Delhi District Court
Cbi vs . Narender Kumar & Others. on 28 November, 2011
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 91/11
RC No. 20(E)/2005/CBI/EOUII/N. Delhi.
CBI Vs. Narender Kumar & others.
(CWC CGHS)
O R D E R O N C H A R G E:
1.The case of the CBI, in brief, is that Central Warehousing Corporation Cooperative Group Housing Society (CGHS) was registered with the Registrar of Cooperative Societies (RCS), Delhi on 31.03.1973 vide registration no. 156 (H) with 88 promoter members having its registered office at C90, NDSE PartII, New Delhi. Since the society had stopped functioning and it was lying dormant, it was ordered to be wound up by Sh. R.L. Khanna, the then JR, vide order dated 30.11.76.
2. After a hiatus of 27 years, accused Ashwani Sharma while impersonating as accused Narender Kumar submitted an application dated 25.04.2003 requesting the AR, RCS, for revival of the society and approval of freeze list of members. The said application was received by accused Ramesh Chandra, AR (EAST). In that application, the registered as well as CBI Vs. Narender Kumar & others (CWC CGHS) Page 1/15 correspondence address of the society was reflected as 190, Sharda Niketan, Pitampura, Delhi. Accused Ramesh Chandra deliberately and maliciously dealt with the matter relating to society in East Zone despite the fact that neither earlier address nor the subsequent address fell under the jurisdiction of East Zone. Accused Rakesh Kumar Hasija, the Dealing Assistant, processed aforesaid application for revival of society vide note dated 21.8.2003. Accused Ramesh Chandra endorsed the said note and recommended for appointment of accused Sushil Kumar Sharma, Gr. IV, as an inspecting officer to conduct inspection of the society which was approved by accused Narayan Diwakar, RCS, on 17.03.2003. On 3.10.2003, accused Sushil Kumar submitted inspection report wherein he stated that he had visited office of society and met Mohinder Kumar, Secretary of the society who produced relevant records for inspection. He further added that there were 90 members of the society out of which 49 members had resigned and 51 new members were inducted. He also stated in his report that General body meeting of the society was held on 23.02.2003. However, investigation reveals that registered address of the society visited by accused Sushil Kumar Sharma was residential address of accused Narender Kumar, the President, where society never existed. The fact of holding GBM on 23.2.2003 CBI Vs. Narender Kumar & others (CWC CGHS) Page 2/15 was proved to be false since Sh. Dev Mehta, the Chairman and Prem Prakash, the Vice President have denied to have attended such meeting. The Computer Forensic Scientist of GEQD, Shimla has proved that inspection report was prepared by accused Ashwani Sharma on his computer.
3. The report submitted by accused Sushil Kumar was put up by Ms. Pratibha Sharma on oral instructions of accused Ramesh Chandra. She put up a note duly endorsed by accused Ramesh Chandra before accused Narayan Diwakar, the RCS, on 30.10.2003 requesting for revival of the society and approval of its freeze list. The matter was heard by accused Narayan Diwakar on 18.11.2003 when accused Narender Kumar, the President of the society, was present. He directed his reader, accused N.S. Khatri, to send the file to concerned zone for verification of membership as well as to ascertain the audit/election position and adjourned the matter to 4.10.2003.
4. Accused Ramesh Chandra directed Ms. Pratibha to put up the relevant records for verification. Accused Rakesh Kumar Hasija recorded a nine page typed note and submitted the same on 3.12.2003 to accused Ramesh Chandra, the then AR, wherein he observed that in addition to 88 promoter members, 51 members had been enrolled prior to 30.06.1986 while 49 members had resigned prior to 30.06.1986 thereby bringing present strength CBI Vs. Narender Kumar & others (CWC CGHS) Page 3/15 of the society to 90. Accused Rakesh Kumar Hasija further pointed out that the President/Secretary of the society have produced the records for verification and it were verified. However, investigation reveals that note, running into 9 pages, was actually drafted and prepared by accused Ashwani Sharma in his own computer and he gave it to accused Rakesh Kumar Hasija who printed the note, filled in page numbers in the blank spaces left in the typed note in his own hand and submitted to accused Ramesh Chandra. The computer Forensic Scientist of GEQD, Shimla has confirmed that said note was prepared by accused Ashwani Sharma which was identical to the note submitted by accused Rakesh Kumar Hasija to accused Ramesh Chandra.
5. Accused Ramesh Chandra recommended for revival of the society and also approval of freeze list of 90 members. Accused Narayan Diwakar recorded note dated 4.12.2003 wherein the presence of S.P. Mehta, Advocate, representing the society was marked. However, investigation establishes that S.P. Mehta, Advocate, never appeared before RCS and represented the society. Further, accused Narayan Diwakar falsely and incorrectly recorded that Dy. Registrar who had passed liquidation order was not competent to decide the matter whereas Sh. R.L. Khanna, the JR, while exercising powers of CBI Vs. Narender Kumar & others (CWC CGHS) Page 4/15 RCS had passed the said order. He further incorrectly recorded that society was given ample opportunities either to reply to show cause notice or rectify shortcomings mentioned in the notice whereas the society was defunct and did not function at all. He also falsely mentioned that management committee of the society has been continuously managing its affairs and its members were instrumental in revival while the society was dormant after its registration in 1973.
6. On 8.12.2003, accused Narayan Diwakar passed order of revival and approved freeze list of 90 members. He appointed accused Narender Singh Khatri as election officer to conduct elections of the management committee. Accused N.S. Khatri submitted a false and bogus report to this effect mentioning names of President, Vice President and five MC members out of which accused Narender Kumar, the President, Mohinder Kumar, the Secretary, accused Smt. Asha Rani, the Treasurer, happen to be uncle, fatherinlaw and mother respectively of accused Raman Kumar Marwah. Sh. Prem Prakash, the Vice President and Upakar, the MC member have denied to have attended election proceedings and also denied their signatures on proceeding register.
7. Investigation further reveals that accused Raman Kumar Marwah had purchased records of society from one accused CBI Vs. Narender Kumar & others (CWC CGHS) Page 5/15 M.P.Sharma, the exRCS official, on the strength of a handing over/taking over memo of records prepared by accused Raman Kumar Marwah and Ashwani Vij signed the same as a witness. Accused Ashwani Sharma and accused Raman Kumar Marwah forged and fabricated records of society and submitted these documents to RCS for revival. Accused Ramesh Chandra forwarded freeze list of society on 10.12.2003 for onward transmission to DDA which was shown to be signed by accused Narender Kumar, the President, Prem Prakash, the Vice President and Mohinder Kumar, the Secretary and also by accused Ramesh Chandra. However, accused Narender Kumar, Prem Prakash and Mohinder Kumar have denied to have signed the freeze list.
8. After revival of the society, its records were audited by P.K. Thirwani, the Auditor, who submitted a false report to this effect. He prepared false balance sheets and yearly statements of accounts on the basis of false/forged documents. Thus, accused Narayan Diwakar, accused N.S. Khatri and other RCS officials in connivance with others revived the society in question and approved its freeze list with a view to cheat DDA in allotting land to the society. After the completion of investigation, chargesheet was filed in the court against all the accused persons under the provisions of Indian Penal Code, 1860 (IPC) CBI Vs. Narender Kumar & others (CWC CGHS) Page 6/15 and Prevention of Corruption Act, 1988 (P.C. Act).
9. I have heard Sh. A.P. Singh, Ld. PP for CBI;
Dr. Sushil Kumar, Ld. Counsel for accused Narender Kumar (A1), accused Raman Kumar (A2) and accused Asha Rani (A7);
Sh. R.P. Shukla, Ld. Counsel for accused Narender Singh Khatri (A3);
Sh. S.K. Bhatnagar, Ld. Cosunsel for accused Mahavir Prasad Sharma (A10) and;
Sh. Vaibhav, Ld. Counsel for accused Ashwani Sharma (A8). I have also gone through the written submissions filed on behalf of accused Ramesh Chandra (A4), accused Narayan Diwakar (A5) and accused Ashwani Sharma (A8).
10.Ld. Counsel for accused Narender Kumar (A1), accused Raman Kumar (A2) and accused Asha Rani (A7) contended that ingredients of Section 13(1) (d) of P.C Act are not attracted to the present case. There is neither oral nor documentary evidence against accused nos. 1, 2 & 7. According to Ld. Counsel as provisions of Sec. 13(1)(d) of P.C Act are not attracted, this court has no jurisdiction to try and entertain the present case and the same is liable to be transferred to the court of Ld. M.M for the offences triable by him. Ld. Counsel further contended that from the statement of witnesses it is clear that no CBI Vs. Narender Kumar & others (CWC CGHS) Page 7/15 offence of forgery was committed. Accused Asha Rani (A7) was a treasurer of the society. Just because her signatures were there on the proceedings of the society, no charge can be framed against her in the absence of an overt act on her part.
11.Ld. Counsel for accused Ashwani Sharma (A8) contended that no complaint was lodged by any previous member of the society and no case under various provisions of IPC and P.C Act could have been registered as DCS Act is a Special Act which will prevail over the general law. In support of his contentions he has relied upon the order dated 23.5.2011 in WP (C) No. 1786/2011, order dated 23.5.11 in WP (C) No. 2426/2011, order dated 23.5.2011 in WP (C) No. 2441/2011 & CM No. 5219/2011 and judgment A P Narang Vs. CBI, Crl.Rev. P No. 397/2010 dated 17.1.2011 all passed by High Court of Delhi.
12. According to accused Narayan Diwakar, he has done nothing wrong while discharging his functions as RCS. RCS does not deal with land as the same is the subject matter of DDA who allots the land in accordance with the Rules framed under DDA Act, 1957 and Disposal of Development Nazul Land Rules, 1981. CBI has committed various illegalities while investigating the matter. He placed reliance upon the judgment titled as Dr. R.R. Kishore v. CBI, 2006 VIII AD (Delhi) 545; wherein it was held that if illegal investigation is brought to the CBI Vs. Narender Kumar & others (CWC CGHS) Page 8/15 notice of the Trial Court at the initial stage, then the court ought not to proceed with the trial but should direct reinvestigation in order to cure the defect in the investigation. Accused Narayan Diwakar has pointed out following illegalities:
(a) Consent of the State was not taken as required U/s 6 of the DSPE Act, 1946.
(b) Absence of notification U/s 3 of DSPE Act.
(c) Registration of case under various provisions of IPC instead of DCS Act which is a Special Act.
13. The contention of accused Narayan Diwakar that the consent of State was not taken is misconceived in the facts and circumstances of the present case. The investigation was referred to CBI in the present matter by the High Court. Once the order for investigation of a case to CBI is passed by the High Court under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a matter for investigation to CBI. Though not referred to and relied upon, for taking view I am supported with the order dated 17.9.2007 passed by Hon'ble Mr. Justice Sh. S.N. Dhingra in Criminal MC No. 2784 of 2007.
14. It is contended that the noncompliance of Sec.3 of DSPE Act, 1946 vitiates the entire investigation. As per Sec. 3 of DSPE Act, 1946, the Central Government makes notification in the official gazette to specify the offences or classes of offences CBI Vs. Narender Kumar & others (CWC CGHS) Page 9/15 which are to be investigated by Delhi Special Police Establishment. It is contended that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government u/s 3 of the Act and such offences as notified are mentioned in DSPE Act, 1946. The offences covered by Sec. 3 of the said Act do not include the offences under the Cooperative laws. Thus, the investigation done by the CBI for the cooperative societies is in violation of Sec.3 as it has no jurisdiction to conduct the investigation. In my opinion the Offences mentioned in the chargesheet are all notified offences U/s 3 of the DSPE Act and, therefore, no fresh notification is/was necessary.
15. All the accused have raised the contention that the DCS Act is a complete self contained statute and, therefore, provisions of the Indian Penal Code cannot be invoked. The DCS Act, 1972 provides for a well defined system of addressing the issues relating to various private cooperative societies and it contains the provisions of fine, appeal, punishment and, as such, the application of provisions of the IPC by the CBI is wholly illegal. It is further contended that the matter is covered under the provision of Section 82(3) of DCS Act which completely debars the prosecution without giving the opportunity of being heard as well as previous sanction of RCS. The offence alleged CBI Vs. Narender Kumar & others (CWC CGHS) Page 10/15 to have been committed by the accused is punishable under the provisions of Special law and, therefore, the provisions of Indian penal Code, being general law, cannot be invoked. In respect of this contention, accused have relied upon judgments State of Maharashtra Vs. Laljit Rajshi Shah & Ors. AIR 2000 SC 937; and Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd. & Ors. 2007(5) SCALE 366.
16. On the other hand, it is contended by Ld. PP for CBI that provisions under DCS Act and DCS Rules are for administration of Cooperative Group Housing Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. According to him, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law.
17. I have gone through the judgments cited by the accused.
The cited judgments are not applicable to the facts of the present case. Wherever the Legislature in its wisdom deemed fit, they have restricted/prohibited the applicability of other Acts which could be seen from the provision of section 91 of DCS Act, 1972 which provides "The provisions of the Companies Act, 1956 shall not apply to Cooperative Societies Act". But such restriction/prohibition is nowhere mentioned in DCS Act, 1972 debarring the applicability of IPC or PC Act under which the CBI Vs. Narender Kumar & others (CWC CGHS) Page 11/15 accused persons have been chargesheeted. Thus, DCS Act does not impose any bar to take resort to the provisions of General Criminal Laws.
18. According to accused Narayan Diwakar, he was discharging his quasi judicial functions and as such he cannot be prosecuted. According to him, under the provisions of Section 40 & 41 of the DCS Act, there is a presumption of genuineness of the documents filed in support of the application. In my opinion, the facts and circumstances of the present case prima facie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. Bogus documents were used. Accused Narayan Diwakar followed the procedure with a view to give colour to his acts. Following procedure prescribed under the Act would not validate his acts when they were actuated with conspiracy to cheat the RCS and office of DDA.
19. From the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons of having entered into a criminal conspiracy to cheat the office of RCS and DDA.
20. It has been further contended on behalf of the accused persons that no land was allotted to the society and under these circumstances it can not be said that DDA was cheated. Narayan Diwakar and his subordinate staff/coaccused were bound to CBI Vs. Narender Kumar & others (CWC CGHS) Page 12/15 protect the interest of office of RCS. They in furtherance of the conspiracy entered into between them, cheated the institution of office of Registrar Cooperative Societies by doing act of revival of the society and they forwarded the letter to DDA for allotment of land. Therefore, primafacie case of cheating is also made out against the accused persons.
21. Further, it is contended that there is no complainant in this case and, thus, the registration of FIR in the present case does not satisfy the ingredients of Section 154 Cr.PC. The contention is devoid of any merit. Our High Court of Delhi while hearing the Civil Writ Petition No. 10066/2004 passed order dated 2.8.05 directing the CBI to conduct the thorough investigation in the matter relating to 135 CGHS. In pursuance of the aforesaid order passed by the Delhi High Court in exercise of its inherent powers, an inquiry was conducted by CBI which disclosed commission of cognizable offence by the accused persons in the matter of dishonest and fraudulent revival of society. Therefore, CBI rightly lodged the FIR in the present case. While registering the FIR, the acts and omissions on the part of the accused persons and disclosure of commission of cognizable offences by them were detailed in the FIR. The FIR registered by CBI fully satisfies the ingredients of Section 154 Cr.PC. It is the settled law that once an investigation is directed CBI Vs. Narender Kumar & others (CWC CGHS) Page 13/15 into alleged offences by the Court, two conditions are necessary to commence the investigation:
(i) The police should have reason to suspect the commission of cognizable offence and;
(ii) A Police Officer should subjectively satisfy himself to the existence of sufficient grounds to enter into investigation.
These two conditions were duly satisfied at the stage of lodging of FIR in the present case by the CBI before entering into investigation. Thus, the present FIR was rightly registered by the CBI and just because the FIR was not lodged on a complaint received from a complainant/individual is not a ground to discharge the accused. I have gone through the orders/judgment cited by the accused Ashwani Sharma. However, they are not applicable to the facts of the present case.
22. From the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons of having entered into a criminal conspiracy to cheat the Office of RCS and DDA.
23. In view of the above discussion, I am of the opinion that:
(i) Primafacie case is made out against accused Narender Kumar (A1), Raman Kumar Marwah (A2), N.S. Khatri (A3), Ramesh Chandra (A4), Narayan Diwakar (A5), Rakesh Kumar Haseja (A6), Asha Rani (A7), Ashwani Sharma (A8), Sushil CBI Vs. Narender Kumar & others (CWC CGHS) Page 14/15 Kumar Sharma (A9) and M.P. Sharma (A10) for committing offences U/s 120B IPC r/w U/s 419/420/468/471 IPC and u/S. 13 (2) r/w S. 13 (1) (d) of PC Act, 1988.
(ii) Primafacie case is made out against accused Narender Kumar (A1) and accused Raman Kumar Marwah (A2) u/Ss. 420/511, 468/471 IPC;
(iii) Primafacie case is made out against accused Raman Kumar Marwah (A2) u/S 419 IPC;
(iv) Primafacie case is made out against accused N.S Khatri (A3), Ramesh Chandra (A4), Narayan Diwakar (A5), Rakesh Kumar Haseja (A6) and Sushil Kumar Sharma (A9) u/S 15 r/w Sec. 13 (1) (d) of PC Act, 1988 and
(v) Primafacie case is made out against accused Ashwani Sharma (A8) u/Ss. 468/471 IPC.
Announced today in open (PRAVEEN KUMAR) court on 28.11.2011. Special Judge, PC Act, CBI3, Rohini Court, Delhi.
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