from the Service Records of the accused, copy of which was taken on record vide Ex DW6/1 and Ex DW6/2 collectively.
289. But the fact remains that the offence herein was committed by the accused S. Subramanyam (A-5) during his employment with the RCS office related to the work of Cooperative Societies, and the Sanction accorded by the then 'Registrar' Cooperative Societies, who at that time was competent to remove him from the Services can not be said to be irregular or illegal.
290. PW-44 Mr. U.K. Worah has categorically deposed that he was the competent authority at the relevant point of time to accord Sanction to prosecute accused S.Subramanyam (A-5) in terms of Section 19 of the P.C. Act.
291. He duly proved on record Sanction Order exhibited as Ex PW44/1 (Colly.) by identifying his signatures and testifying to have pass the Sanction order against accused S.Subramanyam (A-5) after due consideration of material placed before him.
292. In the cross-examination also, he re-iterated the fact that he had seen and read the documents, and also the FIR, relating to the present case at the time of granting Sanction.
CBI Case No. 194/19 107 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS)
293. Furthermore, as rightly submitted by the learned PP, clause (2 )of Section 19 P.C. Act sets the matter at rest, wherein in unequivocal terms it is provided that in case any doubt arises as to -
:where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other Authority, such Sanction shall be given by that Government or Authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed."
294. The contentions of the learned defence counsel for A-5 qua illegality or irregularity in the 'Sanction' thereby also stands rejected in that regard.
Now coming to the case of accused R.K. Srivastava A-12
295. The allegations against the accused A-12 are that :
firstly, that he being the Registrar of the Cooperative Societies passed a revival order of defunct Society dishonestly on the basis of false and fabricated documents and without looking into the audit reports ;
secondly, that he further approved the change of the name of the Society from Sheel CGHS to Rose Marry CGHS in connivance with co-accused to defraud the genuine members of CBI Case No. 194/19 108 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) the Society.
296. The proceedings so carried out by the accused R.K. Srivastava (A-12) in his capacity as Registrar, and by other officials of the RCS, are not disputed. The question therefore arises whether the prosecution has been able to prove that the revival order and the change of name of the aforesaid Society were passed by A-12 malafidely in concert with co-accused persons.
297. Undisputably, there is no direct evidence to prove this fact. Ld. PP has referred to the revival order dated 08.09.2000 to state that it was passed in a mechanical manner without checking and verifying the original records, which implies that A-12 was hand in glove with other co-accused persons, and the revival order was passed in furtherance of their conspiracy to give benefit to the accused persons.
298. I have carefully gone through the notings / proceedings of the RCS Office from its noting file including the revival order dated 08.09.2000 passed by accused A-12.
299. It can be seen that vide notings dated 25.08.2000, an application under Section 63(3) DCS Act, 1972 was moved on behalf of the Secretary of the Society before the Office of South District RCS. The application was put up by Sh. Niranjan Singh (PW-30), The Dealing Clerk before AR (South) via his note from point 'A to A' Ex. PW30/A.
300. The application was thereafter sent to the RCS Branch for necessary action in terms of order dated 08.08.2000, vide which the Register Cooperative Societies had issued CBI Case No. 194/19 109 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) directions / circular to put all the revival applications of defunct societies directly to him for consideration and necessary action in that regard ; and thereafter, in terms of proceeding dated 08.09.2000, the Society in question was revived by the Registrar vide a detailed order.
301. It may be noted that in the proceedings so conducted on the aforesaid date Sh. Sohan Lal as the President (A-4), Sh. Sushil Kumar Sharma (A-3) as the Secretary and Sh. Anna Wankhede (A-5) in the capacity as Treasurer had appeared on behalf of the Society before the Registrar and their presence is duly marked in the proceedings so undertaken by the Registrar. The proceeding(s) register and the membership book are also stated to have been produced before the Registrar, Cooperative Societies (A-12).
302. And relevant to note is the fact that all the three persons who had appeared before the RCS are/were duly shown as the member of the Society, and also Elected as President, Secretary and Treasurer of the Society respectively, in terms of the proceedings that took place on 26.01.1988 and in the records so produced before the Registrar at the relevant point of time. There is no dispute to the said fact.
303. This court is conscious of the fact that it is not exercising an appellate jurisdiction over the revival order passed by the Registrar, but to look into the limited aspect of malafide and dishonest intention, if any, on the part of the Register, the order dated 08.09.2000 was also gone through for a purpose in that regard.
CBI Case No. 194/19 110 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS)
304. It is specifically mentioned by the Registrar that due to change in address of the Society, the liquidation order dated 24.08.1990 passed by the then Deputy Registrar, Cooperative Societies appears not to have been received by the Society which was sent to its earlier registered address.
305. The said office bearers of the Society had also produced original UPC Receipt and the letter intimating such change before the Registrar at the time of hearing of 08.09.2000.
306. Learned PP argued that the said UPC receipt and the letter are forged documents and the Registrar should have taken note of the same at the time of passing the order. But admittedly, the forgery of the UPC and the letter was also revealed subsequently on it being examined by the GEQD expert.
307. Nor can on the face of it be said that the records of the society and the UPC Receipt so produced before the Registrar are forged documents.
308. Above all, pertinent to note that the order to revive the Society was a conditional order not an absolute one, wherein the Society was revived subject to the condition that "the President and Secretary of the Society file separate affidavits committing themselves for fulfilling the statutory liabilities in future and order that the record may be examined by the A.R (South) for taking further necessary action about the verification of list etc and for onward transmission to DDA". And, it is clear that the operation of the said order was to come into full effect only after A.R.(South) had examined and verified the records of the Society including the list amongst compliance of other CBI Case No. 194/19 111 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) conditions by the Society.
309. And not to be disputed, the proceedings thereafter were conducted by the A.R (South) and other RCS Officials ; steps were taken to verify the records ; audit of the Society and the factum of resignation of 12 promoter members was also verified. Though a false report was filed by accused S.Subramanyam A-5 qua the verification of 12 Promoter Members, but no fault of the same can be attributed to the RCS ( A-12).
- There is nothing on record to indicate that A-12 had any role to play in the falsity of the said report or that the act so committed by accused S. Subramanyam A-5 was within his knowledge or pursuant to his connivance.
310. Similarly, the application for change of name of the Society was taken and considered by the RCS officials in the routine manner, after it was vetted and approved by various subordinate officials in the normal course of its functioning.
- There is nothing on record to show that there was any deviation in the process in which the application was forwarded, considered and approved by Registrar to impute any malafide intention on his part.
311. Learned PP argued that A-12 had passed similar conditional orders in many cases of other Group Housing Societies handled by him and therefore reading the provision of Section 15 of the Evidence Act, the act of the accused can not be said to be accidental or intentional, and that it was done with a particular knowledge and intention to give benefit to the accused CBI Case No. 194/19 112 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) persons.
312. I do not concur with the submissions of the learned PP so advanced.
313. In terms of Section 15 of evidence Act, the question of relevancy of a fact comes into only when the dispute is whether an act was accidental or intentional or done with particular knowledge or intention. Herein the said question does not arise at all, as admittedly the revival order was passed by the Registrar in terms of his powers conferred under Section 63(3) of DCS Act. Therefore, the question whether it was accidental or done with particular knowledge or intention is of no relevance to the facts of the case.
314. Further, the prosecution has undisputedly failed to produce any thing on record / independent evidence to show that any of the accused persons or any other person had met A-12 at any point of time, prior or even subsequent, to passing of the revival order and/ or change of name of Society in that regard, except in terms of the presence so marked at the time of the proceedings conducted for revival of the Society.
315. Nor is there is anything on record to indicate that any financial advantage was derived by A-12 by the said act. Nor is there any thing on record to show that any preference over others was given to the Society in question by A-12, in terms of the Notification dated 08.08.2000 vide which RCS had ordered to submit all the pending applications for the revival of the defunct societies to himself.
- The said order was an executive order beyond the CBI Case No. 194/19 113 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) competence of this Court to pass any observations.
-And more importantly, nor the identity of the so- called management of the Society who had appeared before the Registrar Cooperative Society is disputed or to say not established.
316. The application of the Revival was supported with copy of relevant documents. Original of the said documents were seen by A-12 at the time of hearing and there is a due endorsement in this regard on the copy of the aforesaid referred documents.
317. Apart from the fact that the order for revival of the society was passed, and that too a conditional one as noted above, there is no overwhelming and glaring fact to show that A- 12 had abused his official position or that the 'revival order' and 'name change' of Society was passed in furtherance of any conspiracy with co-accused persons.
318. Non compliance of some provisions of the DCS Act on behalf of the society and which could have been noticed had he been more vigilant is not itself sufficient to attribute mens-rea under the criminal law. Thereby, drawing an inference of dishonest intention and conspiracy from the stand alone act of accused R.K. Srivastava A-12, in absence of other evidence, would not be a safer proposition in the facts of the present case. I hereby give benefit of doubt to accused R.K. Srivastava (A-12).
319. Though accused A-12 had argued that he was acting in the capacity of a judge and thereby entitled to protection in terms of Section 77 of IPC read with Section 3 of Judges CBI Case No. 194/19 114 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) Protection Act.
320. But in my considered view the act of (A-12) in terms of the powers conferred under Section 63 sub clause (3)of DCS Act are akin to administrative functions or at best Quasi-Judicial. There is no adjudication of any dispute between two parties by way of trial while exercising power under the said provision of the DCS Act. The Registrar was not imparting any judicial function. The act of the Registrar thereby cannot be said to be protected in terms of Section 77 of IPC read with Section 3 of Judges Protection Act.
321. Further more, the said issue already stand decided by the Hon'ble High Court in a Writ Petition No. 2198 of 2005 filed on behalf of one Sh. Narayan Diwakar, who is also accused in number of such cases wherein the Revival Orders in his capacity as Registrar were passed by him in exercising powers under Section 63(3) of the DCS Act.
321.1 The Hon'ble High Court has held that the petitioner therein Sh. Narayan Diwakar was not a 'judge' while exercising his powers u/s Section 63(3) of the DCS Act.
322. The arguments of learned counsel for A-12 cited above are liable to be rejected on that count.
323. Nextly, not to mention that there are number of lacunas and lapses in the investigation so carried out by the Investigating Agency. Number of persons who were part of the management and appears to be involved into the fabrication of the records have been let off without any investigation on those aspects.
CBI Case No. 194/19 115 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS)
324. The IO has not even bothered to examine them during investigation of the case. Some of persons who seems to be directly involved into fabrication of the records have been cited as a witness, and interestingly, they too have not supported the case of the prosecution by resiling from their earlier statement given during investigation.
325. It is settled law that for certain defects and lapses in the investigation, the accused can not be simplicitor acquitted on that very count.
- And, it is only when the defects or the lapses in the investigation goes to the root of the matter / case of the prosecution or prejudices the case of the accused persons, that the accused are entitled to its benefit.
326. And no prejudice is caused or shown to have been caused to the accused persons due to the lapses in the investigation and the conduct of the IO in the present case.
327. Thus summing up, the prosecution has successfully proved the unity of design and comity of actions between the accused persons. The complicity of the accused A-1 to A-10 in fabricating the records of the Society including the resignation and accepting the same to seek land from the DDA at concessional rates is evident thereby.
DECISION:-
328. Having regard to the above discussion and the conclusion arrived at, accused persons namely A-11 Rajesh Shorey and A-12 R.K. Srivastava stands acquitted of all the CBI Case No. 194/19 116 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) charges so framed against them in the present case, and the remaining accused persons are hereby held guilty for the respective offences committed by them as under:-
I. A-1 Sri Chand, A-2 Anna Wankhede, A-3 Sushil Kumar Sharma, and accused A-5 S. Subramanyam stand convicted u/s 120B r/w 420, 468 & 471 IPC and Section 13(2) r/w Section 13(1)(d)of PC Act 1988.
II. Accused A-6 Harjeet Singh, A-7 Rupali Kukreja, A-8 Madhur Bhardwaj, A-9 Pawan Kumar Sharma and A-10 Rakesh Kumar Girotra stand convicted u/s 120B r/w 420, 468 & 471 IPC.
III.Accused A-1 Sri Chand, A-2 Anna Wankhede, A-3 Sushil Kumar Sharma, A-5 S. Subramanyam, A-6 Harjeet Singh, A-7 Rupali Kukreja, A-8 Madhur Bhardwaj, A-9 Pawan Kumar Sharma and A-10 Rakesh Kumar Girotra also stands convicted separately for substantive offences u/s 420, 468 and 471 IPC.
IV.Accused A-5 S. Subramanyam also stand convicted under Section 13(2) r/w Section 13 (1) (d) of PC Act.
329. Accused Rajesh Shorey and R.K.Srivastava are directed to furnish Personal Bond and Surety bond in the sum of Rs. 20,000/- each, in compliance of Section 437-A Cr.P.C during the course of the day.
330. Accordingly, bail bonds furnished by the respective accused persons and are accepted for a period of six months in CBI Case No. 194/19 117 of 118 CBI vs. Sri Chand etc (Rose Marry CGHS) compliance of Section 437 A Cr.P.C.
331. Let the convicted accused persons be heard on the quantum of sentence on 27.02.2023 at 02:00p.m.
Announced in the open court on this 22nd Day of February, 2023.
(ANIL ANTIL)
SPL. JUDGE (PC ACT): CBI-15
ROUSE AVENUE DISTRICT COURT
NEW DELHI/22.02.2023
CBI Case No. 194/19 118 of 118