Delhi District Court
Cbi vs . 1. S P Saxena S/O Late Sh. R B Saxena on 7 May, 2012
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 116/11
RC No.18E/2005/CBI/EOW1/New Delhi
(Anjuman CGHS)
CBI Vs. 1. S P Saxena S/o Late Sh. R B Saxena
2. Ashok Goswami S/o Sh L P Goswami
3. Rajesh Aggarwal S/o Sh. Amrit Lal Aggarwal
4. Mukesh Arora S/o Late Sh. R K Arora
5. Praveen Kumar Jain S/o Late Sh. N K Jain
6. Niranjan Singh S/o Late Sh. Babu Lal
7. B M Sethi S/o Late Hira Lal Sethi (expired)
8. Krishan Kumar S/o Late Sh. Amar Singh
9. Narayan Diwakar S/o Late Sh. C Ram
10. Kuldeep Singh S/o Shri Surain Singh
11. Ashwani Sharma S/o Late Sh. P K Sharma
O R D E R O N C H A R G E:
1.The case of the CBI, in brief, is that Anjuman Cooperative Group Housing Society (in short 'CGHS') was registered with the Registrar Cooperative Societies ( in short 'RCS), Delhi in December 1983 vide registration No. 1022 (GH). Initially it had 90 members, who were employees of Bharat Electronics Ltd., Ghaziabad and its freeze strength was later on fixed at 120. In 1990, society expelled 29 members on account of nonpayment of the funds and CBI Vs. S P Saxena & Ors. Page 1/19 (Anjuman CGHS) some other members of the society also decided to quit the society as there was likelihood of land being allotted very far from their place of working.
2. It is alleged that accused Ashok Goswami took over the control of Anjuman CGHS on payment of Rs.5100/ in cash to each original member who had agreed to quit their membership in lieu of their undated resignation letters. It is also alleged that accused S P Saxena and accused Ashok Goswami fraudulently obtained land from DDA at subsidized rates in the year 1999 on the strength of list of original members submitted to RCS office, forged/got forged resignation letters in respect of 29 members expelled from Anjuman CGHS and enrolled new members in the society in their place and in the year 2001 they got the list of resigned/enrolled members of Anjuman CGHS approved by RCS office on the basis of forged documents. Initially, chargesheet dated 28.3.2006 was filed only against accused S P Saxena and Ashok Goswami. Later on supplementary chargesheet dated 25.9.2009 was filed in the court against eleven accused persons including accused S P Saxena and Ashok Goswami.
3. Investigation further revealed that the records of the society were handed over to accused Ashok Goswami at the office of accused S P Saxena at C34, Madhu Vihar, Delhi by the office bearers CBI Vs. S P Saxena & Ors. Page 2/19 (Anjuman CGHS) of the society. However, no acknowledgment was obtained by them in this connection.
4. Investigation further revealed that in the audit report 199394 to 199798 done through Victor Raj M.J, no office bearer of the previous management of Anjuman CGHS was present before him at the time of audit and audit reports duly signed by the office bearers of the previous Management Committee were placed before him. The said audit report for the year 199798 bear the signature of accused S P Saxena as President and accused Ashok Goswami as Secretary and the names of 29 expelled members were also included.
5. Investigation further revealed that during May, 1998 to April, 1999 a number of proceedings were recorded in the Proceedings Register but the same do not bear any signature of any of the office bearer/member of the society which goes to show that the same had been subsequently manipulated.
6. Investigation further revealed that Anjuman CGHS was allotted land at Dwarka admeasuring 7000 sq. meters @4063/ by DDA vide letter dated 3.5.2000. This rate was subsequently reduced by an order of the Court to Rs.3533/ per sq. meter.
7. Investigation further revealed that accused Praveen Kumar Jain, Auditor submitted his audit report for the year 199899 wherein he showed total strength of the society as 63 and no member CBI Vs. S P Saxena & Ors. Page 3/19 (Anjuman CGHS) was shown as resigned/enrolled. This audit report also contained the names of 29 members allegedly expelled during 1992. However, as per the audit report for the year 19992000, 36 members were shown to have resigned and expelled out of 63 persons and, thus, the society was left with the strength of 27 members. At the same time, 64 new members had shown as enrolled and the total strength of 120 members were shown instead of 91 members and, thus, there was a discrepancy of 29 members in the said report.
8. Investigation revealed that accused S P Saxena submitted a fake resignation and refund receipt in respect of member no. 56 in the year 2000 whereas said member had already expired in the year 1995. Further 17 original members including some of the expelled members denied their signatures on the resignations.
9. Investigation further revealed that accused Niranjan Singh had put up a note dated 14.5.2001 regarding approval of the resignation of 125 members and enrollment of 119 new members in the society. It has been stated that out of 125 members shown to have resigned, only 34 promoter members had resigned from the membership of the society in due course of time whereas the remaining 91 original members has been shown to have been resigned within a period of 10 months from 1.1.2001 to 25.10.2000. However, this fact was not highlighted by accused Niranjan Singh in his note. CBI Vs. S P Saxena & Ors. Page 4/19
(Anjuman CGHS) He also did not point out that the Audit Report for the year 199899 contained the names of 29 members who had been expelled in the year 1992. Thus, accused intentionally suppressed material facts. Accused Krishan Kumar, the then JR (NW) raised a query regarding physical verification of resigned members in mass. However, accused Niranjan Singh gave clarification that these resignations had taken place during a span of 9 years and as per records, the resigned members had been refunded their dues. On this clarification, accused Krishan Kumar signed the file and it was finally approved by accused Narayan Diwakar, the then RCS on 25.6.2001. However, they could check or verify the records of the society wherein the details of the 29 of original members of Anjuman CGHS were very much available. Accused Narayan Diwakar, the then RCS, failed to issue any directions for the proper/physical verification of the resigned/enrolled members.
10. Accused Rajesh Aggarwal who had been enrolled as a member of the society vide proceedings dated 5.12.1999 had participated in Management Committee Meeting held on 10.3.2000 as a Member of the Management Committee. As per the DCS rules, no member could become the member of Managing Committee within one year of his enrollment. He also participated in the various proceedings and he was also a member of 'Bhai Bano CGHS Ltd.' at CBI Vs. S P Saxena & Ors. Page 5/19 (Anjuman CGHS) the relevant point of time in violation of DCS Act and Rules, 1973.
11. Investigation further revealed that accused Mukesh Arora who has been shown elected Treasurer of the Society w.e.f 3.3.2001 had in fact signed Audit Reports of the society as Treasurer in the year 1999. Accused Mukesh Arora was also instrumental in the enrolment of new members to the society. Accused Kuldeep Singh has forged the signatures of Smt Maninder Kaur on the resignation letter.
12. Investigation further revealed that accused Ashwani Sharma had written all the proceedings of the Managing Committee held during 19992001. Accused B M Sethi, the then Deputy Registrar, had abused his official position as public servant and in pursuance of the conspiracy with accused S P Saxena and Ashok Goswami. Accused Kuldeep Singh, an employee of Bharat Electronics Ltd., Ghaziabad was one of the promoter members of Anjuman CGHS and was instrumental in the enrollment of his relatives. Accused Kuldeep Singh has forged the signatures of Smt Maninder Kaur and Surjit Singh Sethi. After completing investigation, charge sheet was filed in the Court against the accused persons for committing various offences under Indian Penal Code, 1860 (in short 'IPC') and Prevention of Corruption Act, 1988 (in short 'PC' Act).
13. After the chargesheet was filed in court, accused B M Sethi expired and, thus, case against him stood abated. CBI Vs. S P Saxena & Ors. Page 6/19
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14. I have heard Ld. PP for CBI; Sh. Bhawani Shankar Sharma, Ld. Counsel for accused Kuldeep Singh; Sh. R.P. Shukla, Ld. Counsel for accused Krishan Kumar and Sh. Harsh Khanna, Ld. Counsel for accused Mukesh Arora and Ashwani Sharma. I have also gone through the written submissions filed on behalf of accused Kuldeep Singh, Praveen Kumar Jain, Ashok Goswami, Narayan Diwakar, Mukesh Arora and Ashwani Sharma, Rajesh Aggarwal and S P Saxena.
15. Sh. Bhawani Shankar Sharma, Ld. Counsel for accused Kuldeep Singh (A10) contended that from the perusal of chargesheet as well as statement of witnesses and documents appended with the chargesheet, there is no sufficient material to frame charge against accused Kuldeep Singh. There is no allegation that accused induced anybody or he deceived anybody to deliver any property to him. No wrongful loss was caused to anybody. In chargesheet only paragraphs 21 and 30 contain allegations against accused Kuldeep Singh. PWs Maninder Kaur and Surjeet Singh Sethi have not alleged anything against accused Kuldeep Singh though in the chargesheet it is mentioned that accused Kuldeep Singh was instrumental in enrollment of said two witnesses. Mere averments in paras 21 and 30 are not sufficient to frame charge against the accused. It is further contended that in Writ Petition (Civil) No. 1064/2007 titled as CBI Vs. S P Saxena & Ors. Page 7/19 (Anjuman CGHS) Anjuman CGHS Vs. RCS, High Court of Delhi vide its order dated 29.08.2008 has already turned down the claims of the alleged objectors and as such there is no sufficient ground for proceedings against accused Kuldeep Singh. In support of his contentions Ld. Counsel has relied upon judgments Bheem Singh Vs. State, 48 (1992) DLT 402, Pradeep Kumar Vs. State, 1994 Rajdhani Law Reporter, 117 and Rajinder Kumar Vs. State, 1995 JCC 546.
16. Sh. R P Shukla, Ld. Counsel for accused Krishan Kumar contended that no prima facie case is made out against the accused persons in view of judgment Anjuman CGHS (supra) passed by the High Court of Delhi. According to him, this court cannot go against the observations made by the High Court in judgment Anjuman CGHS (supra) wherein the objections of PWs 6, 10, 13, 14, 15, 26, 27, 28 and 49 were not considered by the High Court and the High Court has given a finding that their objections were groundless and baseless. Ld. Counsel further contended that the first chargesheet was filed in the court of Ld. ACMM against two accused persons only while supplementary chargesheet was filed against 11 accused including the public servants. In the supplementary chargesheet, it has not been revealed as to on what material other accused have been made accused in this case. According to Ld. Counsel there was no cancellation of land and as such it is not a case of wrongful of the society. No one was CBI Vs. S P Saxena & Ors. Page 8/19 (Anjuman CGHS) defrauded and, therefore, accused Krishan Kumar is liable to be discharged.
17. Accused Ashok Goswami (A2) has submitted that there is no material to show that A2 was a member of criminal conspiracy either by act or by circumstances. A2 has not forged any document and, thus, ingredients of Sections 420/467/468/471 IPC are not attracted against him. There is no wrongful gain to A2 as he simply got the flat allotted to him with other members of the society. He has also placed reliance upon judgment Anjuman CGHS (supra).
18. Accused Rajesh Aggarwal (A3) has submitted that from the perusal of paragraphs No. 19, 23 and 24 of the chargesheet, it is clear that no offence is made out against A3 under Sections 120B/420/467/468/471 IPC. The investigation was conducted by a person not authorised under Section 17 of the PC Act. It is further submitted that as per CBI, resignations of 29 members were accepted in the meeting which was allegedly conducted by A3. However, out of the said 29 members, the statements of only six members i.e PW13, PW21, PW25, PW46, PW50 and PW69 were recorded. These PWs have not alleged anything against A3 and they have accepted their signatures on their respective resignation letters and have also acknowledged the refund of deposited amount. The objections filed by the members whose signatures were allegedly CBI Vs. S P Saxena & Ors. Page 9/19 (Anjuman CGHS) forged were dismissed by the High Court in its judgment dated 29.8.2008 in Anjuman CGHS (supra). In support of his contentions A3 has relied upon judgment A P Narang Vs. CBI, Criminal Revision Petition No. 397/2010 decided on 17.1.2011 by Delhi High Court and judgment Anjuman CGHS (supra).
19. Accused S P Saxena (A1) has submitted that the judgment Anjuman CGHS (supra) was challenged in the Supreme Court by way of SLP by A1 and the Apex Court has confirmed the order except modifying para no. 5 that the right of accused persons for getting allotment of flat cannot be denied. The report regarding 29 members scrutinized by Sh. S M Chopra, Retired ADJ/Amicus Curiae appointed by the High Court is final in all respects as the Apex Court has confirmed the order passed by the High Court. It is further submitted that no loss was caused to anybody and as such ingredients of Section 420 IPC are not attracted. In support of his contentions A1 relied upon the comments of amicus curiae on 44 objections, order dated 5.12.2008 passed by the Apex Court in CC 15738/2008 titled as S P Saxena Vs. RCS and order dated 31.3.2009 passed by the Apex Court in SLP (C) No. 30103/2008. According to accused S P Saxena, the proceedings before this court be stayed till the matter is finally decided by the Apex Court.
20. Accused Praveen Kumar Jain (A5) submitted that he is a CBI Vs. S P Saxena & Ors. Page 10/19 (Anjuman CGHS) Chartered Accountant by profession and was on the panel of chartered accountants to conduct audit of societies registered with the office of RCS. The job of A5 was limited to conduct audit of the balance sheet/financial statements as provided by the management of the societies. With respect to the resignation and enrollment of the members of the society, the power has been in the hand of RCS and A5 has nothing to do with the same. A5 has been made an accused in the supplementary chargesheet with the allegation that proper list of members was not shown. According to A5, there is nothing on record to frame charge against him.
21. Accused Mukesh Arora (A4) and Ashwani Sharma (A11) submitted that in the present case investigation was conducted by SI Anupam Mathur, CBI, ACB, New Delhi and the chargesheet was filed. SubInspector was not at all empowered and authorised to investigate the matter and any permission obtained subsequently does not authorise the IO to investigate the case. There is no complainant and as such there is violation of Section 154 Cr.PC. Ingredients of Section 120B/420/468/471 IPC are not attracted against A4 and A11. In support of his contentions Ld. Counsel has relied upon orders/judgments of Hon'ble High Court of Delhi in cases WP (C) Nos. 1786/2011, 2426/2011, 2441/2011 dated 23.5.2011; judgment A P Narang (supra); Rakash Kumar Vs. State, 2004 (1) JCC 110, Rajeev CBI Vs. S P Saxena & Ors. Page 11/19 (Anjuman CGHS) Mukhopadhyay Vs. Registrar Cooperative Societies 141 (2008) DLT 321 DB, Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra (2009) (1) SCC (Crl. ) 51, Greater Bombay Coop. Bank Ltd. Vs. United Yard Tex (P) Ltd., (2007) 6 SCC 236 and Mayurdhwaj CGHS Ltd. Vs. President Officer Delhi Coop. Tribunal, AIR 1998 SC 2410.
22. 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 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 and other accused have pointed out following illegalities:
(a) Consent of the State was not taken as required U/s 6 of the Delhi Special Police Establishment Act (in short '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.CBI Vs. S P Saxena & Ors. Page 12/19
(Anjuman CGHS)
23. The contention 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.
24. 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 which are to be investigated by DSPE. 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 charge CBI Vs. S P Saxena & Ors. Page 13/19 (Anjuman CGHS) sheet are all notified offences U/s 3 of the DSPE Act and, therefore, no fresh notification is/was necessary.
25. All the accused have raised the contention that the DCS Act, is a complete self contained statute and, therefore, provisions of the IPC cannot be invoked. The DCS Act, 1972 provides for a well defined system of addressing the issues relating to various private co operative 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 to have been committed by the accused is punishable under the provisions of Special law and, therefore, the provisions of IPC, being general law, cannot be invoked. In respect of this contention, accused have relied upon judgmentGreater Bombay Coop. Bank Ltd (supra).
26. 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. CBI Vs. S P Saxena & Ors. Page 14/19
(Anjuman CGHS)
27. 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 accused persons have been charge sheeted. Thus, DCS Act does not impose any bar to take resort to the provisions of General Criminal Laws.
28. 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. The RCS officials followed the procedure with a view to give colour to their 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.
29. 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 CBI Vs. S P Saxena & Ors. Page 15/19 (Anjuman CGHS) 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 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.
30. 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. In CBI Vs. S P Saxena & Ors. Page 16/19 (Anjuman CGHS) the present case, SubInspector was authorised to investigate the matter and in such circumstances it cannot be said that he was not empowered to investigate the matter.
31. All the accused have placed reliance upon the judgment Anjuman CGHS (supra) to show that the credibility of PWs 6, 10, 13, 14, 15, 26, 27, 28 and 49 is doubtful. Their objections were considered by the High Court and all their objections were disallowed. In such circumstances it is contended that the statements of said PWs cannot be read in the present case.
32. I have gone through the judgment Anjuman CGHS (supra). It was a civil writ petition filed by Anjuman CGHS in the High Cout of Delhi seeking a direction to DDA to issue the completion certificate and grant provisional occupancy certificate (POC) to the society. A writ of Mandamus was also sought directing the RCS and DDA to hold a draw of lots for allotment of flats to the members of the society. It was in that context the objections of the objectors were considered and directions were issued so that the newly enrolled members who were not responsible in the cooperative scams may not be deprived of the fruits of their investment. There are allegations of conspiracy, forgery and cheating against the accused persons and that aspect was not taken into consideration by the High Court of Delhi while deciding the said writ petition. Forged documents CBI Vs. S P Saxena & Ors. Page 17/19 (Anjuman CGHS) were submitted in the office of RCS and DDA for the allotment of land and on the strength of those documents land was alloted by the DDA. The credibility of the members who either resigned or were expelled will be considered during the trial of the case and their statements cannot be brushed aside at this stage as prima facie there is evidence that forged documents were used by the accused for getting land from the DDA. The contention of accused S P Saxena that proceeding in this case be stayed in view of the Apex Court's decision placed on record is devoid of merit. The proceedings were stayed by the Apex Court in that particular case in the facts and circumstances of said case.
33. 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 Offices of RCS and DDA.
34. In view of the above discussion, I am of the opinion that primafacie case is made out against accused S P Saxena, Ashok Goswami, Rajesh Aggarwal, Mukesh Arora, Praveen Kumar Jain, Niranjan Singh, Krishan Kumar, Narayan Diwakar, Kuldeep Singh and Ashwani Sharma for committing offences U/s 120B IPC r/w Ss. 420/467/468/471 IPC and u/S. 13 (2) r/w S. 13 (1) (d) of the P.C. Act, 1988 and substantive offences thereof against accused persons, CBI Vs. S P Saxena & Ors. Page 18/19 (Anjuman CGHS) namely, S P Saxena, Ashok Goswami, Rajesh Aggarwal, Mukesh Arora, Praveen Kumar Jain, Niranjan Singh, Krishan Kumar, Narayan Diwakar, Kuldeep Singh and Ashwani Sharma.
Announced in the open court (PRAVEEN KUMAR)
on dated 07.05.2012. Special Judge, PC Act
CBIIII, Rohini Courts,Delhi.
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