Delhi District Court
Cbi vs Narayan Diwakar Etc. ( Imamia Cghs) on 28 March, 2024
CBI vs. Narain Diwaker etc (Imamia 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 No. : 191/2019
CNR No. : DLCT 11-000804-2019
RC No. : 1(A)/2006/ACU-VIII/CBI/N.DELHI
U/Sec. : Section 120-B r/w 406/420/467/468/471
IPC and Section 13(2)r/w 13(1)(d) of P.C
Act, 1988 and substantive offences thereof
CENTRAL BUREAU OF INVESTIGATION
VERSUS
1. Narain Diwakar
S/o Late Sh. Chatthi Lal
R/o G-30, Masjid Moth,
New Delhi ....................................... (A-1)
2. Ramesh Chandra
s/o Late Sh. Ajyan Ram,
R/o CD-52F-DDA Flats,
Hari Nagar, New Delhi................................... (A-2)
*(Expired & proceedings against him stands
abated )
3. N. S. Khatri,
Sh. Lal Singh Khatri,
R/o 89-B, Shakti Khand-I
Indira Puram,
Ghaziabad (U.P) ........................................ (A-3)
4. Narender Kumar
S/o Late Sh. Ram Charan,
R/o C-74, Timar Pur,
Delhi. ..........................................(A-4)
Digitally signed
ANIL byDate:ANIL ANTIL
CBI Case No. 191/19 ANTIL 2024.04.03
17:08:37 +05301 of 145
CBI vs. Narain Diwaker etc (Imamia CGHS)
5. Rakesh Kumar
s/o Sh. Uddho Das Hasija,
R/o Flat no. 113, Type-II,
Delhi Admn. Flats,
Gulabi Bagh, Delhi........................................(A-5)
6. Shakir Hussain,
s/o Late Zakir Hussain,
R/o 983, Mohalla Kishan Ganj,
Teliwara, Delhi. 110006 ....................................(A-
6)
7. Anil Kumar
S/o Late Sh. Khem Chand,
Flat no. 110, Sector-I,
Pocket A-3, Rohini,
Delhi. .......................................(A-7)
8. Ashwani Sharma,
S/o Sh. R.K. Sharma,
R/o 291-A,
Pocket-C, Mayur Vihar,
Phase-II, Delhi. .......................................(A-8)
9. Naveen Kaushik
s/o Late Sh. Mahender Dutt Sharma,
r/o 1-2/38, 2nd Floor,
Sector-16, Rohini,
Delhi. ......................................(A-9)
10. P.K. Thirwani
S/o Late Sh. M.R. Thirwani
R/o 348-E, Pocket-2,
Mayur Vihar, Phase-I,
Delhi-110091 .......................................(A-10)
Date of Institution : 02.12.2008
Arguments Concluded : 28.02.2024
Clarifications Sought : 19.03.2024
Announced on : 28.03.2024
CBI Case No. 191/19 2 of 145
CBI vs. Narain Diwaker etc (Imamia CGHS)
Decision : (i) Accused Sh. Narender Kumar
(A-4) and Sh. P.K. Thirwani (A-
10) stands convicted for the
offences punishable under
Section u/s 120-B IPC r/w
Section 15 r/w Section 13(2) &
Section 13(1)(d) of P.C.Act, 1988
and the substantive offences
u/s 15 r/w section 13(2)/13(1)
(d) of the P.C. Act.
(ii)Accused Narain Diwakar
(A-1), Sh. N.S. Khatri (A-3),
Sh.Rakesh Kumar (A-5), Sh.
Shakir Hussain (A-6), Sh. Anil
Kumar (A-7), Sh. Ashwani
Sharma (A-8) and Sh. Naveen
Kaushik (A-9) stands acquitted
of all the charges so framed
against them in the present case
JUDGEMENT
1. The above named accused persons have been charge- sheeted by the prosecuting agency (CBI) to face trial for committing offences punishable under Section 120-B IPC r/w Section 406, 420, 468, 471 IPC and Section 13(2) r/w Section 13(1)(d) of PC Act, 1988 as well as substantive offences thereto.
2. In short, the present case relates to the alleged forgeries committed by the accused persons in the records of a Group Housing Society namely 'Imamia CGHS Ltd' by dishonestly and fraudulently preparing false documents for revival of the Society for allotment of the land at concessional rates on priority basis for developing Group Housing Society.
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3. That in compliance of the directions of Hon'ble High Court of Delhi passed on 02.08.2005 in Civil Writ Petition no.10066/2004 an inquiry was registered and carried out vide Preliminary Enquiry no.PE No.EOU-II-2005-E-001 registered on 08.08.2005, and after its completion, the present FIR bearing no. RC No. 01(A)/ 2006/ ACU-VIII was registered on 03.01.2006 under Section 120-B r/w 406,420/468/471 IPC & Section 13(2) r/w 13(1)(d) of P.C Act,1988 & substantive offences thereof against accused Narain Diwakar, Ramesh Chandra, N.S. Khatri, Narender Kumar, Rakesh Kumar, Shakir Hussain, Mayank Goswami, Ashwani Vig and unknown officials of the RCS, New Delhi and other unknwon private persons.
FACTS OF THE CASE : -
4. Thus the case of the prosecution herein is that Sh.
Narain Diwakar, the then RCS (A-1), Sh. Ramesh Chander, the then Assistant Registrar (A-2) Sh. N.S. Khatri, the then PA to RCS (A-3), Sh. Narender Kumar, the then Grade III Inspector (A-4), Sh. Rakesh Kumar, the then dealing assistant (A-5), all employed in the office of RCS entered into criminal conspiracy with Sh. Shakir Hussain (A-6), Sh. Mayank Goswami and Sh. Ashwani Vig ( both not chargesheeted ) with unknown persons and got revived the Imamia Cooperative Group Housing Society Ltd.
5. That in pursuance to the criminal conspiracy Sh. Shakir Hussain sold the Imamia CGHS Ltd through Sh.Mayank Goswami and Sh. Ashwani Vig to Sh. Prem Prakash Wadhawa for a sum of Rs. 8 lakhs and the office of the Society from House CBI Case No. 191/19 4 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) no. 983, Mohalla Kishan Ganj, Azad Market, Delhi was changed to C-16, New Brij Puri, Delhi-51
6. That the office bearer of the Society applied for revival of the Society and due to shortcomings in the said application Sh. Ramesh Chandra (A-2) appointed Sh. Narender Kumar (A-4) with the directions to furnish report in respect of existence of the Office and locus standie of Imamia Society and Verification of documents submitted by Sh. Anil Kumar (A-7) but the false report was submitted by him.
7. That in the report he had shown 74 Promoter members, 55 newly enrolled members and 42 resignations leading to the effective strength as 87 members and affidavits, minutes of meeting, balance sheet etc produced by the Society.
8. The majority of the resignation letters of 42 members shown to have resigned are bogus and forged to accommodate new members of their own choice ; the matter was forwarded by Sh. Ramesh Chandra (A-2) to Sh. Narain Diwakar (A-1) ; that the notice u/s 63(3) of DCS Act, 1972 was issued for hearing and finally on the basis of forged documents and false report, the Society was revived.
9. Investigation revealed that on 31.12.1983, Imamia Apartments CGHS Ltd was registered vide registration no.124 with 74 Promoter members and Sh. Mohd. Tehsin Haider President, Sh. Shameen Haider Vice-President, Sh. Shakir Hussain (A-6) Hon. Secretary and Mohd. Abid Treasurer were the office bearer of the Society with registered address /office of the Society i.e House No. 983, Mohalla Kishan Ganj, Azad CBI Case No. 191/19 5 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Market, Delhi-110006, which was increased to 87 by inducting 13 new members in the year 1985.
10. That thereafter due to non compliance of the DCS Act & Rules, 1972, Sh. Sathish Mathur, the then Dy Registrar, CGHS in exercise of his powers u/s 63 of DCS Act, 1972 passed order on 03.09.1990 in F-47/1224/Coop./11250 for winding up of the Imamia CGHS Society with immediate effect for liquidation.
11. Investigation revealed that accused Anil Kumar (A-7) made available all the concerned original documents i.e. Membership Register, Bye-laws, Proceeding Register, Election Register and other such supporting documents, so received from accused Shakir Hussain (A-6), to accused Ashwani Sharma (A-
8) and Naveen Kaushik (A-9) for their completion.
12. Investigation further revealed that accused Ashwani Sharma (A-8) and Naveen Kaushik (A-9) thereafter prepared various forged documents including Applications Forms, Resignation letters, Minutes of Proceedings of GBM dated 22.12.2003 placed at page no. 3 to 9 of Proceeding Register ; Minutes of Proceeding for Special GBM dated 19.10.2003 placed in Proceeding Register no. 1 to 4 to show that the Election was held at C-16, New Brij Puri Delhi ; the nomination form dated 22.12.2002 placed at page no. 7 to 13 of Election file, Audit Report alongwith Balance Sheet, Receipt and Payments, Income and Expenditure, Cash in hand Certificate, list of Managing Committee, list of enrolled members etc all antedated ; Inspection report for the period 01.07.1987 to 31.03.2003, which were required for revival purpose.
CBI Case No. 191/19 6 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS)
13. It was further revealed that Sh. S.L. Bhandula, Sh. Sachin, Sh. Jagjeet Kaur, Sh. Brij Mohan, Sh.D.P. Dabas, Sh. Ved Prkash, Smt. Prabha Khurana, Sh. Mazahir Hussain, Sh. Shamim Haider, Smt. Saida Bano and some other members placed in the RCS file never tendered their affidavits and denied the signatures appearing on their respective affidavits filed in support of their membership application.
14. Investigation revealed that vide a letter dated 05.02.2003, the request letter for revival of defunct Society mentioning that shortcomings, which led the Society to winding up, have been removed was submitted to the RCS by the President/Secretary of Imamia CGHS by Sh. Anil Kumar (A-7) and Sh. Ashwani Sharma (A-8).
15. That in furtherance of criminal conspiracy Sh. Rakesh Kumar (A-5), LDC put a note before the then AR Sh. Ramesh Chandra (A-2) mentioning that the shortcomings led to the order of winding up of the Society have been removed but the said letter was not bearing the name of President/Secretary of the Society and this fact was in his knowledge.
16. That on 07.04.2003 Sh. Ramesh Chandra AR appointed Sh. Narender Kumar, Inspector Gr. III (A-4) to undertake verification of Imamia CGHS.
17. That Sh. Narender Kumar Inspector (A-4) despite knowing that the Society has furnished false and forged documents in connivance with Anil Kumar (A-7) and other persons and in collusion between them submitted a false report dated 06.06.2003 mentioning that he had visited at Brij Puri CBI Case No. 191/19 7 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) address and Sh. Anil Kumar (A-7), Secretary of the Society had met him, and he verified the entire documents of the Society.
18. However, it was revealed that Society never functioned from the said address and the inspection report bears the handwriting and signatures of accused Ashwani Sharma (A-8), who had forged the signatures of the Secretary Sh. Anil Kumar on the same.
19. That on the basis of report dated 06.06.2003, a note for consideration and revival of the Society u/s 63(3) of DCS Act, 1972 was put up by Sh. Rakesh Kumar, the then Dealing Assistant (A-5), and it was forwarded by Sh. Ramesh Chandra AR, RCS for its revival and approval of the list of members for the allotment of land on 13.06.2003, before the RCS Sh. Narain Diwakar (A-1), who subsequently issued the order of revival u/s 63(3) vide No. F.47/1224/GH/Coop./3768-3773 dated 04.09.2003 by directing the society to complete Audit and Election proceedings of the Society, and Sh. N.S. Khatri (A-3) Reader to the RCS was appointed as Election Officer to conduct Election of the Managing Committee.
20. Investigation further revealed that Sh. P.K.Thirwani (A-10) was appointed as an 'Auditor' by the officials of the RCS and he submitted a false report with dishonest and fraudulent intention on the basis of forged documents made available by Sh. Anil Kumar (A-7), prepared by Sh. Ashwani Sharma (A-8) and Sh. Naveen Kaushik (A-9) without visiting the office or meeting any Office bearer.
21. That accused N.S.Khatri (A-3) in connivance with CBI Case No. 191/19 8 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) other accused persons also submitted false election report dated 21.11.2003, stating to have conduct the elections of the Management Committee on 19.10.2003, however, no member of the Society attended the said meeting regarding elections.
22. That thereafter Sh. Ramesh Chandra (A-2) AR forwarded the list of 87 members including 42 fake members of the Society vide letter no. F-47/1224/Cop/GH/East/1087-88 to Asstt. Registrar Policy for onward transmission of list to DDA for allotment of land.
23. Investigations revealed that Sh. Anil Kumar (A-7) received two letters regarding allotment of land and reply to the same with the forged signatures under the hand of Sh. Ashwani Sharma (A-8) was sent to RCS and DDA.
24. That during investigations the GEQD opinion on the questioned documents were obtained and GEQD, Kolkata vide report dated 10.10.2006 confirmed the forgery in the Minutes of Proceedings, Applications Forms for induction of members, Resignation letters, Nomination Form, Audit Report, Affidavits and fake Proceedings recorded in the Membership Registers, in the hands of accused Ashwani Sharma (A-8) and Naveen Kaushik (A-9).
25. Thus, on the basis of the evidence so collected, it is the case of prosecution that the above mentioned accused persons entered into a criminal conspiracy with common object for approval of the List of the members of the Society for onward transmission to DDA to seek land at concessional rates on priority basis for developing Group Housing Society, and thus CBI Case No. 191/19 9 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) they all have 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.
26. Additionally, the charge sheet for commission of offence u/s 406 IPC was filed against the accused Shakir Hussain (A-6).
27. Sanction for prosecution of the public servants/ accused Sh. Narender Kumar (A-4) ; Sh. N.S. Khatri (A-3) ; Sh. Rakesh Kumar (A-5) and Sh. P.K. Thirwani (A-10), was duly taken from the competent Authority.
28. In so far as accused Narain Diwakar (A-1, the then Registrar) and Sh. Ramesh Chandra (A-2, the then Asstt Registrar ) are concerned, they had already retired, and therefore, no Sanction in terms of Section 197 Cr. P.C. and/or Section 19 of the P.C. Act was taken qua them.
29. After completion of the investigation, the charge sheet was filed . Cognizance of the offences was taken and they all were summoned and compliance of Section 207 Cr.P.C was made accordingly.
30. Vide detailed order dated 13.04.2011, on the point of charge, the learned predecessor of this court opined that prima- facie there are sufficient material to frame charges against all the accused persons as mentioned underneath :-
i) For the offences punishable u/s 120-B IPC r/w Section 403/420/468/471 IPC r/w Section 468 IPC and Section 13(2) r/w Section 13(1)(d) of P.C.Act, 1988, against all the nine CBI Case No. 191/19 10 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) (09) accused persons.
ii) For the substantive offence punishable u/s 403 IPC against the accused Shakir Hussain (A-6).
iii) For the offences punishable under Section 420 IPC r/w Section 511 IPC against the accused Anil Kumar (A-7)
iv) For the offences punishable under Section 468 IPC against the accused Ashwani Sharma (A-8) and Naveen Kaushik (A-9).
v) For the offences punishable under Section 471 IPC r/w Section 468 IPC against the accused Anil Kumar (A-7) and Ashwani Sharma (A-8)
vi) Further for the offences punishable under Section 15 r/w Section 13(2) r/w Section 13(1)(d) of P.C. Act, against the accused persons namely Narain Diwakar (A-1), Ramesh Chandra (A-2) N.S. Khatri (A-3) Narender Kumar (A-4) Rakesh Kumar (A-5) and P.K. Thirwani (A-10).
31. Accordingly, separate charges for the aforesaid offences were framed against the respective accused persons, to which they all pleaded not guilty and claimed trial.
32. Accused Sh.Ramesh Chandra, AR, RCS (A-2) had expired during the course of the trial therefore the judicial proceedings against him stands abated accordingly.
PROSECUTION EVIDENCE :
33. Prosecution in support of its case have examined 62 witnesses and relevant testimony of the said witnesses is noted hereunder.
34. PW-1 Sh. Abdul Hamid deposed that in the year CBI Case No. 191/19 11 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) 1983, he became the member of Imamia CGHS after submitting affidavit Ex PW1/B in the file Ex PW1/A (D-17) ; he identified Certificate of Registration of Society Ex PW1/D, three copies of the By-laws Ex PW1/F, Ex PW1/G & Ex PW1/H of the Society containing list of 74 members of the Society and his signatures Ex PW1/E appearing at Serial No.22 at page no. 20, the application of Registration of Co-operative Society ExPW1/J alongwith Proforma Ex PW1/K.
35. Witness specifically stated that he is still member of the Society and have not resigned ; the resignation letter dated 29.10.1988 Ex PW1/M showing receiving membership payment of Rs.100/- back is not having his purported signatures (Q-631) and it has been appended by some one. And latreon he came to know that Society has been wound up by the orders of RCS Officials.
36. In his cross-examination conducted on behalf of accused Shakir Hussain (A-6) stated that he did not recollect the name of the office bearer who informed him about wounding up of the Society.
37. And on behalf of accused N.S. Khatri (A-3) he stated that he never visited Office of RCS nor filed any complaint about his forged signatures to the RCS office or otherwise.
38. He was not cross-examined by other accused persons.
39. PW-2 Sh. Shamim Haider deposed that he remained founder member of Imamia CGHS formed in the year CBI Case No. 191/19 12 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) 1983 and the address of the Society was either 985 or 983, Kishan Ganj, Teliwara, Delhi-6 ; that at the time of registration of the Society there were 74 promoter members and Sh. Tehsin Haider was President, Sh. Mohd. Abid was Financial Secretary and Sh. Shakir Hussain was the General Secretary of the Society.
40. Witness identified his signatures at page no. 338 (D-
17) ExPW1/A, affidavit dated 27.09.1983 (page no. 229, D-17) Ex PW2/A, another affidavit placed at page 358, D-13 Ex PW2/B.
41. He admitted his Verification certificate Ex PW2/C, Election Card Ex PW2/D, Ration Card Ex PW2/E Statement of Account Ex PW2/F, Passport Ex.PW2/G and Permanent account number (Pan card) Ex PW2/H. submitted to RCS for verification of his membership in the year 2005.
42. PW-2 specifically deposed that the Affidavit Ex PW2/J (page no. 404-C, D-21) does not bear his signatures and someone has forged his signatures ; that the Proceedings register of the Society Ex PW2/K (page 1 to 100, D-2) was maintained by Sh. Shakir Hussain being Secretary of the Society.
43. That the meeting held on 14.09.1983 at House No. 983 was attended by 74 promoter members and proceedings qua this was recorded in four pages by the Secretary of the Society Ex PW2/K-2.
44. That in the said meeting he (Sh. Shamim Haider) was elected as as Vice Present, Sh. Mohd. Tehseen Haider as President, Sh. Shakir Hussain as Honorary Secretary, Sh. Mohd. Abid as Treasurer and Sh. Akbar Ali, Sh. Muzahir Hussain & CBI Case No. 191/19 13 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Sh. Shabir Hussain as Executive members of the Society.
45. Witness also identified the signatures of Society bearers on the register Ex PW2/K and stated that decision for opening the bank account was passed.
46. He also identified his signatures and the signatures of Sh. Shakir Hussain, Secretary and Sh. Mohd. Tehsin Haider on the proceedings held on 14.08.1984 Ex PW2/K-5 and on another proceedings held on 13.04.1985 Ex PW2/K-6, in which decision to increase the members of the Society and opening of another account in Bombay Merchantile Bank was taken.
47. He deposed that in the minutes of meeting held on 10.05.1985, Ex PW2/K-7, the resolution PW2/DC qua induction of 13 new members was confirmed w.e.f. 10.05.1985 ; and vide Ex PW2/K-B, it was resolved that the Secretary, President and Vice President of the Society were authorized to submit the final list before the RCS.
48. That in the meeting held on 15.07.1985, the letter received from RCS office dated 05.07.1985 was discussed vide which they were directed to submit the final list upto 31.07.1985. Accordingly a list of 87 members alongwith affidavit of the Secretary was submitted to the RCS on 29.07.1985 and at that time, he was looking after the work of the Society as Vice President.
49. Witness after seeing the Minutes of Meeting(s) dated
- 05.09.1985 Ex PW2/K-10 ; - whereby Secretary had informed that a list of 87 members have been submitted to the CBI Case No. 191/19 14 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) RCS Office ;
- 27.12.1985 Ex PW2/K-11 - Secretary authorized to visit RCS office for Audit purpose ;
- 25.02.1986 Ex PW2/K-12 - members were directed to deposit the amount of land which is going to be allotted in the year 1987 is mentioned ;
- 20.04.1986 Ex PW2/K-13 - informing that Audit is almost complete and information has been given to auditor M/s G.S. Mathur & Company, Chartered Accountant ;
- 30.06.1986 Ex PW2/K-14 - wherein it was pointed out that Society had become member of DHF Corporation Ltd ; had purchased Share of Rs. 5000/- alongwith Membership of Rs.100/- and Shakir Hussain appointed as Custodian of records to get the books of accounts upto date for Audit upto 30.06.1986 ;
- 15.09.1986 Ex PW2/K-15 - decided that Sh. Shakir Hussain, Secretary, shall visit the Registrar Office and fix time for audit of the records ;
- 01.11.1986 - GBM was held, proceeding were recorded vide Ex PW2/K-16 and it was resolved that the same management committee was unanimously re-elected and members were requested to deposit the land money as the same is going to be allotted ;
- Minutes of meeting dated 10.12.1986, Ex PW2/K- 17, dt 05.02.1987 Ex PW2/K-18, dt 20.04.1987 Ex PW2/K-19, dt 01.08.1987 Ex PW2/K-20, dt. 04.11.1987 Ex PW2/K-22, dt CBI Case No. 191/19 15 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) 02.02.1988 Ex PW2/K-22, dt 10.05.1988 Ex PW2/K-23 (from page no. 1 to 35 D-2 ) ;
identified his signatures and the signatures of Sh. Shakir Hussain as 'Secretary' and Sh. Mohd. Tehsin Haider as 'President' on the same.
50. Witness stated that entries available at Pages 36 to 55 Ex PW2/M of the Proceeding Register Ex PW2/K were not written or signed by any of the member of the Management Committee ; their names have been mentioned, and it appears to be bogus and mischievous minutes written by some one.
51. He further deposed that Ex PW2/L (D-3) was maintained and at Page no.1 to 10, the particulars of 74 (Muslim) Promoter members and 13 more added members are mentioned. The details of non-muslim members registered at PW2/DC serial no. 88 to 129 at page no. 11 to 16 are of bogus members and they were inducted illegally without his knowledge and information to other members of the Society.
52. That all the documents, correspondence files and other records including membership register of the Society remained in possession of accused Sh. Shakir Hussain (A-6) being Secretary of the Society and it was his duty to call meeting either General Body Meeting or Management Committee and also to record the minutes of the said meetings.
53. Witness stated that being the Vice-President of the Society his duty was to preside meetings of Management Committee and Annual General Meeting etc in the absence of President of the Society ; that he remained on the same post till CBI Case No. 191/19 16 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) 03.03.2005 and resigned after receiving the Notice from RCS dated 11.02.2005 Ex PW2/H & exhibited copy of his reply Ex PW2/J submitted against the said notice ; and at that time he came to know that some other members were inducted illegally after manipulation in the records but was not aware as to who had entered the name of said persons from serial No. 88 to 129.
54. Witness identified the signatures of Sh. Tehsin Haider 'President', Shakir Hussan 'Secretary' and Mohid Abid 'Treasurer' on the Balance Sheet of the Society for the period 01.07.1986 to 30.05.1987 Ex PW2/N-2 and at page no. 4 of the said document, receipt and payment statement Ex PW2/N-3 was prepared, all part of (D-22).
55. PW-2 further stated that Proceeding Register already Ex PW7/D containing 100 pages and at page no. 1 to 4 Ex PW7/E, 10/D, the election shown in the same was never conducted by the Society and the address of the Society mentioned in it is false.
56. Witness clarified that writing on page no. 1 to 4 are not in the hands of any office bearers with whom he had worked and list of 87 members Ex PW2/N-6 is the correct one.
57. That the application for revival of Society dated 02.05.2001 Ex PW2/N-7 (D-26) was filed by Sh. Shakir Hussain, Secretary under his signatures.
58. He stated that another application dated 05.02.2003 Ex PW2/N-8 on the letter head of Society with address C-16, New Brijpuri for revival of Society does not bear the signatures of any promoter member of the Society, pursuant to which the CBI Case No. 191/19 17 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) case of the Society was taken for revival by RCS Officials.
59. That he did not receive any notice in the year 2003, for the election of the Society nor was he aware that Mr. N.S. Khatri (A-3) had been appointed as Election Officer of the Society.
60. It was further stated that applications from page no. 1 to 13 (D-27) are of 13 genuine members, whereas from page no. 14 to 55 (D-27) the applications are of 42 bogus members. He denied having seen proceeding registers D-23 & D-24 during his tenure.
61. The witness after seeing the file Ex PW1/L stated that list of consolidated 42 members shown to have been resigned Ex PW2/Q-1 are the genuine members and they have not resigned from the membership of the Society ; the resignation letter and the receipt with regard to the return of membership fees of Rs. 100/- are false and he has no knowledge as to who had prepared the same.
62. After a detailed examination witness was tendered for cross-examination but was not cross examined on behalf of accused persons namely Sh. Narain Diwakar (A-1), Sh. Ramesh Chandra (A-2), Sh. N.S. Khatri (A-3), Sh. Narender Kumar (A-
4), Sh. Rakesh Kumar (A-5), Sh. Anil Kumar (A-7) Sh. Ashwani Sharma (A-8) Sh. Naveen Kaushik (A-9) and Sh. P.K. Thirwani (A-10), except accused Sh. Shakir Hussain (A-6).
63. During cross-examination PW-2 stated that he did not know any person by the name of Mr. Mayank Goswami nor about handing over the documents concerning the Society to Sh.
CBI Case No. 191/19 18 of 145
CBI vs. Narain Diwaker etc (Imamia CGHS)
Mayank Goswami & Ors.
64. He further deposed that he did not know whether the documents of the Society i.e Minutes book of meeting of Executive Committee, Management Committee, General Body of Imamia CGHS, were available with 'Secretary' Mr. Shakir Hussain in the year 2005 ; and volunteered that since Mr. Shakir Hussain (A-6) was the Secretary of the Society, therefore, he supposed that the original records must be in his possession.
65. He stated that due to manipulation qua induction of new members in the Society he resigned from the Society, but admitted that he did not disclose this fact in his resignation submitted to the Society nor to the IO in his statement recorded during investigation.
66. He further admitted that a case in this regard was also filed by him against accused Shakir Hussain in Tis Hazari Courts, Delhi, and this fact was again not mentioned in his plaint Mark PW2/DF. The resignation was directly given to the Secretary on 05.03.2005 and this reason was also not mentioned in it.
67. To a specific question that there was no involvement of any of the office bearer of Imamia CGHS including Sh. Shakir Hussain in induction of members illegally in the Society, he answered in affirmative.
68. He identified the signatures of Sh.Mohd. Tehsin Haider 'President', Sh Mohd. Abid, Sh. Mazahir Hussain, Sh. Shabid Hussain & Sh. Shakir Hussain, on the nine sheets in total qua MC meetings dated 22.02.2005, 05.03.2005 & 22.04.2005, CBI Case No. 191/19 19 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) and additionally at page no.5 that of Sh. Akbar Ali and his own signatures.
69. He stated that he has no knowledge about these meetings or the minutes so prepared, and that he had seen these proceedings in the Court only during his examination.
70. Witness stated that after few weeks of his resignation he came to know from the Secretary that he had initiated a case in the court of law for deleting the names of un- authorized members, who were illegally inducted, and corrections in respect of English grammar at different points on Mark PW2/DD (6 pages) are in his own handwriting. He denied the signatures of Sh. Shakir Hussain at point A (Q-1134) on Mark PW2/DE.
71. PW-3 Sh. Mayank Goswami deposed that he deals in the sale and purchase of Flats, Plots, Renting etc in Dwarka ; he started his property business after leaving the job of Liason Officer in M/s Goel Associates Architect Firm ; that Sh. Shakir Hussain, Secretary of the Society met him in the office of RCS and stated that the list of members of the Society is not approved ; thereafter he introduced Mr. Shakir Hussain to Sh. Ashwani Vig and Sh. P.P. Wadhwa. but he denied his role into induction of members in various Group Housing Societies.
72. The witness was cross-examined by the learned Special PP as he was resiling from his earlier statement given to the CBI. Despite lengthy examination and confronting him with his earlier statement Ex PW3/PX, witness denied to have made any such statement to the CBI officials.
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73. PW-3 was not cross-examined by the accused persons except accused Shakir Hussain (A-6) and Sh. Anil Kumar (A-7).
74. PW-4 Sh. Ashwani Vig also deposed similarly that he deals in the sale-purchase etc business since his childhood as his father was Property Dealer ; he met accused Shakir Hussain (A-6), Sh. Mayank Goswami in the year 2002 and introduced Sh. Shakir Hussain to Sh. P.P. Wadhwa.
75. He stated that in the said meeting Shakir Hussain told that he was having documents pertaining to the Society and if he ( Mayank Goswami) could get the said documents rectified and he would handover the same to him ; on this Mr. Wadhwa stated that he would get the documents checked and verified from RCS Office first.
76. PW-4 stated that he used to facilitate the induction of members in the group housing Societies against the vacancies in the Society on commission basis. In the said meeting accused Shakir Hussain offered Mr. Wadhwa either to take over the Society or become a partner in running the Society, and for this purpose some records were handed over to him without any monetary transactions, and/or membership of the Society was not offered to Sh. P.P.Wadhwa or to Sh. Anil Kumar (A-7) by him.
77. In the cross-examination conducted on behalf of accused Shakir Hussain (A-6) witness denied the suggestions that documents of the Society were never handed over to Sh. P.P. Wadhwa or offered for running the Society and/or no meeting was held between P.P. Wadhwa in connection with any CBI Case No. 191/19 21 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) rectification & resignations of any members of Society.
78 The other suggestion put on behalf of accused Anil was also denied by this witness.
79. PW-5 Sh. Mohd. Tehseen Haider & PW-6 Sh. Mohd Abid were the founder members & President/ Treasurer of Imamia CGHS respectively since its corporation in the year 1983. Their testimonies are almost similar to PW-2, the other founder member and its Vice-President, wherein they have also identified the signatures of its Office bearers and approved the proceedings of the Society so undertaken till 10.05.1988.
80. They have also denied the proceedings and the membership reflected subsequently in the proceedings register, stating to be false and fabricated record.
81. PW-7 Sh. Anil Kumar Gupta deposed that he is residing in Rohini, Delhi since 1995 and in the business of construction of building, they are three brothers but no one ever become the member of Imamia Apartment CGHS.
82. After seeing the membership application dated 26.01.1988 Ex PW7/A (page 35 of D-27, Q-180), Affidavit dated 22.07.2003 Ex PW7/B (page 109 of D-21, Q-998 & Q-
999), membership register Ex PW2/L (D-3) bearing entry no. 100 ( page no. 12 Q-12 & Q-13) Ex PW7/C, Proceeding Register Ex PW7/D (D-23) in respect of Minutes of Proceedings of Election Ex PW7/E (point Q-261, Q-286), he denied his signatures and stated that someone must have forged his signatures on these documents.
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83. The witness was cross-examined by accused Shakir Hussain (A-6) only, wherein he stated that he has no knowledge whether a Civil Suit for declaration and permanent injunction with a prayer to declare the membership of inducted members/ defendants as illegal, invalid, void ab-nitio in the Society and cancellation of their membership has been filed for restoration of the original 87 members or that he has been arrayed as defendant no. 22 in the same.
84. PW-8 Sh. Brij Mohan Khurana also deposed that he never became the member of Imamia Apartment CGHS.
85. After seeing the membership application Ex PW8/A (page 52 of D-27), membership register Ex PW8/B ( page no. 16 D-3) bearing entry of his name at Sl. no. 126 (Q-51), Affidavit Ex PW8/D (page 126 of D-21), Proceeding Register Ex PW7/D (D-23) in respect of Minutes of Proceedings at Sr. No. 5 showing his membership no.126 (Q-258), he denied his signatures on these documents.
86. Witness was cross-examined by accused Shakir Hussain (A-6) and Naveen Kaushik (A-9), wherein he denied having knowledge about the Civil Suit bearing no.1498/08 filed by Sh. Shakir Hussain, Secretary of the Society.
87. PW-8 admitted that his name is appearing as defendant no.39 in the Certified copy of memo of parties Ex PW8/DA and his statement Ex PW8/DB (certified copy) was recorded in the said court on 22.09.2007.
88. And to the questions put on behalf of accused Anil Kumar (A-7) during cross-examination witness stated that his CBI Case No. 191/19 23 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) statement was recorded by the CBI, no correspondence from Imamia CGHS was received by him ; the particulars appearing against his name on Ex PW8/C and Ex PW8/D are correct, however, he had not taken any membership and no complaint was filed by him before the RCS for deletion of his name from membership of Imamia CGHS. He also stated that around 50-60 his specimen signatures were taken during investigation.
89. PW-9 Sh. Faiyyaz Hussain deposed that in the year 1983 membership of the Society was taken by him through accused Shakir Hussain, Tehsin Haider and Abid Hussain ; he identified his signatures at serial no. 42 on registration of Imamia, Ex PW1/K ; By-laws of the Society Ex PW1/J, PW1/H, Ex PW1/G & Ex PW1/F, Affidavit Ex PW9/A.
90. He further stated that he is illiterate, do not know the office address of the Society but it was in the house of Shakir Hussain, and do not know as to what was written in the Proceeding Register of the Society Ex PW2/K. He identified his signatures appearing on Ex PW6/B but denied on Ex PW6/D.
91. PW-9 stated that when he came to know in the year 2003 that his name was canceled from the membership of the Society by falsely showing him as Resigned, he approached the RCS office but in vain, and thereafter it was informed by Sh. Shakir Hussain (A-6) that the documents of the Society were taken by some person for its Revival.
92. He stated that the other member Sh. Zaffar Hussain made a complaint Ex PW9/B (D-10) to the DCP, Crime Branch in this regard, and identified his signatures as well as signature of CBI Case No. 191/19 24 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Sh. Zaffar Hussain at different points on the complaint, wherein the list of 87 original members as well as changed list of members was annexed.
93. Witness specifically denied his signatures on the Application Form dated 20.12.1988, Receipt of Rs. 100/-, Resignation letter (Ex PW9/D page 589 of D-21 already Ex PW5/F) .
94. PW-9 stated that he had visited RCS office and had deposited Affidavit qua proof of his membership, verification certificate attested by Gazzetted officer, attested copy of passbook, passport, membership receipt, Form-60 alongwith letter dated 16.03.2005 collectively exhibited as Ex. PW9/E.
95. Witness denied having known the person who had shown him resigned from the membership and the manipulation so carried out in the records of the Society.
96. The witness was declared hostile by the learned PP and permission to cross-examine him was sought. During cross examination, he admitted some suggestions put to him.
97. Witness was not cross-examined by the learned counsel for the accused persons on their behalf.
98. PW-10 Sh. Davinder Arora deposed that he is living in Delhi since 1970 and is in the business of property dealing in the name & style of M/s Surya Property at Prashant Vihar, Delhi.
99. Witness stated that he never became member of any Society ; after seeing the records of the Society, he stated that his CBI Case No. 191/19 25 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) particulars are correctly mentioned in the records but denied his signatures on the application dated 05.02.1988 Ex PW10/A at point A (D-27, page no. 40, Q-170) ; signatures at point A (Q-35) on membership register Ex PW2/L ; signatures at point A & B (Q-988-Q-989) on Affidavit Ex PW10/C ( D-21 page 114) ; signatures at point A (Q-289) on Proceeding register Ex PW7/D ( D-23) and signatures at point A & B (Q-333-Q-334) on Resignation application.
100. Witness was cross-examined on behalf of accused Sh. Narender Kumar (A-4), Sh. Rakesh Kumar (A-5), Sh. Naveen Kaushik (A-9) & Sh. P.K. Thirwani (A-10), whereby he stated that neither he nor his father ever got introduced any person to become a member of Imamia CGHS and none of his friend or his father's friend was the office bearer of the said Society ; that in the CBI office he came to know some one had misused his name and details however, no complaint in this regard was made by him to the police or any other authority. He denied the suggestion of becoming member in the Society.
101. To the questions put on behalf of accused Shakir Hussain (A-6), he stated that he was not aware whether any Civil Suit no.1498/2008 was filed by accused Shakir Hussain (A-6) before the learned court having jurisdiction over the Civil matters ; that no summons of the said case were received by him from the said learned Civil Judge, Tis Hazari Court ; that he had not engaged Sh. Jai Deep Malik Advocate to represent his civil Suit ; and after seeing the Memo of parties Ex PW8/DA, Order sheet Ex PW8/DB and certified copy of ex-parte order sheet dated CBI Case No. 191/19 26 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) 20.03.2009 ExPW10/DA, he denied having knowledge of the same to him.
102. PW-11 Sh. Dharampal also denied having taken the membership of the Society ; he stated that his particulars are correctly mentioned in the records but denied his signatures on the application dated 10.01.1989 Ex PW11/A at point A (D-27, page no. 47, Q-156) ; signatures at point A (D-3, page no. 15 Q-
44) on membership register Ex PW2/L, again exhibited as Ex PW11/B ; signatures at point A & B (Q-974-Q-975) on Affidavit Ex PW11/C ( D-21 page 471-C) ; and signatures at point A & B (Q-319 & Q-320) on the resignation application alongwith cash receipt Ex PW11/D.
103. In the cross-examination conducted on behalf of accused Sh. Narender Kumar (A-4), Sh. Rakesh Kumar (A-5), Sh. Naveen Kaushik (A-9) & Sh. P.K. Thirwani (A-10) he stated that he is income tax payee, has own built up house on a plot and not aware who has provided his details. He denied the suggestion of becoming member in the Society.
104. Accused Shakir Hussain (A-6) cross-examined the witness and he stated that he did not know Shakir Hussain (A-6) or filing of any Civil Suit no.1498/2008 against him or that he has been proceeded ex-parte in the said suit.
105. PW-12 Sh. Hazi Zaffar Hussain deposed that he became the member of Imamia CGHS in the year 1985 through Sh. Shakir Shakir Hussain, Tehsin Haider & Abid Hussain and produced Original receipt Ex PW12/A vide which Rs. 110/- were deposited through Sh.. Mohd. Abid.
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106. That after 1985-86 there were no activities in the Society ; Sh. Shakir Hussain informed him that Society has been cancelled, but through Internet he came to know that there were names of 43 old members in the list of about 85 members, and his name has been deleted (Kaata Hua Hai) ; that in the meeting called at the house of Sh. Shakir Hussain, it was informed that one Sadhu had taken the documents of Society, and he did not know the reason of handing over the Society documents to him.
107. He stated that he visited Govt. office and deposited some documents including copy of his membership receipt, Affidavit qua proof of his membership, Verification certificate attested by Gazzetted officer, attested copy of Passbook, Passport, membership receipt, Form-60 alongwith forwarding letter dated 10.03.2005 collectively exhibited as Ex. PW12/C in support of his membership in the Society.
108. He stated that application dated 04.01.1988 qua his resignation Ex PW12/E ( page 578/C D21) was not moved by him ; he was not aware as to who had put his signatures on the said application as well as on the receipt at Point A.
109. That another member Sh. Faiyyaz Hussain made a complaint Ex PW9/B (D-10) to the DCP, Crime Branch in this regard, and he identified his signatures as well as signature of Sh. Faiyyaz Hussain on the same at different points. His statement Ex PW12/D was recorded by the local Police.
110. Witness stated that accused Shakir Hussain had done all the forgery in the case and cheated him and other members.
111. Witness was cross-examined on behalf of accused CBI Case No. 191/19 28 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Shakir Hussain (A-6) and in his cross-examination he stated that he did not see accused Shakir Hussain manufacturing any document for the purpose of deleting his name from the membership of Imamia CGHS or adding any other name in his place.
112. He stated that he took the name of Shakir Hussain, A-6 as he was not satisfied with the explanation of accused that one Sadhu had taken away all the records from him, and since it was in his possession, therefore, he could have done all the acts of fraud and forgery.
113. Witness stated that he knows Urdu language only and signed in Urdu but with the assistance of any person he can understand the content if written in English ; that his statement was recorded by the CBI in English language and signed by him.
114. Witness stated that during his statement before the CBI official he suspected that the President and the Secretary of the Society had dishonestly and fraudulently removed their names and sold the Society, but in the court during his testimony he named only Secretary as he understood that the President and Secretary are the same person i.e. Shakir Hussain.
115. PW-12 further stated during his cross that he did not remember whether he mentioned the name of Mr. Sadhu as the person to whom the documents of the Society were handed over in his statement before the CBI or in the complaint to the DCP or in the statement recorded by the local police. The said documents were shown to the witness and he admitted it is not so written.
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116. PW-12 also admitted that he had mentioned about the stand taken by accused Shakir Hussain that records were taken by one Sh. Goswami, Sh. Anil Kumar and Sh. Naresh Kumar on 03.03.2003 and a complaint to this effect was made on 28.04.2005.
117. Witness admitted that the meeting was held on 23.03.2005 after he came to know through internet about deletion of his name ; that it was also attended by him and 24 other persons from his group ; minutes were recorded in the register Ex PW12/DB, and he identified his signatures Ex PW12/DC & their signatures on the proceedings.
118. PW-12 admitted that in the said meeting it was informed that one Mr. Mayank Goswami had taken away the registers etc of the society who had not returned the same.
119. He further stated that in the meeting they were not informed that assurance has been given by RCS that only genuine members will be considered for allotment of land and they should keep ready their documents for depositing the same with RCS.
120. He stated that he has no knowledge if Shakir Hussain had filed a Civil Suit bearing no.1498/08 for taking away of the documents ; that no meeting was attended by him after he became member in 1985 ; he did not know anything about the efforts which were made for revival of the Society between the period 2000-2003.
121. He was not aware if during the said period Mr. Goswami, Mr. Anil Kumar and Mr. Naresh Kumar approached CBI Case No. 191/19 30 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Sh Shakir Hussain as well as President and other Committee members with a proposal to get the Society revived and on that pretext took away the registers and records of the Society in a dishonest and fraudulent manner.
122. Further, witness was cross-examined on behalf of accused Anil Kumar (A-7) and during cross he stated that the complaint made to the local police Ex PW9/D was a typed one ; he did not know how the addresses of Mr Goswami, Mr Anil Kumar and Mr. Naresh Kumar was mentioned in the complaint.
123. He conceded that he had not supplied the same at the time of typing nor knew as to who had typed the complaint nor where it was typed, and had only heard their names from Sh. Shakir Hussain. He was now aware as to what action was taken by the police on complaint Ex PW9/D nor he visited DCP office to know the fate of the same.
124. Witness was also cross-examined on behalf of accused Ashwani Sharma (A-8) and he stated that his statement was recorded by the CBI in English language and his specimen signatures were taken by the CBI.
125. The witness was not examined by other witnesses.
126. PW-13 Smt. Jagjit Kaur stated that she never became member of any Group Housing Society including Imamia CGHS ; She never signed any document nor attended any meeting of the said Society.
127. That after seeing her name appearing at serial no 127 at page 16 already Ex PW8/B of membership register already Ex CBI Case No. 191/19 31 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) PW2/L, she stated that except occupation all her details are correctly mentioned, but she denied her signatures on membership application Ex PW13/A (D-27 page 53 Q-145) ; Proceeding Register Ex PW7/D at point B of Ex PW10/D (Q-
292), and her signatures on the Affidavit dated 12.07.2003 Ex PW13/B at point A (Q-962-963).
128. The witness was cross-examined by accused Sh. N.S. Khatri (A-3) and she stated that none of her relatives were acquainted with the affairs of any Society or could have given her details to the Society.
129. During cross-examination on behalf of accused Shakir Hussain (A-6), witness denied having knowledge about pendency of any Civil Suit against several persons including her, nor was she aware of any advocate by the name Sh. Jaideep Malik representing them.
130. And after seeing the Memo of parties Ex PW8/DA of Civil Suit No. 1498/08 stated that her name is appearing at Serial no. 40, address is correct and not aware whether she has been proceeded ex-parte vide order dated 20.03.2009 ExPW10/DA in the said Suit.
131. Witness was not cross-examined by other accused persons.
132. PW-14 Sh. Madan Lal Kalra deposed that he never became member of any group housing Society including Imamia CGHS ; he never signed any document or attended any meeting of the Society.
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133. That after seeing his name appearing at serial no 88 at page 11 Ex PW14/A of membership register already Ex PW2/L, he stated that his details are correct but denied his signatures appearing on Ex PW14/A at point A (Q-2) ; membership application dated 05.11.1987 Ex PW14/B (D-27 page 14 Q-223) ; Proceeding Register Ex PW7/D at page no. 2 point E of Ex PW10/D (Q-273) and his signatures on the Affidavit dated 12.07.2003 Ex PW14/C at point A (Q-1040- 1041).
134. The witness was cross-examined on behalf of accused Shakir Hussain (A-6) and he denied having knowledge of Civil Suit filed against several persons including him on behalf of Imamia CGHS. He however conceded that he had appeared in the said Suit before the Court and got his statement ExPW8/DB recorded and that he had nothing to do with the said case.
135. PW-15 Sh. Manoj Kumar Jain deposed that in the year 2006 he was Director of Safe Finlease Pvt Ltd wherein Sh. Sunil Kumar and Anil Kumar (accused A-7) were other Directors alongwith him.
136. That he never became member of Society Imamia CGHS ; that application for becoming member was not moved by him ; that application already Ex PW2/N-46 (page no. 36, D- 27, Sl. no. 6) bears his correct particulars but he denied his handwriting at point B (Q-177) and signatures appearing at point A ( Q-178) on it.
137. After seeing the membership register already Ex CBI Case No. 191/19 33 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) PW2/L (D-3) where his name is appearing at serial no 110 page no. 14 Ex PW10/B denied his signatures at point B (Q-31), and his signatures at point A & B on the Affidavit Ex PW15/A (Q- 996-997).(D-21, page no. 460-C).
138. Witness stated that he never participated in any of the proceedings of the society, and after seeing the proceedings Register Ex PW7/D and proceedings recorded at page no.1 Ex PW7/E, denied his signatures appearing at point B (Q-262).
139. He further denied his signatures on the resignation letter and refund voucher at page no. 68 of D-25 Ex PW15/B at point A & B (Q-341 & Q-342).
140. PW-15 after seeing the proof of delivery of speed post addressed to the President/Secretary of Imamia CGHS stated that the signatures appearing at point A on the same appears to be in the style of accused Anil Kumar and it also bears the address i.e. A-3/42, Sector-3, Rohini, Delhi-85 belonging to accused Anil Kumar, Ex PW15/C.
141. The witness also identified the same address appearing on another proof of delivery of speed post addressed to the President/Secretary Ex PW15/D to be that of accused Anil Kumar (A-7) but failed to identify the signatures appearing on it.
142. PW-15 was cross-examined by the Ld. PP stating that he was resiling from his previous statement made before the IO u/s 161 Cr.P.C.
143. The witness was also cross-examined on behalf of accused Shakir Hussain (A-6), wherein he admitted about the CBI Case No. 191/19 34 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Civil Suit Ex. PW8/DA instituted through Secretary of the Society against 42 persons including him, but denied his knowledge if they were proceeded ex-parte vide order dated 24.07.2009 in the said Suit No. 1498/08.
144. PW-16 Sh. Firoz Ali deposed that in 1983 he became member of Imamia CGHS and deposited Rs. 110/-. He produced the original receipt and proved copy of the same as Ex PW16/A and identified his signatures at point B on Ex PW1/H, Ex PW1/G, Ex PW1/F and on affidavit Ex PW16/B.
145. He further deposed that a letter dated 08.03.2005 was written to the RCS for the purpose of verification of genuineness of his membership with the Society.
146. PW-16 identified the said letter Ex PW16/C and its enclosure i.e. affidavit Ex PW16/D, Form no. 60 Ex PW16/E, Verification certificate attested by Gazetted Officer marked PW16/F, copy of PAN card marked as PW16/G, Ration Card marked as PW16/H, Election I-card mark PW16/J, Passport copy marked as PW16/K, Bank Pass book marked as PW16/L.
147. After seeing the Resignation letter and refund voucher already Ex PW2/G.18 (D-18 page 21) he denied his signatures appearing on the same at point A and his handwriting thereon at point Q-648 & Q-649.
148 PW-16 identified his signatures appearing on the Proceeding Register already Ex PW2/K (D-2 Part II) with respect to attending of the meeting dated 14.09.1983.
149. The witness was cross-examined by Sh. Shakir CBI Case No. 191/19 35 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Hussain (A-6) and in his cross examination he admitted that in the year 2005 a meeting of the society was called wherein it came to their knowledge that names of some genuine members of the society were deleted from its membership.
150. He stated that the said meeting was attended by 40- 50 members ; he had no knowledge that Society had ever become defunct and he left the meeting within 10-15 minutes ; that in his presence no discussion had taken place for the revival of the Society or that the documents of the society had been given to Mr. Mayank Goswami and he was not returning the same.
151. Witness denied the suggestion that Shakir Hussain informed that a criminal complaint had been filed at PS Preet Vihar and RCS office against Mr. Mayank Goswami ; and it was suggested that members were to go to RCS office and provide their documents for corrections in the records ; and/or Shakir Hussain or office bearer of the Society visited at his house and suggested him for filing of the application with the office of RCS for verification of genuineness of his membership documents.
152. He was also not aware if Shakir Hussain had filed a Civil Suit for declaration of inducted members introduced by forgery in the list of members as illegal, invalid, void ab-initio, and cancellation of their membership from the society.
153. PW-17 Sh Mohd. Wasim deposed that in the year 1983 membership of the society was taken by his father by depositing Rs. 110/- ; that his father expired on 31.12.2002 and thereafter his mother Smt. Nafis became the member of Imamia CGHS ; that neither his mother nor his father resigned from the CBI Case No. 191/19 36 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) membership or taken back their money.
154. After seeing the documents related to membership i.e. application dated 11.04.2005 (page no.743 D-11) ExPW17/A, he identified the signatures of his mother on the same ; the photocopy of the receipt dated 02.09.1983 in the name of his father Mark PW17/B-1, Death Certificate of his father late Mohd. Sadiq Ex PW17/B-2, attested copy of the Election I-card of her mother Ex PW17/B-3, photocopy of identity card of attesting officer marked as Ex PW17/B-4.
155. He further identified the attested copy of Ration Card of his father bearing the signatures of his mother Ex PW17/B-5, two affidavits of his mother Ex PW17/B-6 & Ex PW17/B-7, Form- 60 under Income Tax bearing signatures of his mother Ex PW17/B-8 and the Verification Certificate bearing photograph of his mother at point A, signatures at point B and signatures of attesting officer at point C on Ex PW17/B-9. These documents were deposited in the office of RCS by his mother.
156. Witness stated that the signatures appearing on Resignation Letter-cum-Refund Receipt Ex PW2-Q-21 were not that of his father or mother.
157. He also identified the signatures of his father on Bye-laws of Imamia Ex PW1/F to Ex PW1/H, Affidavit dated 02.09.1983 (page no. 177 to 180 D-17) Ex PW17/C (colly.), Membership Register Ex PW2/L (D-3) and signatures of his father appearing at point B against serial no. 30 on page no. 4 as Ex PW17/D.
158. Despite opportunity witness was not cross examined CBI Case No. 191/19 37 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) by the learned counsels for the accused persons.
159. PW-18 Sh. R. Narainaswami retired IAS deposed that in the year 2006-2007, he was posted as Chief Secretary of Govt of NCT of Delhi and after going through all the material placed before him he accorded Sanction for prosecution of accused P.K. Thirwani Ex PW18/A.
160. The witness was not cross-examined despite opportunity.
161. PW19 Sh. Mirza Raftar deposed that in the year 1985, he obtained the membership of the Society by paying membership fee of Rs. 110/- through Shakir Hussain, Secretary and at that time Sh. Tehsin Haidar was the 'President' and Abid Hussain its 'Treasurer'.
162. Witness identified his signatures at point A, Ex PW19/A on page no.10 against serial no.85 of Membership Register already Ex PW2/L.
163. PW-19 stated that he never resigned from the membership of the Society and signatures at point A & B (Q-
641) appearing on resignation letter dated 23.08.1988 and refund receipt dated 04.10.1988 Ex PW2/Q (page no. 17, D-18) are not his signatures.
164. He came to know through internet that his name was not reflecting in the Freeze List of the Society, and subsequent thereto he submitted his verification documents i.e. letter available at page no. 698 of D-11 Ex PW19/B alongwith his Affidavit dated 07.03.2005 Ex PW19/C (page no. 699, D-11), CBI Case No. 191/19 38 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Verification Certificate bearing his photograph and signatures attested by Assistant Engineer Ex PW19/D ( page no. 700, D-
11), attested copy of his Passport Ex PW19/E (page no. 701 of D-11) and front page of same Ex PW19/G, Form no. 60 Ex PW19/F, attested copy of Ration Card Ex PW19/H attested copy of his SBI account Pass-book Ex PW19/J before the RCS for allotment of residential plot in his favour.
165. The witness was not cross-examined by the accused persons.
166. PW-20 Smt. Prabha Khurana deposed that she never took the membership of Imamia CGHS, and after seeing the documents i.e. application dated 27.01.1988 (page no. 37 D-
27) Ex PW2/N, Affidavit dated 12.07.2003 (page 111 D-21) Ex PW20/A, signatures appearing at page no. 14 against serial no. 111 at point B Ex PW10/B of Proceeding Register (D-23) she denied the signatures appearing on the same.
167. The witness was cross-examined only on behalf of accused Shakir Hussain (A-6) and in her cross she stated that she is not aware if Society through its Secretary has filed a Civil Suit against the persons who were falsely shown as member including herself. She stated that name of Sh. Vikas Khurana is mentioned as her husband/father, but the name of her father and husband are different and not Sh.Vikas Khurana.
168. PW-21 Sh. Shadi Lal Bhandula deposed that he retired as Senior Manager from Punjab National Bank in the year 1995 ; the membership of the Imamia CGHS was never taken by him ; and after seeing the application dated 09.11.1987 (page no.
CBI Case No. 191/19 39 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) 17 D-27) Ex PW2/N-27, signatures at point A (Q-217), signatures appearing on Page no. 11 at point B against serial no. 91 of membership register (D-3) Ex PW14/A, Affidavit dated 12.07.2003 (page 91 D-21) Ex PW21/A, signatures appearing at page no. 2 against serial no. 21 at point F Ex PW10/D of Proceeding Register (D-23), he denied having signed any of the aforesaid documents.
169. The witness stated that in the proceedings register (D-24) Ex PW2/P, against his name his designation has been shown as President, however, he was neither the member of the Society nor the President. He did not know any person by the name of Sh. N.S. Khatri from RCS Office.
170. The witness was cross-examined only on behalf of accused Sh. Naveen Kaushik (A-9) wherein he admitted that he is facing trial in Durga Pooja CGHS which is pending adjudication before the Special Court, CBI, Delhi ; and he has not made any written complaint to any authority including RCS about misuse of his name as President in Imamia and thereafter deleting it from the record.
171. PW-22 Sh. Shameem Haider deposed that in the year 1983 membership of the society was taken by his father by depositing Rs. 110/- ; that his father expired in the year 1991 and thereafter his mother Smt. Anwari Begum became the member of Imamia CGHS ; that neither his mother nor his father resigned from the membership or taken back their money.
172. He stated that before the RCS regarding allotment of residential plot an application dated 11.04.2005 (page no.450 D-
CBI Case No. 191/19 40 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS)
13) ExPW22/A was moved, he identified the thumb impression of his mother on the same.
173. He further deposed that alongwith the application some other documents qua Verification of membership i.e. Affidavits Ex PW22/B, Ex PW22/C, attested copy of the Election I-card of her mother, Verification Certificate alongwith photograph, Form-60, and attested copy of receipt qua deposit of membership fee of Rs. 110/- Ex PW22/D (Colly.) were also submitted before the RCS in support of her claim as member.
174. Witness identified the thumb impression of his father available on page no. 298 (D-17) and Page no. 297 to 307 already Ex PW1/F and also on Affidavit dated 27.09.1997 page 244 of (D-17) Ex PW 22/E, and on other documents in the name of his father exhibited as Ex. PW-2/L, Ex. PW-2/N.1 & Ex PW- 6/D.
175. He also stated that Resignation letter-cum-refund Receipt Ex PW2-Q-34 bearing the thumb impression at point A (Q-681) are not the thumb impression of his father or mother.
176. The witness was cross-examined on behalf of accused Shakir Hussain (A-6) wherein he stated that accused Shakir Hussain is son of his maternal uncle and Secretary of Imamia CGHS.
177. He admitted that he had deposited the documents alongwith letter to AR RCS Office Delhi of his mother on the asking of Shakir Hussain.
178. The witness was not cross-examined by other CBI Case No. 191/19 41 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) accused persons.
179. PW-23 Sh. Sita Ram Khatri deposed that he used to run School Van for St. Xavier School, Rajpur Road, Delhi.
180. The membership of the Imamia CGHS was never taken by him and after seeing the application for membership in his name (page no.20 D-27) already Ex PW2/N-30, signatures at serial no. 94 at point C (Q-8) page no. 11 Ex PW14/A of the Membership Register already Ex PW2/L (D-3), signatures at point A (Q-1028-Q-1029) on Affidavit (page no 94 D-21) Ex PW23/A, and signatures appearing at point G on page no. 2 against serial no.40 Ex PW10/D of Proceeding Register (D-23) Ex PW7/D, stated that these documents were not signed by him.
181. Witness was cross-examined on behalf of accused Ashwani Sharma (A-9 and formal questions were put to him.
182. He was also cross-examined on behalf of accused Shakir Hussain (A-6) and stated that a Civil Suit was filed by Secretary of the Society, he appeared before the learned court and admitted his signatures at point C on the ordersheet Ex PW8/DB for making statement before the learned Civil Court in a Suit bearing no. 1436/06.
183. PW-24 Sh. Ved Parkash stated that since birth he is living in Delhi and doing the business of Stone Crusher at Sohna, Haryana.
184. The membership of the Society was never taken by him ; after seeing the application dated 15.11.1988 already Ex PW2/N-55 ( page 45, D-27), he denied his signatures at point A CBI Case No. 191/19 42 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) (Q-160).
185. He also denied his signatures on the Membership Register of Imamia already Ex PW2/L, page no.15 at Serial no.119, at point B (Q-42) (page 15 of D-3) Ex PW11/B, ; affidavit dated 12.07.2003 at point A & B (Q-978 & Q-979) ExPW24/A, and Proceeding Register (D-23) already Ex PW7/D at serial no.17 at point C (Q-270) Ex PW7/E.
186. Witness stated that since he was not the member of the Society hence there was no question of attending any meeting of the society.
187. Witness was cross-examined on behalf of accused Shakir Hussain (A-6), wherein he stated that he was not aware if Shakir Hussain had filed a Civil Suit against him ; identified his particulars available at serial no. 32 in Memo of Parties already Ex PW8/DA of Civil Suit no. 1498/08 , and stated that he never heard the name of Sh. Jai Deep Malik, Advocate or engaged him to represent him in a Civil Suit bearing no. 1436/06 Ex PW8/DB.
188. The witness was cross-examined on behalf of accused N.S. Khatri (A-3) and he admitted that he has not filed any written complaint to any authority about deletion of his name or that his particulars have been used to show him as member of the Society.
189. PW-25 Sh. Zaheer Hussain was the Promoter member of Imamia CGHS and he admitted his signatures appearing on the page no. 8 against serial no. 67 of Membership Register Ex PW2/L (D-3) at point A Ex PW25/A ; Bye-laws of CBI Case No. 191/19 43 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) the Society Ex PW1/E, his signatures at point A on page no.12 against serial no. 67 as Ex PW 25/B ; signatures at point A on page no. 334 of Intensive Enquiry Proforma Ex PW1/K filed at the time of registration of the Society and Affidavit dated 27.09.1983 (page -32, D-17) Ex PW25/C.
190. He stated that he never resigned from the Society, and denied the signatures appearing on Resignation letter-cum- Receipt already Ex PW2/Q-2 (page no.5 D-18) to be his genuine signatures.
191. In the cross-examination conducted on behalf of accused Shakir Hussain (A-6), he stated that he never attended any meeting of Imamia ; not aware who was the Secretary ; denied the signatures Ex PW12/DC appearing at page no. 2 of the Register Ex PW12/DB, and stated that the meeting of the Society held on 23.03.2005 was not attended by him.
192. PW-26 Sh. Abdul Shakoor was another Promoter member of Imamia CGHS and stated that Sh. Shakir Hussain(A-
6) was the active member who had made all the efforts to get the Society registered.
193. After seeing the application for registration of Imamia Ex PW1/J, he identified his signatures available on page no. 2 against serial no.9 Ex PW26/A of Membership Register Ex PW2/L and on affidavit dated 27.09.1983 (page no. 264 D-17) ) Ex PW26/B.
194. Witness stated that he knows only Urdu language and has no knowledge of English language. The Resignation letter is in English language, it was not tendered by him, and the CBI Case No. 191/19 44 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) signatures appearing on it are not his signatures.
195. He stated that to claim his membership Affidavit affixed with his photographs dated 05.03.2005 Ex PW26/D (page 708 D-11), Verification Certificate Ex PW26/E, Copy of Ration card marked as Mark PW26/F, Election I-card marked as Mark PW26/G, Pan Card marked as PW26/H, Passport marked as Mark PW26/J, were handed over to Shakir Hussain (A-6) at his Kishan Ganj Office for submitting the same before RCS.
196. Witness was not cross-examined by any accused despite opportunity given to them.
197. PW-27 Sh. Anwar Ali deposed that in the year 1980-1982, membership of the Society was taken by his father who expired in the year 1996, , and thereafter his mother Smt. Rafikan Begum became the member of Imamia CGHS ; that his father used to sign in Urdu language and he had seen him writing and signing ; that his father never resigned from the membership and after seeing the resignation letter-cum-refund voucher dated 07.10.1988 Ex PW27/B denied the signatures of his father appearing on the same.
198. After seeing page no.9 already Ex PW12/B of Membership Register Ex PW2/L, and affidavit dated 10.10.1983 ExPW27/A, he identified the signatures of his father on the same.
199. He stated that in the year 2005 he came to know that name of his father was not in the list of Society and accordingly visited RCS office and deposited certain documents on behalf of his mother i.e Affidavit dated 10.03.2005 bears CBI Case No. 191/19 45 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) thumb impression of her mother at point A with her photograph at point B Ex PW27/C and another Affidavit of same date bearing thumb impression of her mother at point A and the same is Ex PW27/D, Verification Certificate of her mother Ex PW27/E, Form 60 under Income Tax Act Ex PW27/E, in support of claim as member of the Society.
200. The witness was not cross-examined by other accused persons.
201. PW-28 Sh. Mazahir Hussain also a founder member of Imamia CGHS identified the affidavit dated 27.09.1983 bearing his signatures at point A & B Ex PW28/A. given in support of his membership, but denied his signatures at point A on Affidavit dated 12.07.2003 Ex PW28/B, whereby he was shown as resigned from the membership of the Society.
202. He identified his signatures on the verification documents alongwith Affidavit, attested copy of PAN card, attested copy of Election I-card, attested copy of Ration Card ; attested copy of Statement of Account, Passport etc Ex PW28/C to Ex PW28/K, given in support of his membership in the year 2005.
203. He stated that these documents were given by him to Sh. Shakir Hussain (A-6) for submitting the same before the RCS Office.
204. Witness further stated that his name is appearing in Proceeding Register Ex PW2/K at serial no.28 on page no.1 of the Proceeding Ex PW6/B in respect of meeting attended by Promoter members and identified the handwriting and signatures CBI Case No. 191/19 46 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) of Sh. Shakir Hussain (A-6) on Register Ex PW2/K with entry at Ex PW2/K-2.
205. The witness identified his signatures appearing at different places on the Proceeding Register i.e. Ex PW2/K-4, Ex PW2/K-5, Ex PW2/K-6, Ex PW2/K-7, Ex PW2/K-8, Ex PW2/K-16, and after seeing the Membership Register Ex PW2/L stated that his name is mentioned at Sl. no. 13 and identified his signatures on its page Ex PW28/L.
206. He further stated that all the documents, correspondence files and records including membership register of the Society remained in possession of Sh. Shakir Hussain (A-
6), 'Secretary'.
207. Witness was cross-examined on behalf of accused Sh. Shakir Hussain (A-6), and wherein he admitted that meeting dated 05.03.2005 Ex PW2/DC bearing his signatures was attended by him alongwith Secretary, President and other members of the Society.
208. He stated that in the said meeting, it was decided that some members who had not received any letter for deposit of membership proof would meet AR of the RCS for expressing their displeasure over this issue, and Sh. Shakir Hussain would lodged a written complaint with SHO PS Preet Vihar complaining that some documents of the Society have been taken away by Sh. Mayank Goswami, and /or that list of 87 original members of the Society has been given to the RCS Office.
209. Witness after seeing the Minutes of Meeting dated 23.03.2005 Ex PW12/DC stated that it bears his signatures and CBI Case No. 191/19 47 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) admitted the suggestion that it was informed that Sh. Shakir Hussain has filed a Criminal Complaint against Sh. Mayank Goswami and others who had misused the records of the Society.
210. Witness was not cross-examined by other accused persons.
211. PW-29 Sh. Smt. Tatheer Fatima deposed that she became member of Imamia CGHS when it was formed comprising of only Muslim Community.
212. After seeing the page no.7 of Membership Register already Ex PW2/L against entry no. 54 and on Affidavit dated 27.09.1983 at point A, she identified her signatures appearing on the said documents as Ex PW29/A & Ex W29/C.
213. She denied her signatures appearing on Affidavit Ex PW29/B at point A & B (Q-1072 & Q-1073) D-21 and also on Resignation letter-cum Cash-Receipt Ex PW29/H points A & B (Q-417 & Q-418).
214. She stated that a letter addressed to RCS Ex. PW29/D alongwith Verification documents, Affidavit dated 16.02.2005 Ex PW29/E ; Verification Certificate alongwith her photograph attested by gazetted officer Ex PW29/F ; Form-60 under Income Tax Act Ex PW29/G bears her signatures at Point A.
215. During cross-examination conducted on behalf of Accused Shakir Hussain (A-6) she stated that she knows accused Sh. Shakir Hussain but was not aware whether the Verification documents Ex PW29/D were deposited at the advice of accused CBI Case No. 191/19 48 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Sh. Shakir Hussain, and/or if the signatures of her husband are appearing on the minutes of meeting dated 23.03.2005 Ex PW12/DB or her husband had attended any meeting of the Society on her behalf and/or through whom or where the documents Ex PW29/D to Ex PW29/G were deposited on her behalf.
216. She denied the suggestion that the meeting 23.03.2005 was attended by her husband and the President, General Secretary of Society had appealed to its members to deposit the Verification documents of their membership before the RCS.
217. The witness was not cross-examined by other accused persons.
218. PW-30 Sh. Vipin Jindal deposed that he never became member of any Society ; had approached his friends for becoming member and had given Rs.1000/- to 2-3 persons for membership in a Group Housing Society ; was not knowing accused Anil Kumar (A-7) and after drawing his attention towards accused Anil Kumar he denied his acquaintance with him.
219. The witness after seeing the documents denied his signatures appearing at point A (Q-186) Ex PW2/N-42 i.e. Application for membership ; at point A (Q-23) Ex PW30/A Register of Membership already Ex PW2/L(D-3 ; at page no. 2 against serial no. 29 point H ( Q-284) Ex PW10/D of Proceeding Register already Ex PW7/D, and at point A & B ( Q-1004 & Q-1005) Affidavit dated 12.07.2003 Ex PW30/B. CBI Case No. 191/19 49 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS)
220. Witness stated that pursuant to a correspondence received from the office of RCS Office, he had visited and deposited a letter addressed to RCS ExPW30/C, enclosed with certain documents i.e. Affidavit Ex PW30/D ; Verification Certificate Ex PW30/E ; Copy of PAN Card Ex PW30/F ; copy of Passbook Ex PW30/G and copy of Identify card duly attested Ex PW30/H under his signatures, presuming that the money handed over to different persons resulted in him becoming member of Society in question i.e. Immamia CGHS.
221. The witness was declared hostile and was cross examined by the learned PP for the CBI.
222. Only accused Shakir Hussain cross-examined him thereafter, and during his cross-examination he stated that he is not aware abut the Civil Suit instituted by the Society, or proceeded as ex-parte vide order Ex PW8/DB ; and after seeing the Memo of parties Ex PW8/DA stated that the address mentioned in it is not his residential address.
223. Witness was not cross-examined by other accused persons.
224. PW-31 Smt. Sayeeda Begum became member about 20-25 years back and deposited Rs.110/- as membership fees.
225. After seeing the page no.3 Ex PW2/N-1, she identified her signatures appearing against serial no.12 of membership register Ex PW2/L, and also on letter Ex PW31/A addressed to AR enclosed with certain documents like affidavit Ex PW31/B ; Verification certificate having her photograph Ex CBI Case No. 191/19 50 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) PW31/C ; copy of identify card Ex PW31/D ; copy of Ration Card Ex PW31/E ; copy of passport Ex PW31/F ; Form No. 60 Ex PW31/G and Election I card Ex PW31/H.
226. She admitted her signatures on affidavit dated 27.09.1983 Ex PW31/K but denied her signatures appearing on another Affidavit dated 12.07.2003 Ex PW31/J and also on Proceeding Register in respect of meeting held on 19.10.2003.
227. She specifically deposed that she never resigned from the membership of the Society.
228. Witness was cross-examined only on behalf of accused Ashwani Sharma (A-8) and other accused persons did not avail the opportunity to cross-examine her.
229. PW-32 Smt. Mumtaz Bano founder member deposed that she became member of Imamia about 30 years back and her brother had deposited membership fee of Society.
230. That after seeing the application form Ex PW32/A, page no.9 of Ex PW12/B, she identified her thumb impression appearing against serial no.76 of membership register Ex PW2/L, and also on letter dated 18.02.2005 Ex PW32/B addressed to the AR enclosed with certain documents like Affidavit dated 17.02.2005 Ex PW32/C ; Verification certificate having her photograph Ex PW32/D ; copy of identity card Ex PW32/E ; copy of Ration Card Ex PW32/F ; copy of Passport Ex PW32/G and Form No. 60 Ex PW32/H.
231. She admitted her thumb impression at point A (Q- 1048 & Q-1049) on Affidavit dated 12.07.2003 Ex PW32/J, and CBI Case No. 191/19 51 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) specifically deposed that she has never resigned from the membership of the Society nor participated in the meeting of Imamia.
232. The witness was declared hostile and was cross examined by the learned PP for the CBI.
233. In the cross-examination conducted on behalf of accused Ashwani Sharma (A-8) she stated that she is still member of the society.
234. Witness was not cross-examined by other accused persons despite opportunity granted to them.
235. PW-33 Smt. Sultan Bano another founder member deposed that she became member of Imamia about 25-30 years ago.
236. Witness after seeing the application for registration of Society already Ex PW1/J identified her thumb impression against serial no.35 at point E.
- She stated that she never resigned from the membership of the Society and stated that thumb impression appearing on Resignation letter already Ex PW2/Q-6 at point A (Q-623) is not her thumb impression.
237. After seeing the page no.5 Ex PW33/A, she identified her thumb impression appearing against serial no.35 of membership register Ex PW2/L (D-3), and also on letter dated 18.03.2005 Ex PW33/B addressed to the AR enclosed with certain documents like Affidavit dated 11.03.2005 Ex PW33/C ; Verification certificate having her photograph Ex PW33/D ;
CBI Case No. 191/19 52 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) copy of Passport Ex PW33/E ; copy of Voter Identity card Ex PW33/F and copy of Form No. 60 Ex PW33/G.
238. She was cross-examined on behalf of accused Shakir Hussain (A-6) and wherein she admitted thatt she deposited her documents before RCS in the year 2005.
239. Witness was not cross-examined by other accused persons despite opportunity granted to them.
240. PW-34 Sh. Wahid Hussain deposed that in the year 1983 the membership of the Society was taken by his wife Smt. Khushnuma.
241. After seeing the page no.4 against serial no.27, he failed to identify the thumb impression of his wife appearing on Membership register already Ex PW2/L and on affidavit Ex PW34/C.
242. He identified her thumb impression on Affidavit (D- 17 page no. 189-192A) Ex PW34/A (Colly) and on Verification Certificate Ex PW34/B, and stated that she never resigned from the Membership of Imamia, but was not able to confirm or deny her thumb impression appearing at point A (A-19) on Ex PW2/Q-3.
243. In the cross-examination conducted on behalf of accused Sh. Shakir Hussain (A-6) he admitted that he attended the meetings of the Society on behalf of his wife ; the meeting held on 23.03.2005 was attended by him and in the said meeting it was resolved that communication be addressed to RCS that the names of some members have been illegally deleted from the list CBI Case No. 191/19 53 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) of membership ; and Shakir Hussain (A-6) had told them to submit fresh documents claiming their membership before the RCS, and he identified his signatures on the meeting documents Ex PW12/DB.
244. He further stated that at that time Shakir Hussain (A-
6) also informed that he had made a complaint to PS Preet Vihar in respect of taking away the Society documents by Mr. Goswami.
245. PW-35 Smt. Nazma Banoo another Promoter member deposed that in the year 1983 she became member of Imamia.
246. After seeing the page no.2 Ex PW26/A of membership register Ex PW2/L (D-3), she identified her signatures appearing against her name at serial no.4.
247. She stated that Affidavit dated 12.07.2003 (part of D-21) Ex PW35/A was not signed or given by her.
248. She identified her signatures on Affidavit dated 27.09.1983 ExPW35/B and also on letter dated 18.02.2005 Ex PW35/C addressed to the AR enclosed with certain documents i.e. Verification certificate having her photograph Ex PW35/D ; Affidavit Ex PW35/E ; copy of her passport Ex PW33/F and copy of PAN card Ex PW33/G
249. The witness was cross-examined only on behalf of accused Sh. Naveen Kaushik (A-9).
250. PW-36 Sh.Tarlochan Singh deposed that membership of the Society was not taken by him ; and after CBI Case No. 191/19 54 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) seeing the application ExPW36/A (D-27), denied his handwriting and signatures appearing on it at point A (Q-193) & (Q-194) and also on Membership Register page no.13 already Ex PW30/A at point B (Q-19), Affidavit dated 12.07.2003 (Q-1012 & Q-1013) Ex PW36/B, and signatures appearing at page no. 1 against serial no.102 at point E on Ex PW7/E of Proceeding Register (D-23).
251. In the cross-examination conducted on behalf of accused Shakir Hussain (A-6) witness admitted that a Civil Suit was filed by the Society and he was cited as defendant no. 15, his statement was recorded, and he identified his signatures on the certified copy of the order dated 22.09.2007 Ex PW36/DA.
252. PW-37 Sh.Aashish Dhawan also denied having taken the membership of the Society ; and after seeing the application already Ex PW2/N (D-27), denied his handwriting and signatures appearing on it at point A (Q-201) & (Q-202) ; and also on Membership Register page no. 12 already Ex PW7/C at point A (Q-14) (D-3) ; Affidavit dated 12.07.2003 (Q-1020 & Q-1021) Ex PW37/A ; and signatures (Q-272) appearing at point J on page no.2 against serial no.18 in respect of membership no. 98 Ex PW10/D of Proceeding Register (D-23).
253. In the cross-examination conducted on behalf of accused Shakir Hussain (A-6) witness stated that he was not aware whether a Civil Suit was filed by the Society or he was cited as defendant no.11 in the said Suit, or Sh. Jaideep Malik was appointed as their advocate or that he was proceeded ex- parte vide order of the court dated 20.03.2009.
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254. PW-38 Sh. Sachin Nagpal stated that membership of the Society was not taken by him, and after seeing the application already Ex PW2/N-65 (D-27) denied his handwriting and signatures appearing on it at point A (Q-140) & (Q-141), and also on Membership Register page no.16 already Ex PW8/B at point C (Q-54) (D-3), Affidavit dated 12.07.2003 (Q-958 & Q-
959) Ex PW38/A, and signatures (Q-290) appearing at point K on page no.2 against serial no.35 in respect of membership no.129 Ex PW10/D of Proceeding Register (D-23), and no communication was received by him.
255. In the cross-examination conducted on behalf of accused Shakir Hussain (A-6) witness also denied having knowledge about a Civil Suit filed by the Society, if any, or if he was cited as defendant no.42 in the said Suit, or Sh. Jaideep Malik was appointed as their advocate and/or that he was proceeded ex-parte vide order of the court dated 20.03.2009 Ex PW36/DA.
256. PW-39 Sh. Haripal also stated that membership of the Society was not taken by him and after seeing the application already ExPW2/N-37 (D-27) denied his handwriting and signatures appearing on it at point A (Q-195) & (Q-196), and also on Membership Register page no.12 already Ex PW7/C at point B (Q-17) (D-3), and Affidavit dated 12.07.2003 (Q-1014 & Q-1015) Ex PW39/A
257. In the cross-examination conducted on behalf of accused Shakir Hussain (A-6) witness stated that he was not aware whether a Civil Suit was filed by the Society and he was CBI Case No. 191/19 56 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) cited as defendant no.14 in the said Suit, or Sh. Jaideep Malik was appointed as their advocate and/or he was proceeded ex- parte vide order of the court dated 24.07.2009.
258. Witness was not cross-examined by other accused persons.
259. PW-40 Sh. Ramesh Chandra also denied having taken the membership of the Imamia Apartment CGHS Society, and admitted the membership of Indraprastha Society in which he was having a residential Flat.
260. Witness after seeing the application already ExPW2/N-39 (D-27) denied his signatures appearing on it at point A (Q-192), and also on Membership Register page no.13 already Ex PW30/A at point C (Q-20) (D-3) against his name at serial no. 103, and Affidavit dated 12.07.2003 (Q-1010 & Q- 1011) Ex PW40/A.
261. He further stated that he never participated in any proceedings or Elections of Imamia CGHS, and after seeing the page no.1 of Proceeding Register already Ex PW7/E denied the signatures appearing at point F (Q-268).
262. In the cross-examination conducted on behalf of accused Shakir Hussain (A-6) witness admitted that a Civil Suit was filed by the Secretary of the Society wherein he was cited as defendant no.16 in the said Suit, and he had appeared before the court where his statement was recorded, and he identified his signatures on the same as Ex PW15/DA.
263. Accused Ashwani Sharma (A-8) cross-examined the CBI Case No. 191/19 57 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) witness wherein he stated that he was called by the CBI officials and his statement was recorded, but was not able to recollect whether his specimen signatures were taken by the CBI or not. He had not made any complaint to any authority.
264. PW-41 Sh. Inder Singh Pimoli deposed that he retired from the post of Dy. Controller of Accounts, Principal Account Office, A Block Vikas Bhawan, New Delhi, and Sh. C.M. Sharma was the Controller of Accounts at that time ; that he had worked with him and had seen him writing and signing in official capacity.
265. He identified the signatures of Sh. C.M. Sharma on all the pages of the Sanction order dated 31.10.2006 Ex PW41/A in respect of prosecution of accused Sh.Narender Kumar (A-4) at Point A.
266. Witness was cross-examined by accused Narender Kumar (A-4) where in he admitted that he has not dealt with the file pertaining to Sanction of accused Narender Kumar(A-4) and the file was used to be routed through him to higher authorities.
267. PW-42 Sh. S.C. Joshi deposed that in the official capacity he alongwith Sh.A.N.Singh, Sr. Assistance of his office, joined the Search Proceedings with the CBI team at house no. 983, Mohalla Kishanganj, Teliwara, Delhi belonging to accused Shakir Hussain (A-6) . He identified his signatures at point A and signatures of Sh. A.N. Singh at point B on Search List Ex PW42/A ( D-41).
268. In the cross-examination witness showed his inability to recognize accused Sh. Shakir Hussain (A-6), or to CBI Case No. 191/19 58 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) state whether the copy of the complaint made to the Police or to the Registrar of Societies, if any, were shown by the son of accused Shakir Hussain (A-6) to the CBI team during search proceedings in terms of Serial no. 9 of the Search List or any other fact so mentioned therein.
269. PW-43 Smt Afzal Begum deposed that her husband Sh. Mehfooz Ali became member of Imamia ; he expired about 17 years back, and thereafter as legal heir she was inducted as member of the said Society.
270. After seeing the page no. 6 of Membership register, she identified the signatures of her husband at point A against serial no. 50 on Ex PW43/A (D-3), and also on Affidavit dated 27.09.1983 at point A Ex PW43/B (D-17).
271. She denied the signatures of her husband appearing on another Affidavit dated 12.07.2003 at point A (Q-1078 & Q- 1079) Ex PW43/C (D-21).
272. She identified her signatures at point A on a letter dated 18.02.2005 written to the RCS Ex PW43/D, and stated that certain documents i.e. Verification Certificate Ex PW43/E, Affidavit dated 17.02.2005 Ex PW43/F, Form 60 Ex PW43/G, Death Certificate of her husband marked as Mark PW43/H, copy of Ration Card marked as PW43/J, election I card marked as PW43/K and passbook marked as Mark PW43/L were enclosed with the said letter, and identified her signatures affixed on the said documents.
273. In the cross-examination on behalf of Sh. Shakir Hussain (A-6), she stated that documents to the RCS office were CBI Case No. 191/19 59 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) sent through accused Shakir Hussain along-with documents of other members of the Society ; and she admitted that a police report was lodged regarding forgery of the documents by Shakir Hussan and other office bearers of the Society.
274. PW-44 Smt. Shamim Bano deposed that she became member of Imamia CGHS.
275. She identified her thumb impression after seeing the page no.10 of Membership Register against entry no. 87 Ex PW19/A where her name is appearing and on Affidavit dated 21.03.2005 Ex PW44/A having her photograph at points A.
276. She identified her signatures appearing at point A and her photograph at point B on Verification Certificate Ex PW44/C ; photocopy of her Ration Card Mark PW 44/C ; Form 60 Ex PW44/D ;Election I card marked as Mark PW44/E and one more affidavit dated 21.03.2005 Ex PW44/F
277. She stated that she never resigned from the membership of the Society and thumb impression on Resignation Letter-cum-Refund-Voucher at point A & B (Q-697) Ex PW2/Q- 42 are not her thumb impression, and she never joined any meeting conducted by the Society.
278. Witness was not cross-examined by any accused despite opportunity.
279. PW-45 Ms. Shehnaz Parveen stated that she became member of Imamia in 1985, and after seeing the page no. 10 against serial no. 81 of membership register, she identified her signatures at point C on Ex PW19/A, and also on page no. 81 CBI Case No. 191/19 60 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) at point A of membership application marked as PW45/A.
280. She stated that letter dated 17.02.2005 Ex PW45/B written to RCS Office bears her signatures, and alongwith it she had annexed certain documents i.e. Verification Certificate Ex PW45/C, Affidavit dated 16.02.2005 bearing her signatures at point A, and photograph at point B Ex PW45/D, copy of her Election I card Ex PW45/E, copy of passport marked as Ex PW45/F and copy of PAN card Ex PW45/G.
281. She stated that she never resigned from Imamia and denied her signatures on the Resignation letter dated 19.07.1987 ExPW2/Q-31 .
282. Witness was cross-examined by accused Shakir Hussain (A-6) and accused Ashwani Sharma (A-8).
283. PW-46 Sh. Sultan Ahmed deposed that in the year 1983, on the advice of his father, he became member of Imamia CGHS, and deposited Rs.1000/- as membership fee ; signed application form alongwith affidavit at the office of Society at 983, Kishan Ganj, Delhi and attended only one meeting of the Society.
284. After seeing the affidavit dated 27.09.1983 Ex PW46/A and list of Promoter members already Ex PW1/F, Ex PW1/G & Ex PW1/H where his name is reflected at serial no. 71 at point A , he identified his signatures on the same.
285. Witness stated that he never resigned from the membership of the said Society nor participated in the Election nor in the meeting of members after 1983.
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286. After seeing his name at serial no.3 on the minutes of the meeting dated 04.09.2003 Ex PW7/D, he denied having attended the said meeting ; and was not aware whether any plot of land was allotted to the Society. But stated that no plot was allotted to him by the Society.
287. During his cross-examination by accused Shakir Hussain (A-6), he stated that one GBM was held at his residence on 23.03.2005, which was attended by him, and minutes of the meetings already Ex PW12/DC bears his signatures at point X against his name at serial no. 15.
288. Witness was also cross-examined by accused Ashwani Sharma (A-8), wherein he admitted that the meeting dated 23.03.2005 was convened by President Sh. Tehseen Haider and Secretary Sh. Shakir Hussain regarding some discrepancy in the names of the members of the Society and around 40 members of the Society had attended the said meeting.
289. PW-47 Sh. V.K. Sangal was the Asstt. Engineer in MCD and he joined the investigation of the case, visited Tihar Jail where specimen handwriting and signatures of two accused persons namely Sh. Ashwani Sharma (A-8) on 55 pages (S-239 to S-293) D-31 Ex PW47/A and Sh. Naveen (A-9) on 236 pages (S-294 to S-529) D-32 Ex PW47/B were obtained in his presence.
290. Witness was cross-examined by accused Ashwani Sharma (A-8) and accused P.K. Thirwani (A-10) only, which is discussed under analysis part.
291. PW-48 Sh. A.N. Singh deposed on the similar lines CBI Case No. 191/19 62 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) as deposed by PW-42 Sh. S.C. Joshi, who was also the member of the Search team.
292. PW-49 Sh.Rakesh Bhatnagar stated that he was posted as Joint Registrar from May, 2002 to December, 2003 and Sh. Narain Diwakar was the Registrar & Sh. Ramesh Chandra was Asstt. Registrar during that period.
293. He identified the signatures of Sh. Ramesh Chandra AR at point X-1 to X-7, Z-1, on Ex PW49/A, Ex PW49/B, Ex PW49/C,Ex PW49/D,Ex PW49/E, Ex PW49/F, Ex PW49/G and Ex PW49/K and Signatures of Sh. Narain Diwakar at point Y-1 to Y-3 on Ex PW49/H to Ex PW49/I and also at point Z-2 Ex PW49/K. (Noting(s) file of RCS D-15).
294. The witness also identified the signatures of Sh. P.K. Thirwai at point A-1 and A-2 on audit report Ex PW49/L and of accused N.S. Khatri on Election report Ex PW49/M & Proceedings of Election dated 04.09.2003 Ex PW7/E.
295. The witness was cross-examined by the accused persons.
296. PW-50 Sh. Virender Singh Verma deposed that he is working as Assistant in the Group Housing Section of DDA.
297. He identified the file Ex PW50/A dealt by him containing the correspondences exchanged between DDA and the Societies and the letter dated 07.10.2003 Ex PW50/B addressed to Dy. Director, DDA by AR (Policy) RCS, Delhi, wherein the name of Imamia CGHS was included in the enclosed list of 20 Group Housing Societies.
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298. He further stated that vide letter dated 03.11.2003 Ex PW50/C Society was given option for allotment of the land at Narela, Dwarka, Dhir Pur and Rohini, and in response to same Sh. Anil as the 'Secretary' of the Society vide letter dated 10.11.2003 Ex PW50/D and again vide letter dated 13.12.2003 Ex PW50/E, submitted the preferences for allotment of land to the Society.
299. The witness was cross-examined by the accused persons. His testimony is more or less based upon the documents which are part of official records.
300. PW-51 Inspector L.Hangshing deposed that he conducted the preliminary enquiry of the present case and during investigation seized records related to this case and exhibited the same vide Ex PW51/A to ExPW51/L.
301. The witness was cross-examined by accused Anil Kumar only.
302. PW-52 Sh. Sujay Saha Government Examiner deposed that the documents related to this case were received in the office of CFSL, Kolkata on three different dates vide forwarding letter of CBI on 30.08.2006 Ex PW52/A ; that after assignment of the same to him, he examined the documents enclosed with the said letter and handed over the detailed opinion Ex PW 52/B to GEQD, Kolkata who forwarded the same to SP, CBI, New Delhi vide his letter dated 10.10.2006.
303. He stated that the documents were also independently examined by another expert Mr. V.G.S. Bhatnagar, he identified his signatures on each page of opinion and CBI Case No. 191/19 64 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) forwarding letter of GEQD dated 10.10.2006 Ex PW52/C.
304. Witness also placed on record the reasons for opinion prepared by him as Ex PW52/D bearing his signatures at point A during his examination in Court.
305. In the cross-examination, PW-52 stated that various instruments such as hand magnifiers, Stereo microscope and spectral comparator etc were used for examining the documents.
306. He admitted that he had not asked the IO to furnish the specimen/admitted signatures of the concerned persons of the contemporaneous period as that of the questioned signatures and during examination he considered the natural variations in the writing/signatures.
307. He admitted in the cross-examination that he has not mentioned about the "reasons for opinion" in his report Ex PW52/B, nor has he annexed any Certification under Section 65-B of the Evidence Act along-with "reasons for opinion"
308. He also stated that separate "reasons for opinion"
was prepared by Mr. Bhatnagar lateron and they are in the concerned file of the department.
309. He denied the suggestion that the report prepared by him is not a valid report as he is not an expert witness on the subject, and also denied that the report Ex PW52/B and Ex PW52/D are not based on scientific analysis and has been given only on the asking of CBI.
310. PW-53 Sh. N.R. Thakur deposed that in the month of January, 2006 he was posted as Inspector ACU Branch,CBI ;
CBI Case No. 191/19 65 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) that the search warrant in respect of accused Shakir Hussain was entrusted to him, and he alongwith team members and independent witnesses Sh. S.C. Joshi and Sh. A.N. Singh visited the residence of accused ; that accused was not there as he had gone for HAJ Pilgrimage : his house was searched in the presence of his two sons namely Natek and Amir and 11 documents which are mentioned in the list already Ex PW42/A were seized.
311. He further stated that in the aforesaid search five files Ex PW48/B, Ex PW48/C, Ex PW48/D, ExPW48/E & Ex PW53/A besides one receipt book Ex PW48/A (D-4 to D-9) were seized and deposited in the malkahana. He also stated that the list was signed by SI G.K. Sagar at point E and by SI V. Chetri at point F.
312. The witness was cross-examined and formal questions were put to him.
313. PW-54 Sh. Yoginder Kumar deposed that in the month of August 2006, he was posted as Ad-hoc Stenographer in ACU Branch, CBI, and he was summoned by the CBI Office where specimen signatures of accused named Anil Kumar (S-530 to S-537) Ex PW54/A (Colly) were obtained in his presence and the said sheets were also signed by him as a witness.
314. The witness was cross-examined on behalf of the accused persons.
315. PW-55 Sh. Virender Gulati deposed that in the Year 2006, he was posted as UDC in the office of Executive Engineer, and in the month of July he visited CBI office on the CBI Case No. 191/19 66 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) directions of his HOD and in his presence specimen signatures of accused named Naveen Kaushik (S-1 to S-238) Ex PW55/A (Colly) were obtained and he also signed the same as a witness.
316. He further stated that again on 22.08.2006 in his presence specimen signatures of accused Ashwani Sharma (S- 538 to S-851) Ex PW55/B (Colly) were obtained and the specimen sheets were also signed by him as a witness.
317. The witness was cross-examined accordingly.
318. PW-56 Sh. M.K. Shukla deposed that in the month of January, 2006 he was posted as Investigating Inspector in Railway Board, Ministry of Railway ; that on 05.01.2006 he visited CBI office on the directions of his senior officers and he alongwith the team of CBI officials reached at the Flat of Sh. Mayank Goswami i.e. Janki Apartments, Sector-22, Dwarka for conducting the Search of his house ; that certain documents were seized and Search List was prepared Ex PW3/DB bearing his signatures at point X.
319. Despite opportunity witness was not cross examined.
320. PW-57 Sh. C.M. Sharma deposed that in the month of October, 2006, he was posted as Controller of Accounts, Govt of NCT of Delhi, and after perusing the charge sheet and other relevant documents forwarded by the CBI granted Sanction for prosecution of accused Narender Kumar vide order dated 31.10.2006 Ex PW41/A bearing his signatures at point A.
321. The witness was cross-examined on behalf of accused Narender Kumar.
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322. PW-58 Sh. Rakesh Kumar MAT in DDA deposed that in the year 2006 on the directions of his seniors, he alongwith his colleague Sh. Dharambir Singh reached CBI office, and from there he alongwith two CBI officials & one driver reached Delhi Government Flats at Mall Road ; that house search was conducted and certain copies of documents were seized from the said flat and the search list of seized documents Ex PW58/A was prepared accordingly.
323. The witness was cross-examined accordingly.
324. PW-59 Sh. R.K. Sangwan deposed that in the year 2006, he was posted as Inspector CBI,ACU-VIII/AC-III, New Delhi, and after registration of the FIR in the present case, it was assigned to him by the then SP Sh. K.C.Joshi vide his endorsement Ex PW59/A on the FIR Ex PW59/B for further investigation.
325. That the documents seized by Insp. L.Hangshing (PW-51) during preliminary enquiry of the present case were handed over to him vide handing over memo dated 12.01.2006 Ex PW51/L ; that he only conducted the search at the residence of accused Narender Kumar (A-4) and thereafter the investigation was assigned to Insp. M.C.R. Mukund (PW-61).
326. Witness was not cross-examined by any accused.
327. PW-60 Sh. Sunil Kumar Aggarwal deposed that in the month of October/November, 2006, he was posted as Conservator of Forest in NCT of Delhi and granted Sanction for prosecution of accused N.S. Khatri vide his order Ex PW60/A bearing his signatures at point A. CBI Case No. 191/19 68 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS)
328. The witness was cross-examined by the accused accordingly.
329. PW-61 Sh. M.C.R. Mukund deposed that after the registration of the FIR, investigation was entrusted to Insp. R.K.Sangwan and thereafter to him by Sh. K.C. Joshi, the then S.P.
330. That he collected the various documents seized by the initial IO including search list, entire case file from Malkhana and also from DDA, RCS Office and other departments.
331. He stated that vide correspondence between the Addl. Director and DIG seven files and four registers were marked to him.
332. That the specimen signatures of accused Naveen Kaushik (A-9), Ashwani Sharma (A-8) and Sh. Anil Kumar (A-7) were obtained and sent to the GEQD for expert opinion ; he had obtained Sanction for prosecution of accused Sh. Narender Kumar (A-4), Sh. Rakesh Kumar (A-5), Sh. P.K. Thirwani (A-
10) and Sh. N.S. Khatri (A-3) ; Statement of accused persons and witnesses were recorded.
333. That after completion of the investigation charge sheet was filed by the IO alongwith the several documents which were seized and exhibited on record during evidence by him from Ex PW61/A to Ex PW61/3.
334. The witness was cross-examined by the accused persons at length and discussed lateron where-ever necessary.
335. PW-62 Smt. Naini Jayaseelan deposed that in the CBI Case No. 191/19 69 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) year, 2006, she was posted as Secretary (I&FC) Development Commissioner, Govt of NCT of Delhi and granted Sanction to prosecute accused Rakesh Kumar vide order dated 06.11.2006 Ex PW62/A bearing her signatures at point A.
336. The witness was cross-examined on behalf of accused Rakesh Kumar only.
337. During the course of recording the evidence, Prosecution witnesses namely Smt. Akbari Begum, Smt. Nafiz Begum, Sh Ajit Singh, Sh. Sher Bahadur Singh and Sh.Dharambir Singh were dropped by the prosecution considering their old age and other health related issues.
338. After closure of the prosecution evidence separate brief of Statement of each accused was recorded u/s 313 Cr.P.C accordingly.
339. Accused Narain Diwakar (A-1) in his statement recorded u/s 313 Cr.P.C denied the case of prosecution in trms of the allegations levelled against him and stated that he is innocent and has been falsely implicated by the CBI.
340. That the documents seized during investigation by the IO are not in his knowledge ; that house search of co-accused persons, taking of specimen handwriting & signatures for analysis and Sanction for prosecution of accused persons is a matter of record.
341. That as per Rule 105 of the Delhi Cooperative Rules, 1973, there is a provision for the deemed termination of the Winding up proceedings (3 years) after which Registrar is CBI Case No. 191/19 70 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) bound to cancel the winding up orders by passing appropriate order.
342. That the order of cancelling the Winding up was passed by him as per Rules and considering the outcome of the then recent judgment delivered by the Double Bench of Hon'ble Delhi High Court in Civil Writ Petition no.1767/1986 titled as Vikas Cooperative Group Housing Society Ltd Vs. RCS decided on 21.11.1986.
343. That the Winding up order of concerned Society had nothing to do with the availability of the verification of the records, and he had performed his duties in absolute good faith by complying with all the necessary steps as provided under the law.
344. That the CBI has not taken Sanction to prosecute him u/s 197 Cr.P.C as well as Section 19 of the P.C. Act, which are two separate sanctions operate in distinct mechanism and were mandatory even for a retired public servants.
345. He stated that none of the prosecution witness has deposed against him and he preferred to lead defence evidence.
346. Accused Ramesh Chandra (A-2) had expired during trial of the case, and the proceedings stood abated against him.
347. Accused N.S. Khatri (A-3) in his statement denied the allegations of prosecution and stated that he did not know any thing ; has no personal knowledge about the case of the prosecution ; was never associated with the affairs of the Society CBI Case No. 191/19 71 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) and is not aware about whom the Sanction for prosecution was obtained by the CBI.
348. He stated that nothing in the GEQD report has come against him.
349. He further stated that investigation is unfair, biased and perfunctory ; he is innocent and has been falsely implicated in the present case ; no witness has deposed against him ; has not done any illegal act ; nothing incriminating has come on record against him, and preferred to lead defence evidence.
350. Accused Narender Kumar (A-4) denied the case of prosecution and stated that he has no knowledge ; has been falsely implicated in this case without any evidence of criminality against him ; no witness has spoken adversely against him except the IO ; no sanction for prosecution for IPC offences has been taken u/s 197 Cr.P.C and Sanction under P.C.Act is not proper and valid.
351. He further stated that inspection report under Section 54 of the DCS Act was submitted by him in discharge of his official duties and no RCS official has pointed out any deficiency/irregularity in his report ; nor there is any wrongful gain caused to anyone in this case and no complaint was made against him by any one.
352. He preferred to lead defence evidence.
353. Accused Rakesh Kumar (A-5) stated that it is a false case against him and he discharged his official duties in routine manner under DCS Act & Rules.
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354. He stated that PW-62 was not the competent person to grant sanction vide order dated 06.11.2006 for the alleged offences committed in the year 2003-2004, and the same has been granted without application of mind to the facts of the case.
355. He stated that no witness of the prosecution has deposed against him ; there is no evidence of wrongful loss caused to any one ; that the uploading of list of members of the Society and the advertisement published for seeking objection from the public in the newspaper by the office of RCS shows their transparency towards the official duties.
356. That there is no evidence on record to establish that any demand was made and subsequently recovery was effected by the CBI ; no departmental action qua irregularities of duties has been taken ; the sanction obtained by the department is not valid, and no land was allotted by the DDA to the Society.
357. He did not prefer to lead defence evidence.
358. Accused Shakir Hussain (A-6) denied the case of prosecution and stated that he is innocent and has been falsely implicated in the present case he being the 'Secretary' of the said Society ; the prosecution witness are interested witnesses ; and the investigation is totally misleading and biased.
359. He stated that Sh. Shamim Haider 'Vice President' ; Sh. Mohd. Tehseem Haider 'President' ; Sh. Mohd. Abid 'Treasurer' ; Sh. Abdul Hamid and including him, amongst others, were the promoter founder members of the Society.
360. He stated that Sh. Mohd. Tehseen Haider 'President' CBI Case No. 191/19 73 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) and Mohd. Abid member of the Society alongwith Office bearers, promoter members and other members of the Society attended the meetings on 22.02.2005 and 05.03.2005 at the new address of the Society i.e. C-16, Brij Puri and signed the said proceedings accordingly.
361. He stated that Sh. Anil Kumar Gupta (A-7) was falsely/wrongly inducted as member in the Society by the persons who manipulated the records of the Society for the purpose of its revival, and Sh. Mayank Goswami (PW-3), Sh. Anil Kumar Gupta and Sh. Brij Mohan Khurana were never authorized by them to induct new members in the said Society.
362. He stated that as per record maintained by him being the Secretary of the Society, Sh. Davinder Arora, Sh. Dharampal, Sh. Jagit Kaur,Sh. Madan Lal, Sh. Manoj Kumar , Sh. Prabha Khurana, Sh. Shadi Lal Bhandula, Sh. Sita Ram Khatri, Sh. Ved Prakash, Sh. Vipin Jindal, Sh. Tarlochan Singh, Sh. Aashish Dhawan, Sh. Sachin Nagpal, Sh.Hari Pal and Sh. Ramesh Chandra were not the members of the Society or at any occasion membership of the Society was taken by them.
363. That Police complaint was made by him in this regard and Civil suit was also filed against them in which they did not appear and were proceeded ex-parte.
364. He further stated that he has no knowledge about the Sanction of prosecution obtained by the CBI against the RCS officials, taking of specimen signatures of co-accused persons ; no Search list was handed over to him at the time of Search conducted at his house as he was on Haj Pilgrimage at that time ;
CBI Case No. 191/19 74 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) and the GEQD report is false and fabricated prepared at the instance of the IO.
365. Accused preferred not to lead defence evidence.
366. Accused Anil Kumar (A-7) stated that he has been falsely implicated by the CBI ; he never became the member of the Society ; not concerned in any manner with the said CGHS and did not know any person by the name of Mr. Shakir Hussain (A-6), Ashwani Sharma (A-8) or Sh. Naveen Kaushik (A-9).
367. He stated that during PE Sh. Mayank Goswami, Sh. Ashwani Vig were interrogated and subsequently named as accused in the FIR, but for the reasons best known to the IO they were not made accused in the Charge-sheet ; that some one has misused his particulars i.e. name, father's name and address ; and it is admitted case of CBI that the membership documents also does not bears his signatures
368. That letters dated 10.11.2003 Ex PW50/D and 13.12.2003 Ex PW50/E sent by the DDA to the Secretary/ President of the Society was never received or replied by him ; he only received one letter dated 03.11.2003 in the normal course and had no concern with the same, hence, it was not replied.
369. Accused further stated that PW-52 Sh. Sujay Saha, Government Examiner, has given his opinion under the pressure of CBI ; proper technique was not applied by him, the opinion with any enlarged photographs of specimen and questioned documents, rough notes and admitted signatures of the persons concerned of the contemporaneous period as that of questioned signatures were not filed.
CBI Case No. 191/19 75 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) That the reasons for opinion cannot be read as same was filed belatedly without certificate u/s 65 B of the Evidence Act.
370. He stated that the present case is result of unfair and partial investigation ; IO has failed to produce even single evidence documentary or oral against him to establish his case ; he never appeared before the RCS as Secretary ; IO has failed to connect him with any of the alleged co-accused and no witness has even deposed a single word against him.
371. Accused did not prefer to lead defence evidence.
372. Accused Ashwani Sharma (A-8) denied the allegations of prosecution and submitted that it is a false case, the IO has not conducted fair and impartial investigation ; that in the house search of PW-3 Sh. Mayank Goswami various documents related to different societies were seized and recovered, and despite that PW-3 Sh. Mayank Goswami and PW-4 Sh. Ashwani Vig are not made accused in the present case.
373. Accused further stated that the IO has not taken the sample specimen handwriting and signatures as well as admitted handwriting/signatures/thumb impressions etc for comparison of witnesses and/or other persons who were concerned with the affairs of the Society and the main suspect in the present case.
374. He further stated that report of GEQD cannot be read as it was not furnished by a especially skilled person ; there is no photograph attached with opinion ; that the reasons for the opinion are also not correct, furnished after manipulation and a long duration ; and Sh. V.G.S. Bhatnagar, another expert also CBI Case No. 191/19 76 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) examined the documents independently, prepared his reasons for opinion which were different and hence they are not filed on record.
375. He further stated that he is innocent ; not committed any offence ; no independent witness has deposed against him ; the IO has not relied upon the documents which clearly prove his innocent ; the CBI officials in order to exonerate the actual wrong doers have made him a scapegoat and falsely implicated to save the real culprits.
376. He preferred to lead evidence in his defence.
377. Accused Naveen Kaushik (A-9) denied the allegations of prosecution and all the questions put to him in his statement under Section 313 Cr.P.C, on the similar lines as stated by his co-accused Sh.Ashwani Sharma (A-8) and has taken same defence.
378. He preferred to lead evidence in his defence.
379. Accused P.K.Thirwani (A-10) denied the allegations of prosecution and submitted that it is a false case ; he has not committed any crime ; falsely implicated by the CBI without any evidence ; there is no demand of any pecuniary advantage ; he had not violated any provisions of the DCS Act & Rules and the present case is just to swell statistics.
380. He further stated that 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.
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381. He stated that from 13.05.2000 to 29.09.004, he remained as Departmental Auditor in the Audit Branch of the RCS Office and his duties were to conduct the audit of various Societies like CGHS, Thrift and Credit Society, Handloom Society, Transport Society and Store ( Cooperative ) etc.
382. That the audit of the present case was assigned to him by Sh. J.S. Sharma the then AR (Audit).
383. He was not in collusion with any of the accused persons and had conducted the audit on the basis of the records produced by the Society ; that as an auditor was responsible for conducting the audit of the Society and as per his knowledge and wisdom if any deficiency was found in the audit report, he used to mention the same thereto.
384. That it was the duty of the concerned Zone to take necessary steps for getting necessary compliances made from the Society, or to get the objections raised in the audit report removed, before sending the list to the Policy Branch of RCS for onward transmission to DDA.
385. That he raised serious objections in his report which shows he was not in collusion with any person of the Society, and moreover he had no role to send the list to the DDA for allotment of land.
386. This is a false case based on wrong interpretation of provisions amounting to abuse of process of law ; no complaint by any aggrieved person or loss to the government was raised and there is no violation of DCS Act and Rules ; there is no evidence of demand of any pecuniary advantage and nothing was CBI Case No. 191/19 78 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) recovered in his house search.
387. He prefer to lead defence evidence.
DEFENCE EVIDENCE : -
388. Accused P.K. Thirwani (A-10), N.S. Khatri (A-3), Narain Diwaker (A-1) and Shakir Hussain (A-6) have lead defence evidence and examined witnesses in support of their defence.
389. DW-1 Sh.V.G.Nair was summoned by accused P.K. Thirwani (A-10) in support of his defence and during examination the witness produced the file pertaining to Sanction for prosecution of accused P.K. Thirwani. The same was taken on record as Ex DW1/1,
390. Despite opportunity witness was not cross-examined by the prosecution.
391. DW-2 Sh. K.S. Jayachandran was summoned by accused N.S. Khatri (A-3) and he deposed that the file pertaining to accord of Sanction for prosecution of accused N.S. Khatri in their office is not available as a fire had taken place in their office in the year 2012 due to which several records files, computer, furniture and the requestioned record file got burnt.
392. The witness was not cross examined despite opportunity given to the prosecution.
393. DW-3 Sh. S.C. Pradhan was summoned by accused Narain Diwaker (A-1) and he deposed that in the year 2003, he was posted as System Analysist in the office of RCS, New Delhi and was assigned the task to supervise the website of the RCS CBI Case No. 191/19 79 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) office for uploading the data on the website.
394. That the complete particulars of the Cooperative Societies registered with the RCS and the particulars of the members/office bearers available in the office were uploaded on the website in routine manner.
395. That the launch of the website and helpline number for the assistance of the general public was also published in the newspapers.
396. In his cross examination, he submitted that there were nine zones of RCS Office, the data provided to the operators by the concerned Zonal offices was uploaded on the website by the concerned Operators and he has no knowledge whether the data of Imamia CGHS was uploaded on the website or not.
397. He stated that he used to point out the deficiencies qua uploading of the data in the monthly meetings convened by the Registrar and thereafter those deficiencies used to be removed by the concerned Zone.
398. DW-4 Sh. Shakir Hussain (A-6) in his defence evidence deposed that he was promoter member of Imamia CGHS which was formed in the year 1983 ; that only Muslim Community or the persons belonging to poor community were to be inducted as its members and 74 Promoter Members of Muslim community were enrolled accordingly.
399. After election Sh. Mohd. Tehsin Haider was elected as President, Sh. Shamim Haider as Vice President, Sh. Mohd. Abid as Treasurer, he (Shakir Hussain,(A-6) himself as General CBI Case No. 191/19 80 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Secretary and Sh. Akbar Ali, Sh. Mazahir Hussain & Sh. Sabir Hussain as the members of the Society.
400. That in the year 1983, Resolution was passed by the Managing Committee to enrolled 13 members belonging to the Muslim community.
401. He stated that in the year 1990 the Society became defunct because certain members of the Society had lost interest in the its affairs, and prior to that they were holding regular meetings, used to maintain and get the records of the Society audited periodically.
402. He further stated that in the year 2003, he came to know that the Societies are being revived and Sh. Mayank Goswami, Sh. Ashwani Vig & Sh. Anil Kumar approached the office bearers of their Society for revival of Society against nominal service charges, and after discussion with other members of the Society, the task of revival was entrusted to them.
403. That he handed over the records of the Society, including Proceedings Register, Membership Register, Audit Reports except the Receipt Book to Sh. Mayank Goswami, Sh. Ashwani Vig and Sh. Anil Kumar on 03.03.2003 and acknowledgement in this regard was given by Sh. Mayank Goswami Ex PW3/DA.
404. He also stated that receipt book already Ex PW6/D1 containing membership records of 1 to 87 original members of the Society was not handed over to them to ensure that they do not add any new member in the Society.
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405. He stated that for the revival proceedings of the Society with the RCS, at the request and convenience of Sh. Mayank Goswami, Sh. Ashwani Vig and Sh. Anil Kumar (A-7), the address of the Society was changed to Brij Puri, Delhi after discussing the issue with other members of the Society.
406. That in the month of February, 2005 some of the members received letter from RCS for verification of their membership whereas others did not.
407. And he alongwith Sh. Tehsin Haider, President, Sh. Mohd. Abid, Sh. Mazahir Hussain and some other members approached RCS Office to know its reasons, where one Official Mr. Anjum, a person of their community met them and informed that the persons who had not received any letter from the RCS means their membership has been cancelled, and accordingly a meeting dated 22.02.2005 of the Society was called and the minutes of the same are Ex PW2/DC.
408. He stated that it was Assistant Registrar, RCS, who informed them that 42 members belonging to other communities have been added as member of the Society ; that a complaint in this regard was made to AR,(RCS) and also to Police Station Preet Vihar against Sh. Mayank Goswami ; members were also informed about it in the subsequent meting held on 05.03.2005 (part of Ex PW2/DC) and vide meeting dated 23.03.2005 (Ex PW12/DC) every genuine member was informed for re- verification of their records at RCS Office and/or vide meeting dated 22.04.2005 (Ex PW12/DB) it was resolved to take steps against those members were inducted without their consent and CBI Case No. 191/19 82 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) knowledge.
409. That pursuant to the resolution passed in the General Body Meeting an Arbitration Case in the RCS Office was also filed and on being informed that it was an administrative matter by the RCS Officials, they accordingly filed a Civil Suit in Tis Hazari Courts against 42 members vide Ex PW36/DA (copy of Plaint bearing no. CS-8372/2016) and he placed on record Certified copy of the final judgment dated 19.08.2019 Ex PWDW4/1.
410. He stated that on 28.04.2005 they lodged another complaint against Sh. Mayank Goswami and the new office bearers of the Society in PS Bara Hindu Rao vide Ex PW61/D1 and lateron the case was taken over by CBI and Sh. Mayank Goswami, 42 members and new office bearer of the society were not named in the chargesheet.
411. The witness was cross examined by the learned PP wherein he reiterated the facts as narrated by him in his chief and on the lines of his defence so put forth to the prosecution witnesses during their cross-examination.
FINAL ARGUMENTS :
412. A lengthy arguments have been addressed by learned PP for CBI as well as by all the learned defence counsels for the respective accused persons, number of judgments have also been cited at bar in support of their respective claims and the same have been dealt with at the time of appreciation of evidence underneath in the judgement.
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413. I have also given my thoughtful consideration to the arguments advanced at bar and have meticulously gone through the evidence recorded in the matter as well as the documents proved on record.
ANALYSIS & FINDINGS :
414 (I) Forgery in the record of the Society.
415. PW-1,PW-2,PW-3,PW-4,PW-9,PW-12,PW-16,PW- 17,PW-19,PW-22,PW-25,PW-26,PW-27,PW-28,PW-29,PW-31, PW-32,PW-33,PW-34,PW-35,PW-43,PW-44,PW-45 and PW-46 were either the founder members or the members who had initially taken the membership of the Society in question prior to the year 1987.
416. They all proved their signatures and the membership through various documents including the membership application, affidavit etc. during their deposition. (Original Members).
417. They all further testified that they have never tendered their resignation from the membership of the Society and the resignations and the receipts executed in their names respectively are forged and fabricated documents.
418. Similarly, the other set of witnesses i.e. PW-7,PW- 8,PW-10,PW-11,PW-13,PW-14,PW-15,PW-20,PW-21,PW-23, PW-24,PW-30,PW-36,PW-37,PW-38,PW-39, and PW-40, have also deposed to the fact that they had never taken the membership of the Imamia CGHS at any point of time.
419. They all deposed that the application forms, CBI Case No. 191/19 84 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) affidavits and other records of the Society executed in their names, shown and exhibited during their examination before the Court, are forged and fabricated documents.
420. Thereby, they also denied having taken part in any GBM or any other proceedings of the Society concern, nor were theyhaving knowledge about the affairs of the Society in question.
421. In fact the falsification of the records is also not denied by the accused persons in terms of their defence so put, with the rider that they had no knowledge about the manipulation of the records, nor were they were involved in any illegality of the process, nor were they concerned with the manufacturing of the said false and forged records.
422. Accused Shakir Hussain (A-6) was one of the Promoter member and the 'Secretary' of the Society, and he himself is admitting the records of the Society, the members inducted thereto primarily of a different community, and the proceedings so reflected in the main register of the Society subsequent to the year 1987 till 2005 are false and fabricated, as he had given the original records of the Society to one Sh. Mayank Goswami and his associates for its revival and approval of the list.
423. So, it is evident from the testimony of the witnesses discussed above that the original members of the Society who had never ever tendered their resignations are shown to have resigned from its membership ; members who never took its membership, who mostly belong to a different community, were CBI Case No. 191/19 85 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) also shown to be its members without their consent and knowledge ; some other unknown persons also seems to have been shown as the members of the Society by using their personal details.
424. Thereby, appreciating the testimony of these witnesses and the stands so taken by the accused persons, the forgery and falsity of the records of the Society is apparent on the face of it. There is no dispute to the said fact.
425. 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 seeking approval of the list of the Society to seek land from DDA.
426. The question now arises whether the accused persons had any active role into the fabrication of the records of the Society in question with the intent to seek its revival and subsequently the allotment of land by DDA on concessional rates for its alleged members.
Conspiracy :-
427. Before proceeding further, it would be appropriate and useful to discuss the essential ingredients and governing principles of the conspiracy :-
Section 120A IPC
428. 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-
CBI Case No. 191/19 86 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) (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 thereof.
Explanation:- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.� Section 120B IPC
429. 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 CBI Case No. 191/19 87 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) shall be punished with imprisonment of either description for a term not exceeding six months or fine or both.
430. 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 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.
431. 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.
432. 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 CBI Case No. 191/19 88 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) direct evidence or by circumstantial evidence or by both.
433. 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.
434. Since the Proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason Section 10 of the Indian Evidence Act was enacted.
435. 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.
436. The Hon'ble Supreme Court in Ram Narain 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 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 CBI Case No. 191/19 89 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) 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)
437. In another landmark judgment on the aspect of conspiracy, wherein the Hon'ble Delhi 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
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commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and 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 CBI Case No. 191/19 91 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) 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 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 CBI Case No. 191/19 92 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) by necessary implication. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators 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 ShivNarain LaxmiNarain 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 CBI Case No. 191/19 93 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS)
introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co conspirators. In short, the section can be analyzed 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 Honble Supreme Court in Bhagwan Swarup v.
State of Maharashtra, AIR 1965 SC 682 (known as 2nd Caveeshar case) in which his lordship Honble 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 CBI Case No. 191/19 94 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) inapplicable. For example principle like that of resgestae as contained in Section 6 of the Evidence Act will continue to apply. (Para 582). Therefore, the resgestae i.e. the acts, 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.
438. It may also be noted that mere agreement to commit a conspiracy is a punishable offence.
439. 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.
440. With 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.
441. (A). The Role of Public Servants / Officials of RCS Role of accused Sh. Narain Diwakar (A-1)
442. Accused Narain Diwakar was the Registrar at the relevant time and had passed the Revival order dated 04.09.2003 of the Imamia CGHS.
443. It is alleged and argued that he deliberately overlooked manipulation in the records and passed favourable orders to revive the Society in pursuance to the conspiracy.
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444. That he also over-looked the fact that the members allegedly inducted in the Society at the later point of time were from different community, contrary to the fact that the Society was constituted for the welfare of the community of Muslims who all were the founder and promoter members of the Society.
445. The Prosecution has primarily relied upon the Notings file of the RCS in support of their case against him.
446. The revival order dated 04.09.2003 (D-21) and other Notings thereto are not disputed by accused Narain Diwakar (A-1) .
447. It was contended that the order was passed in discharge of his official duties in-exercise of the powers envisaged under Section 63(3) of the DCS Act, after considering the Notes/proceedings so put up by the subordinate officials primarily on the basis of Inspection Report of accused Narender Kumar (A-4), who was appointed as Inspecting Authority to verify and check the records of the Society.
448. It is stated that there was no ambiguity or illegality in the revival orders so passed by him and that the said order was never challenged by any person and thereby has attained finality, and this court can not sit in review over the said order in terms of the express bar imposed vide DCS Act and Rules.
449. Undisputably, there is no direct evidence to demonstrate the fact that the revival order was passed by accused accused Narain Diwakar (A-1) in connivance with co-accused and/or pursuant to the conspiracy.
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450. Ld. PP has referred to the revival order to state that it was passed in a mechanical manner without checking and verifying the original records, and the fact that subsequent members inducted in the Society were from a different community, which by itself was sufficient to raise suspicion and the said fact was deliberately over looked by him, which implies that accused was hand-in-glove with other co-accused persons, and the revival order was so passed in furtherance of the conspiracy to give benefit to the accused persons.
451. I have carefully gone through the Noting(s)/ proceedings of the RCS Office from its Noting file (D-15) including the revival order passed by accused Narain Diwakar (A-1).
452. It can be seen that vide Noting(s) dated 10.05.2001, an application for Revival of the Society was moved with the undertaking that the short comings for which the Society was brought under liquidation have been removed.
453. Thereafter another request letter dated 05.02.2003 was submitted on behalf of the Society for its revival under Section 63(3) of the DCS Act & Rules.
454. A note in that regard with the reason for winding up of the Society, in terms of order dated 03.09.1990 (Page 8/N), was prepared by Sh. Rakesh Kumar (A-4) and put up before Sh. Ramesh Chandra AR East, (A-2) for necessary action.
455. It may further be seen that thereafter in terms of Notings dated 03.07.2003 (Page 15/N) one Sh. Anil Kumar Secretary of the Society had appeared before accused Sh. Narain CBI Case No. 191/19 97 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Diwakar (A-1), and he accordingly directed his Reader to send the file to the concerned Zone for verification of the membership and to ascertain the Audit/Election status of the Society, and proceedings were adjourned to 27.07.2003.
456. As per Notings 19/N & 20/N the documents are stated to have been examined by the concerned AR Sh. Ramesh Chandra (A-2) and found in order on 22.07.2003, whereby the file was forwarded to the RCS Sh. Narain Diwakar (A-1) again for appropriate orders.
457. Thereafter in terms of Noting dated 05.08.2003 (20/N) one Sh. Ashwani/ Office Secretary of the Society was present and the case was reserved for orders and the revival order was finally passed by Sh. Narain Diwakar (A-1) on 04.09.2003.
458. There is no mention that the proceeding(s) register and the Membership Register were produced before the Registrar (A-1) by the then Management of the Society at the time of hearing or by any other official / or person for his perusal or physical verification or that he himself had physically verified all the original records of the Society before passing of orders.
459. The revival Order dated 04.09.2003 is explicit in that regard whereby it can be seen that one Sh. Anil Kumar the Secretary of the Society had appeared before accused Sh. Narain Diwakar (A-1 the then Registrar) and stated to have complied with all the mandatory requirements under DCS Act & Rules i.e. Election of the Management Committee in the Special GBM held on 22.12.2002, records of 87 members have been submitted for verification and further under took to get the accounts audited till CBI Case No. 191/19 98 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) 2003 with undertakings to fulfill all the statutory requirements in future.
460. The name of Sh.Anil Kumar and his status as 'Secretary' of the Society was also duly mentioned and verified by Sh. Narender Kumar (A-4) as per his inspection report dated 06.06.2003
461. Relevant to note is the fact that the Revival order in question is pre-dominently premised on the Inspection report of (A-4) who had verified the records/documents and factual position of the Society and the noting(s) of A.R( East) / accused no. 2 wherein it was stated that records of the Society have been checked and verified.
462. So, no fault can be attributed to the act of accused Sh. Narain Diwakar (A-1) who had passed the Revival orders on the basis of Verification Reports and the relevant Notings submitted by his subordinate officials. .
463. Herein, I may say that just because members of other community were inducted in the Society by itself was not sufficient to say that accused Narain Diwakar (A-1) was privy to any conspiracy.
464. Moreover, in terms of By-laws of the Society, I do not see any such clause/condition or object to say there was a bar qua registration of a member from a different community or to say that its membership was exclusively reserved for one particular community.
465. It was also contended that two different persons in CBI Case No. 191/19 99 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) the capacity of 'Secretary' of the Society had appeared before the Registrar (A-1) when the proceeding for revival of the Society were undertaken by him which shows that he was also in connivance with co-accused persons.
466. But I see no illegality or irregularity in the appearances so marked on the particular dates.
467. On 03.07.2003 one Sh. Anil as 'Secretary' of the Society was present, whereas on 05.08.2003 one Sh. Awhwani, 'Office-Secretary' of the Society was present before the then Registrar Sh. Narain Diwakar (A-1) and it can not be said that on both occasions, the then 'Secretary' of the Society was present and accused Narain Diwkar (A-1) had intentionally or deliberately ignored the fact that Sh. Ashwani was not the Secretary of the Society. He had appeared as an 'Office Secretary'.
468. Further, 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.
469. In fact, the verification of the documents was carried out pursuant to the directions issued by accused Sh. narain Diwakar (A-1) in terms of his order dated 03.07.2003 i.e. page 15/N.
470. Learned PP further argued that accused A-1 had passed similar conditional orders in many cases of other Group Housing Societies considered by him and therefore reading the provision of Section 15 of the Evidence Act, the act of the CBI Case No. 191/19 100 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) 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 persons.
471. I do not concur with the submissions of the learned PP so advanced.
472. 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.
473. 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.
474. Therefore, the question whether it was accidental or done with particular knowledge or intention is of not much relevant to the facts of the case.
475. Furthermore, just because accused Narain Diwakar (A-1) is involved in other cases of similar nature or that he was convicted in some of cases by itself is no ground to convict him in the present case also merely on the said assumptions, in absence of any incriminating material against him herein.
476. Further, the prosecution has also failed to produce any thing on record in the form of independent evidence to show that any of the accused persons or any other person had met accused Narain Diwakar (A-1) at any point of time, prior or even subsequent to the final order dated 04.09.2003 passed by accused Sh. Narain Diwakar (A-1) vide which the Society in CBI Case No. 191/19 101 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) question was revived.
477. Nor is there anything on record to reflect that any financial advantage was derived by accused Narain Diwakar (A-
1) by the said Act. There is absolutely no investigation on this aspect.
478. Nor it is the case that the case of any defunct Society was ever rejected by the then Registrar Sh Narain Diwakar (A-1) during his tenure while exercising his powers in terms of Clause (3) of Section 63 of DCS Act or any preferential treatment was given to the Society herein.
479. It is also far fetched an arguments to conceive that Registrar RCS was expected to personally and physically visit the office of the Society to verify its records or to call up each member of the Society for its verification. And arguments of the prosecution contrary to that does not find favour with the Court.
480. 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 to him under the criminal jurisprudence.
481. There is thus no cogent and acceptable evidence to show that accused Narain Diwakar (A-1) had abused his official position or that the 'revival order' of Society was passed in furtherance of any conspiracy with co-accused persons.
482. Thereby, drawing any inference of dishonest intention and conspiracy from the 'stand-alone' Act of accused Narain Diwakar (A-1), in absence of other evidence, would not CBI Case No. 191/19 102 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) be a safer proposition in the facts of the present case, and accused Narain Diwakar (A-8) is entitled to benefit accordingly.
Role of accused Sh. N.S.Khatri (A-3)
483. The allegations against accused Sh. N.S. Khatri (A-3) are that he abused his official positions and submitted a false Election Report despite knowing fully well that no member, as shown in the election proceedings, attended any such meeting when the Elections of the Management Committee are stated to have been conducted on 19.10.2003 to given benefit to accused persons.
484. Accused N.S. Khatri (A-3) has denied the Election report so produced by the prosecution in support of their case.
485. PW-49 Sh. Rakesh Bhatnagar, the then Joint Registrar, was examined by the prosecution and he identified the signatures of accused N.S. Khatri on Election report Ex PW49/M & Proceedings of Election dated 04.09.2003 Ex PW7/E, amongst other documents concerning other accused persons.
486. However, relevant to note is the fact that in the cross-examination, PW-49 admitted to the fact that accused N.S. Khatri (A-3) had not worked directly under him and he had not seen him signing and writing at any point of time.
487. So, I failed to appreciate how and on what basis Mr. Bhatnagar PW-49 has identified the signatures of accused when he himself had not seen him writing nor had the accused ever worked under him. His testimony on that count does not inspire CBI Case No. 191/19 103 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) confidence of the Court.
488. Importantly, it may also be noted that there is no corresponding Notings in the file of the RCS to reflect that accused N.S. Khatri (A-3) was appointed as Election Officer of the Society at any point of time. His name does not find mention anywhere in the said Noting file (D-15) exhibited vide the testimony of PW49.
498. One entire file containing the correspondence related to the Election Proceedings of the Immamia CGHS was exhibited by the Investigating Officer as ExPW61/2 (D-28).
490. Herein also except two letters addressed to the Assistant Register (N/W) with the Election result dated 19.10.2003 and one to President/Secretary Imamia for information about the Elections are allegedly under the signatures of accused N.S. Khatri (A-3), whereas the other Election report (dated 22.12.2002) is shown to have been conducted by another Election Officer Sh. Sanjay Kumar,whose status remain silent and there is no investigation about his identity and role thereto.
491. The said signatures at point B-2 & B-3 were identified by PW-49 Sh. Rakesh Bhatnagar but as noted above his testimony can not be believed on the said aspect. The manner in which the aforesaid file had surfaced in the CBI office is also under suspicion and the manipulation in the said documents by any third person can not be ruled out.
492. Accused N.S. Khatri (A-3) has also specifically denied his signatures on the report Ex PW49/B and the fact of CBI Case No. 191/19 104 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) election proceedings alleged to have been undertaken by him in his statement under Section 313 Cr.P.C.
493. Further, there is no GEQD report qua the said signatures on record, nor is there any evidence to reflect that the questioned signatures on the report and the proceedings were appended by accused N.K. Khatri (A-3).
494. Thereby, the Election report Ex PW49/M & Proceedings of Election dated 04.09.2003 Ex PW7/D & PW7/E (D-23) are of no assistance to the case of prosecution to say that it was submitted by accused N.K. Khatri under his signatures, or that pursuant to his alleged appointment as Election Officer, he had undertaken the Election proceedings as mentioned in the Election Report and the GBM held on 19.10.2003.
495. The Election report dated 19.10.2003 (D-23) thereby remains 'not proved' to state that it was authored by accused N.S. Khatri (A-3) or that he had conducted the Election of the Society in terms of GBM shown on 19.10.2003, as alleged by the prosecution , thereby he is entitled to be acquitted for want of cogent and reliable evidence against him.
Role of accused Narender Kumar (A-4)
496. The allegations against accused Sh. Narender Kumar (A-4) are that he abused his official positions and obtained/attempted to obtain pecuniary advantage to accused persons (A-6 to A-9) by submitting a false Inspection Report on the basis of forged documents and without visiting the official address of Society at C-16, New Brij Puri, Delhi.
CBI Case No. 191/19 105 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS)
497. Prosecution has relied upon the Inspection Report (running page no. 6731-6733 Part of D-21), seized during investigation of the case from the RCS Office and the Official Noting(s) in the file of the Society with the RCS.
498. The Inspection report dated 06.06.2003 (D-21) prepared and filed by the accused under Section 54 of the DCS Act & Rules concerning the Society in question is not denied by him (A-4).
499. The only plea taken by him is that he had carried out the inspection as per law and there was no irregularity or illegality in it, nor was it pointed out by any of the RCS Official(s). I do not concur.
500. Even though, it was urged by the counsel for the accused (A-4) that the Inspection report has not been proved as per law, nor was it put to the accused persons during trial.
501. But the question remains that the said Election Report is no where disputed by accused (A-4).
502. In fact, the RCS noting(s) file (D-15) have also not been disputed by the any of the accused persons including (A-4), they are also official records produced from the RCS Office, wherein the contents of his verification report so submitted by him are specifically mentioned by the dealing assistant Sh. Rakesh Kumar (A-5) and the then Asstt. Registrar (East) Sh. Ramesh Chandra.
503. In the cross-examination of PW-49 Sh. Rakesh Bhatnagar, who proved on record the said noting(s), accused (Sh.
CBI Case No. 191/19 106 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Narender Kumar (A-4) has not disputed the said factual aspect noted therein about his inspection report.
504. It is evident that in his statement u/s 313 Cr.P.C he is admitting the factum of carrying out the physical Inspection of the records of the Society and submitting the Inspection Report in terms thereof, with the plea that inspection report was conducted under Section 54 of the DCS Act and was submitted by him in discharge of his official duties and no RCS official has pointed out any deficiency/irregularity in his report.
505. So, it can be noted that accused (A-4) had visited the office of Society at Brij Puri and met Sh. Anil Kumar, 'Secretary' of the Society, who had produced the relevant records of the Society for its Inspection to him.
506. He stated that "Membership Register" was complete in all respects. But the said register (D-2) Ex PW2/K speaks itself about its falsity and ambiguity, in the proceedings of the Society so reflected, which are visible with the bare naked eyes.
507. Page no. 36 to 55 Ex PW2/N(colly.) of the said Proceeding Register may be noted herein. Whereby, there are no signatures of any member of the Management Committee in the proceedings so undertaken on particular dates i.e. 10.06.1998 ; 12.07.1998 ; 15.08.1998 ; 10.09.1998 ; 07.10.1988 ; 04.11.1998 ; 01.12.1988 and 05.01.1989 amongst various others till 20.11.1989.
508. Similarly, the proceedings undertaken by the Management Committee of the Society allegedly on 08.02.1989 ; 10.03.1989 ; 16.04.1989 ; 02.05.1989 ; 10.06.1989 ;
CBI Case No. 191/19 107 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) 07.07.1989 ; 16.08.1989 ; 05.11.1989 and 20.12.1989, be noted further, wherein not only the signatures but the name of the members of the management committee of the Society are also completely missing from the alleged Proceeding and the Register maintained thereto.
509. Surprisingly, number of business transactions on behalf of the Society are also reflected to have been undertaken by the said management committee, which in-fact is not existing and reflected, in the Proceedings Register.
510. Further, accused Sh.Narender Kumar (A-4) stated that he met Mr. Anil Kumar, Secretary of the Society (A-7) but importantly, the name of Mr. Anil Kumar as member of the concerned Society does not figure in the list of original 87 members of the Society, who are all of Muslim Community, in terms of his report, mentioned at Page 13/N Clause 7 of RCS file wherein he claimed that the records were found in the safe custody of the 'Secretary' of the Society.
511. Name of one Sh. Anil Kumar s/o Sh. Chaman Lal is appearing at serial no. 96 in terms of subsequent proceedings undertaken on behalf of the Society which are mentioned in a different and a separate Proceedings Register all together.
512. The corresponding proceedings of the GBM committee, how, when and where Sh. Anil Kumar and other members from serial no. 88 to 129 were inducted is conspicuously missing from the records of the Society.
513. Further, the statement that he visited the office at Brij Puri, Delhi also appears to be false as no such proceedings CBI Case No. 191/19 108 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) of change of address of the Society are reflected in the original Proceeding register of the Society D-2 Ex PW2/K page no. 36, even assuming it to be true.
514. He stated that as per records of the Society,the address of the Society was shifted from 983, Mohalla Kishan Ganj, Azad Market to C-16, New Brij Puri, Delhi. But there is no proceedings reflected in the Registrars of the Society to indicate so.
515. Separate register (D-24) Ex PW2/P seems to have been prepared and used to fabricate the Proceedings in which the Management Committee discussed, in terms of agenda item no.4, amongst others that the Society will be run from the office i.e C-16, New Brij Puri, Delhi.
516. But interestingly, the very same GBM on 22.12.2002, is allegedly shown to have taken place at the same address, and prior to that there are no proceedings when this address of New Brij Puri, Delhi became the official/ corresponding/ address of the Society.
517. His report is also contrary to the fact of total membership of the Society and the resignation /induction of members to it. The subsequent Proceedings show the total membership to the tune of 129 members of the Society, which allegedly were inducted as member in the GBM held on 28.11.1987 (till serial no.100 ), on 06.02.1988 (till Serial no.120) and on 22.01.1989 the remaining members (till Serial no.129).
518. Though, some original members were allegedly shown to have resigned to keep the total strength of 87 members CBI Case No. 191/19 109 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) only, no such corresponding proceedings of the Management Committee can be seen in the records of the Society to show their resignations or the induction of new members.
519. All these facts noted above, manifestly indicate that it was a willful and dishonest act on the part of the accused Sh. Narender Kumar (A-4), whereby he has intentionally given a false report with the intent to give a pecuniary benefit or financial an undue advantage by submitting a false report.
520. And importantly, this false report by A-4 formed the very basis of subsequent action/proceedings undertaken by other officials of the RCS while taking up the case of the Society concern for its revival and further transfer of the list to the DDA for allotment of the land.
Role of accused Sh. Rakesh Kumar (A-5)
521. Accused Rakesh Kumar (A-5) was the dealing assistant at the relevant time and allegations against him are that he in pursuance to the conspiracy put a favourable note for consideration of Revival of the Society Imamia CGHS in terms of Notings from page no.11/N to 14/N (D-15) in the RCS file .
522. The Note(s) so put by accused (A-5) is not disputed by him.
523. First Note dated 27.03.2003, at page no.11/N of RCS files, simply narrates the facts that the request has been received from the 'President/'Secretary' for the Revival of the Society.
524. It also states about the registration number of the Society and its winding up order number 11250 dated 03/09/90 CBI Case No. 191/19 110 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) due to non holding of Elections and not furnishing of the list of its members. Thereafter, (A-5) simply states that the file may be put up before the RCS for necessary action.
525. Subsequent proceedings on the said file are undertaken by the Assist Register Sh. Ramesh Chandra (A-2, Since expired) and P.A to the then RCS, who has then sought for physical verification of the Society and the other compliances, if so, in terms of DCS Act and Rules.
526. Further, another note in terms of 13/N, dated 13.06.2003, was put up by Sh. Rakesh Kumar (A-5) wherein he again narrated the facts about the inspection of the records of the Society so carried out by the accused Narender Kumar (SI Grade-III) (A-4), who was appointed as 'Inspection Officer' to physically verify the records of the Society and carry out Inspection in terms of Section 54 of the DCS Act by Sh. Ramesh Chandra (A-2) the then AR (East).
527. This note also mentions about the findings of the Inspecting Officer wherein he has given the details and the positive inspection report so furnished thereto by accused Narender Kumar (A-4).
528. Thereafter factual aspect of the Society under liquidation and the assurance given by the then Management Committee is also mentioned with the request to place the file before the worthy RCS to consider :-
a) request for revival under Section 63 of the Act and CBI Case No. 191/19 111 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS)
b) to approve the list of members for allotment of land.
529. Similarly, vide the note at page 16/N dated 21.07.2003 accused Rakesh Kumar (A-5) has again mentioned about the details of the Society and a letter dated 05.02.2003 whereby the Society was seeking removal of the defaults for further functioning.
530. The documents/information furnished by the Society in support of the application seeking revival were also mentioned by accused (A-5) in his Noting(s) i.e. :
i). Requisite Affidavit of the Society duly attested by Notary Public
ii) the Election of the Management Committee so conducted on 22.12. 2002,
iii) the Audit Report upto 1986-1987 and its preparation of accounts upto March,2003
iv) That no court case/arbitration proceedings/or an inquiry/inspection pending and a Certificate so filed by the Society alongwith other miscellaneous information.
vi) Status of its members - Promoter & the one resigned & fresh enrollments with their details so mentioned on page no.17/N, 18/N & 19/N.
531. So, it can be seen that the facts narrated by accused Sh. Rakesh Kumar (A-5) in his Notings simplicitor talks about the inception of the Society, the verification/inspection report CBI Case No. 191/19 112 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) submitted by Sh. Narender Kumar (A-4) and other documents/ information submitted by the Society in terms thereof.
532. There are no allegations of any nature to say that accused had himself prepared any false document, or had recorded any information which was false or to say not available in the documents submitted before him.
533. Simply just because a Note was prepared by him, that also on the basis of the verification report, is not sufficient to attribute any illegality or malafides on his part to say that it was done in pursuance to a conspiracy with other co-accused. More the so, the notes so prepared were signed and endorsed by accused Ramesh Chandra (A-2) specifically stating that the documents produced by the Society have been examined by the Office and found in order.
534. Importantly it was accused Ramesh Chandra (A-2 since deceased) who had appointed Sh. Narender Kumar (A-4) to carry out the physical inspection/verification of the records of the Society in terms of his Noting dated 07.04.2003, and who as discussed earlier had filed the false report.
535. A Note for consideration is also not in my considered opinion sufficient to impute any illegality or criminality or an act with an ulterior motive, when to check and verify other essential compliances was within the authority of concerned Asstt. Registrar, and the final authority to consider to revive and approve the list of the Society was with the Registrar, RCS Officials.
536. And, there is nothing on record to indicate that CBI Case No. 191/19 113 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) accused Sh. Rakesh Kumar (A-5) had exerted any kind of influence upon the Registrar (A-1), Asstt. Registrar (A-2) and/or Sh. Narender Kumar (A-4) during the entire act of series vide which the Society in question was revived or had acted in some unusual way out of his normal course of duties.
537. There is also no evidence on record qua his gaining any undue advantage or pecuniary advantage of any sort for the acts so undertaken by him. There is no investigation on this aspect.
538. Thus, in totality of the facts and circumstances, as discussed above, no criminality or ill-legality can be attributed to the act of accused Sh. Rakesh Kumar (A-5) and he accordingly is entitled to be acquitted in the present case of all the charges so levelled against him.
Role of accused P.K. Thirwani (A-10)
539. The allegations against the accused are that Office of the RCS appointed Sh. P.K.Thirwani (A-10) as Auditor but he neither visited the office nor met any Office bearer and in connivance with others submitted a false report with dishonest and fraudulent intention on the basis of forged documents made available by Sh. Anil Kumar (A-7), and prepared by Sh. Ashwani Sharma (A-8) and Sh. Naveen Kaushik (A-9).
540. PW-49 Sh. Rakesh Bhatnagar have been examined by the prosecution to prove the signatures of accused P.K. Thirwani, amongst other accused persons on other documents/ reports, on the Audit Report dt. 08.09.2003 (D-14) which was exhibited as Ex.PW-49/L. Sh.Rakesh Bhatnagar was working as CBI Case No. 191/19 114 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) a Joint Registrar in the RCS Office from May, 2002 to December, 2003 and he identified the signatures of accused P.K. Thirwani at Points A-1 & A-2 on the said Audit Report.
541. Though testimony of Sh. Rakesh Bhatnagar (PW-49) qua identification of the signatures is under cloud as discussed above in the case of accused No. 3. But herein the Audit report Ex-PW58/B and the signatures are not otherwise disputed by accused Mr. Thirwani (A-10) .
542. In terms of his statement under Section 313 Cr.P.C also he is not denying the said Audit Report wherein he is admitting that the Audit was conducted on the basis of the records produced by the Society and pursuant to the assignment by Sh J.S. Sharma, the then A.R. Audit.
543. So, the question to consider is - whether the Audit report submitted by Mr. Thirwani (A-10) is a false, and/or whether just because Mr. Thirwani (A-10) did not visit the official address of the Society would make him a co-conspirator in the present case ?
544. To the first question, the answer is positive. The Audit Report so submitted by accused P.K. Thirwani (A-10) is completely de-hors the records of the society, which he claims to have prepares on the basis of the records so furnished by the then Management of the Society.
545. But there are glaring discrepancies which are quite evident and visible on the face of the Proceedings register of the Society so maintained and produced in the evidence by the prosecution. Accused has no where denied the said proceedings CBI Case No. 191/19 115 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) register of the Society or the fact that Auditor was not conducted on the basis of said Registers.
546. The original proceedings register exhibited as Ex. PW-2/K (D-2) of the society maintained by it since the day of its inception is complete in all respects till the page No. 36 when the meeting of the Management Committee of the society was held on 10.05.1988.
547. Whereas, as noted earlier, from Page Nos. 38 to 55 of the proceedings register, where the meeting of the management committee is reflected on 20.12.1989, it is evident that the register is completely blank not only with respect to the signatures and other details of the Management Committee but even the names of the so called management of the society are not mentioned.
548. The alleged management of which the accused Anil Kumar (A-7) was shown as 'Secretary' with Mr. S.L. Bhandula as 'President' appears to have come into picture in terms of AGM held on 22.12.2002. But how they became member to the Society and the corresponding proceedings of the Management Committee are conspicuously absent from the records.
549. In terms of Clause 11 of the Report, 28 MC Meetings are stated by accused P.K.Thirwani (A-10) to have taken place during the audit period from 1987-1988 to 2002- 2003, this statement is also contrary to the records of the society as reflected in the proceeding register Ex PW2/K (D-2).
550. Further, as per the questionnaire 19 in the Audit Report, the Auditor was required to state whether the enrollment CBI Case No. 191/19 116 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) of new members during the year was proper, and in answer to that, the reports only talks about 42 new members enrolled during the year 1987-1988 & 1988 to 1999 i.e. 28 and 14 respectively.
551. The said statement is also completely false and misleading for the reasons that there are no corresponding proceedings in the records of the Society ; how, when and in which proceedings of the Management Committee, the said new members were inducted or the resignation of founder/original members were accepted are completely missing.
552. There is no mention of any such exercise being taken by the management of the Society in any of the registers so maintained and produced, be it Ex. PW2/K(D-3), Ex PW2/L(D-
3), Ex PW7/D(D-23) and Ex PW2/P (D-24).
553. Further, the report is also falsified in terms of his own statement wherein he stated to have checked and examined the records in terms of questionnaire 56 & 57, the entries with relative documentary evidences and vouchers.
554. Whereas, the original receipt book of the Society book was produced by accused no.6, Shakir Hussain from his own possession during cross-examination of witnesses and exhibited as Ex PW6/D1. Therefore there was no question of examining and verifying the related documents with respect to the accounts of the Society.
555. All these ambiguities are strikingly apparent on the records of the Register and are noticeable even with a naked eye, which has been deliberately and intentionally over looked by CBI Case No. 191/19 117 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) accused P.K. Thirwani (A-10).
556. However, I do not find any substance in the other contention of learned PP that accused P.K. Thirwani (A-10) had not visited the Registered Office of the Society and therefore on this count also the Audit Report is false.
557. It is too hypothetical and assumptive, premised on number of variables infused with if's and but's, and does not by itself lead to any inference that the Auditor was acting in connivance with co-accused persons. The arguments of the prosecution to that extent is based on surmises and conjectures.
558. Reliance of Rule 84 (5) of DCS Rule 1980 by the prosecution is also misplaced. It was contended by learned PP that in terms of the rule 84(5) so notified under the DCS Act, it was mandatory for an auditor to conduct the audit of the Society at its registered address, exception being the specific directions by the Registrar thereto.
559. It may be an infraction of a rule but to bring it within the ambit of criminal act would be stretching it too far to be justified on legal principles. So the second question is answered in negative.
560. However, as discussed above, in answer to first question about falsity in the records, A-10 has intentionally given incorrect factual position of the Society in his Audit report exhibited as Ex PW49/L (D-14).
561. The suggestions and the shortcomings given in the end of the report are of no assistance to the accused as he had CBI Case No. 191/19 118 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) deliberately concealed the true facts in his Audit Report which were so evident in the records of the Society.
562. Substantive charges under Section 15 read with Section 13(1)(d) r/w 13(2) of P.C. Act were framed against the accused P.K. Thirwani (A-10).
563. Even though no evidence has been led by the prosecution to demonstrate that Mr. Thirwani had obtained any valuable thing or pecuniary advantage to himself but the Audit report Ex-PW49/L so submitted by A-10 is a false report to give undue benefit/advantage to some other persons, which was essentially required under DCS Act & Rules to show that Society was functioning regularly and maintaining its records properly to make it eligible for allotment of land by the DDA.
564. It is though other case that land to the Society in the present case was not allotted as prior to that the illegality in the records and the management of the Society had surfaced and the case was not processed any further by the department.
565. In the light of my above discussions, it is established on record beyond reasonable doubt that accused P.K. Thirwani (A-10) had dishonestly given a false report with an intent to give benefit to the Society to show its statutory compliances under DCS Act & Rules.
(B) Role of Private persons Accused Shakir Hussain (A-6)
566. Accused Shakir Hussain was one of the Promoter Members and original Secretary of the Society in question. There CBI Case No. 191/19 119 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) are two fold allegations against him.
567. One that in the year 2002-2003 he sold the documents of the Imamia CGHS to Late Sh. P.P. Wadhwa through Sh. Mayank Goswami and Sh Anil Vig for a sum of Rs. 8 lacs. At some other references, prosecution also alleges that Shakir Hussain sold the documents of the Society to Sh. Anil Kumar and Sh.P.P.Wadhwa.
568. Whereas, accused Sh Shakir Hussain is not denying handing over the documents of the Society to Sh. Mayank Goswami, but it is submitted that the documents were handed over to Sh. Mayank Goswami for appropriate compliances/ documentation required for the approval of the list/Revival of the Society.
569. Sh. Mayank Goswami and Sh. Anil Vig though both named as an accused in the PE/FIR, however surprisingly they both were cited as a witness and examined as PW-3 and PW-4 respectively in the present case.
570. During their examination before the Court both these witnesses did not support the case of the prosecution.
571. PW-3 Sh. Mayank Goswami testified that (A-6) Sh. Shakir Hussain, 'Secretary' of the Society met him in the office of RCS Office, and when he informed that the list of members of his Society is not approved, he introduced Sh. Shakir Hussain (A-6) to Sh. Ashwani Vig and Sh. P.P. Wadhwa, but he did not facilitate the new membership in the Society.
572. The witness was cross-examined by the learned CBI Case No. 191/19 120 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Special PP as he was resiling from his earlier statement given to the CBI. Despite lengthy examination and confronting him with his earlier statement Ex PW3/PX, witness denied to have made such statement or the facts stated thereto.
573. PW-4 Sh. Ashwani Vig also deposed to some-what on similar lines to state that he was dealing in the sale-purchase of properties and met accused Shakir Hussain (A-6), Sh. Mayank Goswami in the year 2002, and introduced Sh. Shakir Hussain to Sh. P.P. Wadhwa, and in the meeting Shakir Hussain (A-6) informed about the documents of the society and his queries regarding the documents if the same can be rectified to seek the revival of the society and his willingness to handover the same for the said purpose, to which Mr. Wadhwa told him that first he would get the documents checked and verified from RCS Office.
574. PW-4 Sh. Vij stated that he used to facilitate the induction of members in the group housing Societies against the vacancies in the Society on commission basis.
575. That in the meeting accused Shakir Hussain had offered Mr. Wadhwa either to take over the Society or become a partner in running the Society and for this purpose some records were handed over to him without any monetary transactions, and/or membership of the Society was not offered to Sh. P.P.Wadhwa or to Sh. Anil Kumar (A-7) by him.
576. In the cross-examination conducted on behalf of accused Shakir Hussain (A-6) witness denied the suggestions that documents of the Society were never handed over to Sh. P.P. Wadhwa or offered for running the Society and/or no meeting CBI Case No. 191/19 121 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) was held between Sh. P.P. Wadhwa in connection with any rectification & resignations of any members of Society.
577. Though, PW-4 testified the fact that accused Shakir Hussain (A-6) had handed over the documents to Sh. P.P. Wadhwa and that he had also offered him a partnership in running the affairs of the Society, but PW-4 admitted the fact that no money was transacted during the said deliberations and this statement by PW-4, by itself, does not lead to any inference of incriminating fact against accused Shakir Hussain (A-6), except to the fact that the documents were handed over to Mr. P.P. Wadhwa.
578. More importantly, PW-4 himself was one of the accused persons in the present case as his name had figured in the preliminary inquiry and mentioned as an accused in the FIR so registered thereafter in pursuance thereto.
579. So his testimony is unworthy of credit and there is high probability that in order to safeguard his own interest he has testified falsely on those aspects. His testimony cannot be said to be free from any prejudice, biased or self interest.
580. Sh. P.P. Wadhwa had expired during investigation of the case and nothing has come on record, nor there is an investigation, with respect to the allegations of selling the society documents for Rs.8 lacs, as to how, when and where the said amount was transacted, nor is there any evidence on record to show if the said amount was at all ever received by accused Shakir Hussain. Except a bald statement in the chargesheet there is absolutely no investigation on the said aspect.
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581. Further, prosecution case is also fluctuating whether the Society was sold to Sh. P.P. Wadhwa or to Sh. Anil Kumar or to both of them. There is also no evidence or clarity on this aspect in the case of prosecution.
582. Thus, the allegations of Sh. Shakir Hussain for selling the aforesaid Society or its documents for a consideration stands unsubstantiated completely.
583. Further, it is the case of the prosecution that A-6 was one of the Conspirators alongwith A-7, A-8, A-9 and other RCS officials vide which the Society in question was revived and documents were forged and fabricated.
584. Prosecution has relied upon the testimony of witnesses PW-1, PW-2, PW-5, PW-6, PW-9, PW-12, PW-16, PW-17, PW-22, PW-25, PW-26 & PW-27 in support of their case to state that they have all deposed against accused Shakir Hussain (A-6).
585. But relevant to note is the fact that all these witnesses are founder members of the society and they have simply testified to the facts that accused Shakir Hussain (A-6) was the custodian of the original records of the Society being its 'Secretary'.
586. The said fact is not otherwise even disputed by the accused Shakir Hussain (A-6), and besides that I do not think there is any incriminating material against the accused (A-6) in the testimony of above cited witnesses.
587. In his defence accused Shakir Hussain has also CBI Case No. 191/19 123 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) produced a duly acknowledgement receipt /handing over memo dated 03.03.2003 Ex PW3/DA vide which the documents were handed over to PW-3 Sh. Mayank Goswami for the purpose of revival of the Society.
588. Even though Sh. Mayank Goswami (PW-3) denied his signatures on the said memo Ex PW3/DA & Ex PW3/DB but counsel further cross-examined the witness by confronting him with other documents i.e. Search List dt 05.01.2006. wherein his signatures were appended. There also PW-3 denied his signatures and handwriting initially but lateron when the originals were produced he admitted the same to be his signatures.
589. On the question of change of address of the Society from Kishan Ganj to C-16 Brij Puri PW-2, PW-5, PW-6 and PW- 28 denied having attended any meeting vide which the address of the Society was changed.
590. But the fact remains, all these witnesses PW-5, PW- 6 & PW-28 were confronted with the complaint dated 12.05.2005 made before PS Bara Hindu Rao where the registered address of the Society was mentioned there as C-16, Brij Puri, New Delhi. The plea of inadvertent mistake on their part on this aspect does not inspire the confidence of the Court.
591. Similarly, PW-2 when confronted with his Resignation Letter Ex PW 2/DB, and the Civil Suit filed by him against the Society Mark PW2/F for seeking declaration of his Resignation (page no 24 D-10), complete file exhibited as PW51/I( colly.), conceded to the fact that on both these documents the address of C-16, New Brij Puri Delhi was CBI Case No. 191/19 124 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) mentioned by him.
592. PW-2 in his cross-examination also admitted that accused Shakir Hussain (A-6) had informed him that the documents of the Society were given by him to one Sh. Mayank Goswami for its revival.
593. PW-2 also admitted to the GBM of the Society having taken place on 22.02.2005, 05.03.2005, 24.04.2005, Exh PW2/DC, wherein the original members of the Society had discussed various issues regarding the forgery in the records of the Society carried out by some persons, the names of the original members deleted from the membership, and making of Police complaints and taking legal action against the said newly inducted members and other unknown persons who had carried out the forgery in the records.
594. PW-2 though denied having attended the meeting at C-16, New Brij Puri, Delhi but importantly when confronted with these meetings he admitted the meetings, his signatures appended thereto, wherein the address of C-16 New Brij Puri is mentioned in the proceeding register.
595. Accused Shakir Hussain (A-6) has also produced the Receipt Book of the Society from his possession exhibited as Ex. PW-6/D-1 which reflects that the receipts against 87 original members were only issued and remaining pages are blank, to substantiate his defence that only the documents for revival were given to Sh. Mayank Goswami (PW-3) and not to induct new members to the Society, and for this reason the original receipt book of the membership was kept in his possession by A-6.
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596. Reliance by the prosecution was also placed on the testimony of PW-12 Sh. Hazi Zaffar Hussain, as he alongwith another member Sh. Faiyazz Hussain had made a complaint to the DCP Crime Branch Ex PW9/B (D-10), wherein it was alleged that accused Shakir Hussain had done all the forgery in the records of the Society and had cheated him and other members of the Society.
597. However, during cross-examination PW-12 admitted to the fact that he had not seen accused Shakir Hussain (A-6) manufacturing any document of the Society whereby his name was deleted.
598. He admitted the fact that in terms of document Ex.PW12/D he had stated "that I suspected that President/ Secretary of the Society had dishonestly and fraudulently removed our names and had sold the Society"
599. PW-12 admitted that in his complaint to the DCP concerned Ex PW9/D he had also mentioned the stand taken by the accused (A-6) herein that "the records of the Society were taken by one Sh. Goswami, Sh. Anil Kumar and Sh. Naresh Kumar on 03.03.2003 and a complaint was made to this effect on 28.04.2005.
600. PW-12 further conceded to the fact that Sh. Goswami, who had taken the documents/files of the Society in terms of his statement(s), possibly was referred as the Sadhu by him.
601. Further, PW-26 Sh. Abdul Shakoor, PW-33 Smt. Sultan Bano, PW-34 Sh. Wahid Hussain, PW-43 Smt. Afzal CBI Case No. 191/19 126 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Begum amongst other witnesses of the prosecution admitted during their deposition that accused Shakir Hussain had assisted them and had asked them to approach RCS Office with original papers for verification/clarification of their membership when their names were found deleted from the approved list of members of the Society.
602. Accused Shakir Hussain (A-6) had also made similar written representations to the RCS on 02.05.2005, much before the PE in the present case was registered on 20.08.2005, which were brought on record on confrontation to the Investigating Officer and exhibited as PW61/D (Colly.).
603. I also find substance in the submissions of the learned defence counsel that at number of places the signatures in the name of Shakir Hussain (A-6) have been marked as 'Questioned Signatures' and were sent for analysis but not with that of Shakir Hussain himself, nor his specimen signatures at any time were taken to match with those 'Questioned Signatures', implying thereby that the prosecution itself is treating those as forged signatures signed by some other person then Shakir Hussain (A-6).
604. Thus, the entire facts and circumstances and appreciating the evidence so produced on record by the accused Shakir Hussain do to a great extent support the defence so putforth by accused Shakir Hussain that the documents of the Society were handed over to may be Sh. Mayank Goswami or to Sh. Ashwani Vig or to Sh. P.P.Wadhwa or may be to Sh. Anil Kumar which also remains not proved, for appropriate CBI Case No. 191/19 127 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) compliances to seek the revival of the Society in question.
605. Whereas the prosecution has also failed miserably to lead any positive and trustworthy evidence to state that the Society was sold to Sh P.P. Wadhwa or to some other persons by accused Shakir Hussain at any point of time or to show that he was acting in concert with other persons whereby he was aware about the forgery and falsification of the records of the Society.
Role of accused Anil Kumar (A-7) :
606. Allegations against accused Anil Kumar (A-7) are that he after taking the records of the Society from Shakir Hussain (A-6), and in conspiracy with Sh. Ashwani Sharma (A-
8) and Sh. Naveen Kaushik (A-9), prepared false documents of the Society to seek its revival.
607. That A-7 also appeared before the RCS officials and made available all the concerned fabricated documents i.e. Membership Register, Bye-laws, Proceeding Register, Election Register and other such supporting documents required for inspection and revival of the Society.
608. Prosecution has relied upon the Noting file of the RCS at page no. 13/N and 15/N (D-15), Inspection report dated 06.06.2003 (D-21), Election Report dated 19.10.2003 (D-23) and Audit Report (D-24) wherein the name of accused Anil Kumar is mentioned as the 'Secretary' and stated to have given the aforesaid records to the concerned officials for verification.
609. The testimony of PW-15 Sh. Manoj Kumar is also relied upon to state that he identified the signatures of A-7 at CBI Case No. 191/19 128 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) point Q-1144 on a Postal Receipt received at his residential address, and the report of the GEQD wherein two signatures at point Nos. Q-302 & Q-1144 on the documents attributed to this accused Sh. Anil Kumar (A-7).
610. Whereas, Sh. Anil Kumar (A-7) has completely denied his association with the aforesaid Society or with the accused persons in any manner whatsoever.
611. The name of accused Anil Kumar as "Secretary' is mentioned on various documents of the Society i.e. Membership Register, Proceeding Register/Election Report/Audit Report and Verification report including Freeze List.
612. His name is also mentioned at page no. 15/N of the RCS file to show his appearance before the then RCS (accused Narain Diwakar A-1), during revival proceedings.
613. As per Inspection Report dated 06.06.2003, all the original records of the Society were also provided by Sh. Anil Kumar Secretary of the Society to the Inspecting officer Sh. Narender Kumar (A-4).
614. But the question arises whether it was actually Mr. Anil Kumar (A-7) who had appeared before the RCS or had given the records to the concerned RCS official, or whether he was part of the conspiracy or had forged any document.
615. Prosecution has not lead any direct or ocular evidence on these material aspects to show that he was involved in the fabrication of the records or that he had any role to play in the case crime at hand.
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616. No witness of the prosecution has identified accused Anil Kumar (A-7) as the same person who appeared before the RCS or handed over the documents to the RCS official (A-1, A- 2, A-4 & A-10)).
617. The GEQD report in terms of his opinion Ex PW52/B (para no.3, part of D-36) has attributed only two signatures at point Q-302 & Q-1144 to him, out of more-than 1000 disputed signatures or so which were sent for analysis.
618. Q-302 is a writing where address of one Sh. Ashok Bagga is mentioned at the back of a typed list of members of one Society Durga Puja Cooperative Group Housing Society Limited. The said list/page ( part of D-26) was never brought on record by the prosecution during the examination of the witness. Some documents of the said file were put up to the witnesses and exhibited accordingly.
619. But there is no mention of this specific document anywhere in the testimony of the witnesses of the prosecution. Simply by exhibiting the entire file containing various documents by itself does not prove the documents or its contents thereof..
620. Moreover, the said list pertains to some other CGHS Society having no concern with the present Society. Though some members of the said Society are also shown the members of the Imamia CGHS Society which the prosecution claims to be false members. But there is no linking evidence to connect (A-7) with the list of alleged members.
621. There is nothing on record to show that how one sheet of paper had surfaced or from where it was recovered or CBI Case No. 191/19 130 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) the fact that said members were related or were known to him or had taken membership through him.
622. Q-1144 are the signatures on the EMS Speed Post alleged to have been received at the residential address of the accused Sh. Anil Kumar (A-7).
623. Firstly, just because an acknowledgement of a Speed Post is bearing his (A-7) signatures by itself does not lead to any inference incriminating against him. We can not loose sight of the fact that invariably letters/ correspondence from the postal departments are received, or some times the correspondences are handed over by the post-man, at the place of the addressee in the normal course of transactions even if the person has no concern with the subject matter.
624. Secondly, the response letter to the said communication received by the DDA on behalf of the said Mr. Anil Kumar under his signatures at Q-1145 & Q-1146 on Ex PW50/E & Ex PW50/D does not match with the specimen signatures of accused Anil Kumar (A-7) despite the fact that the said letters were sent for analysis to the GEQD expert and no positive opinion was expressed in that regard.
625. Another similar Speed Post dated 10.12.2003 is also alleged to have been received at the aforesaid address of the accused at Rohini, Delhi. Admittedly, the acknowledgement receipt does not bears the signatures of accused Anil Kumar (A-7).
626. It was contended that the said post was received by his wife but there is no evidence on record to substantiate the CBI Case No. 191/19 131 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) said fact or the fact that the signatures at point A and writing at point B on Ex PW15/D are in the hands of accused Anil Kumar (A-7) or his wife.
627. PW-15 Sh. Manoj Kumar Jain who was working as Accountant/Operations in one of the Firm Safe Finlease Pvt Ltd of which accused Anil Kumar and one Sh. Sushil Kumar were the Directors, was examined by the prosecution but he also failed to identify his signatures and handwriting on the aforesaid exhibit Ex PW15/C & Ex PW15/D with any positive conclusion.
628. PW-15 was cross-examined by the prosecution and in the cross-examination he stated further that he had very rarely seen accused Anil Kumar (A-7) writing and signing as the documentation work of the company was mainly done by Sh. Sushil Kumar under his signatures and writing.
629. Thirdly, even otherwise, as discussed hereinafter the report/opinion of the GEQD expert Ex PW52/B can not be given much weight-age and evidentiary value as it remained unsubstantiated by trustworthy 'Reasons for Opinion'' Ex PW52/D thereto.
630. Further, IO PW-61 also admitted in his cross examination that "it is correct that signatures appearing on the membership application, membership register, proceeding register, audit report and nomination forms etc, (except the two noted above) does not bears the signatures of accused Anil Kumar."
631. IO failed to recollect if any inquiry regarding the signatures of the persons appearing before the RCS Officials on CBI Case No. 191/19 132 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) behalf of the Societies, which appears to be in response to a question whether he had made enquiries regarding the persons/agents representing the Societies and habitually appearing before the RCS Officials or whether their signatures were taken to match with the disputed signatures on record.
632. It may also be noted that applications for memberships of the subsequent false members including that of accused Anil Kumar Ex PW2/N-24 to PW2/N-2/65 (D-27) were sent to CFSL for analysis (signatures and handwriting) Q-141 to Q-249, and importantly not only the signatures and writing on the said documents were not found matching with the signatures /handwriting of accused Anil Kumar (A-7), his own writing and signatures were also not found matching on the Membership application filed allegedly in his name.
633. Other signatures appended on the documents in his name as the "Secretary" of the Society were also not found matching with his specimen signatures. Implying thereby, that his own name and details have been misused by someone and his signatures have been forged on said documents.
634. DW-4 ( accused Shakir Hussain A-6) at one instance stated that when Sh. Mayank Goswami, Sh. Ashwani Vig and Sh. Anil Kumar approached him for the first time to get the Society revived Sh. Tehseem Haider PW-2 and Sh. Mohd Abid (PW-5) were also present with him. But PW-2 and PW-5 completely denied having met with accused Anil Kumar (A-7) or the fact that these aforesaid accused persons had approached them for revival of the Society.
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635. Besides that, it is the constant stand of the accused Shakir Hussain (A-6) that they had decided to get the Society revived through Sh. Mayank Goswami and Sh. Ashwani Vig and the documents of the Society were also handed over to Sh. Mayank Goswami in that regard.
636. And surprisingly both PWs Sh. Mayank Goswami (PW-3) and Sh. Ashwani Vig (PW-4) have denied the case of prosecution and the specific allegations against the accused persons including present accused Sh. Anil Kumar (A-7).
637. Both denied having known accused Anil Kumar (A-
7) or having introduced him with accused Shakir Hussain (A-6) for taking the membership of the Society or even otherwise.
638. They both witnesses, PW-3 & PW-4, have consistently stated that it was Sh. P.P. Wadhwa ( since deceased) who was introduced by them to accused Shakir Hussain (A-6) for the revival of the Society, and what understanding reached between them, they were not privy to that nor they were aware about it.
639. I am also surprised how and on what basis or under which provisions Sh. Mayank Goswami and Sh. Ashwani Vig have been cited as witnesses in the present case when un- disputedly their names had surfaced in the preliminary inquiry and were specifically named in the FIR registered subsequent to that. At best they could have been the witness of the case after turning 'approver' in the given facts of the case.
640. Another factor may be noting that by making them a simple witness in the case, the prosecution has scored a self goal CBI Case No. 191/19 134 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) wherein the connecting link between one set of accused persons and another accused persons who came into picture subsequently was left in wide open.
641. Further, it is settled position of law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully proved and as such circumstances must be conclusive in nature. All the circumstances should be complete and there should be no gap in the chain of evidence.
642. A useful reference be made to the decision of Hon'ble Supreme Court Padala Veera Reddy Vs. State of A.P. & Ors. (AIR 1990 SC 79 ) wherein it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :-
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of CBI Case No. 191/19 135 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
643. That few bits here and few bits there can be of no help to the case of prosecution. In the case at hand the prosecution has failed to establish the complete chain of circumstances to lead to any positive inference qua the guilt of accused A-6 & A-7 to demonstrate that they were part of the conspiracy or that they were instrumental in fabricating the records of the Society.
644. It is settled law that suspicion, however, strong, can not take the place of proof beyond reasonable doubt. An accused can not be convicted on the ground of suspicion no matter how strong it is. Thereby, accused Shakir Hussain (A-6) & Anil Kumar (A-7) are entitled to be given benefit of doubt.
Role of accused Ashwani Sharma (A-8) & accused Naveen Kaushik (A-9) :
645. Allegations against Sh. Ashwani Sharma and Sh. Naveen Kaushik are that they in furtherance of the conspiracy have forged number of documents of the members of the Society to fabricate the records.
646. Prosecution has mainly relied upon the testimony of GEQD Expert in support of their case against these two accused persons. That is the only piece of evidence against them.
647. In terms of the analysis / GEQD report of expert Sh. Sujay Saha, (PW-52) exhibited as Ex PW52/B (D-36) large CBI Case No. 191/19 136 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) number of disputed signatures have been attributed to A-8 Sh. Ashwani Sharma and Sh. Naveen Kaushik (A-9).
648. As per his opinion dated 10.10.2006 para 4 Ex PW52/B, the GEQD expert has opined that the person who wrote blue enclosed writings stamped and marked as S-239 to S- 293 ; S-538 to S-599 ; S-600 to S-851 i.e. accused Ashwani Sharma (A-8) also wrote the red enclosed questioned writing/signatures i.e. Q-5,Q-7,Q-14,Q-24,Q-48... Q-1135, Q- 1138 & Q-1141.
649. Similarly, in terms of para no. 2 of his opinion specimen handwriting/signatures S-1 to S-60, S-64 to S-238 & S-294 to S-529 of Sh. Naveen Kaushik have been attributed with the disputed questioned/writings enclosed with red ink i.e. Q-1, Q-10, Q-13, Q-19 to Q-23, Q-26 ......................., Q-1004 to Q- 1013, Q-1022 & Q-1023.
650. On the other hand, accused have not only disputed the GEQD opinion, but 'specimen signatures' so relied by prosecution and expert are also denied raising various objections/contradictions in the testimony of specimen witnesses i.e. PW-47 and PW-55.
651. GEQD report/opinion unworthy of credit :-
652. PW-52 Sh. Sujay Saha government examiner appeared before the court and proved his opinion which is exhibited Ex PW52/B, wherein in terms of his report Para no. 2 number of questioned signatures and handwriting have been attributed to accused Naveen Kaushik (A-9), and as per Para no.4 the disputed signatures/handwritings on various documents have CBI Case No. 191/19 137 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) been assigned to accused Ashwani Sharma (A-8).
653. But relevant to note is the fact that his opinion is not duly supported with the contemporaneous "reasons for opinion". His opinion is dated 10.10.2006 whereas the "reasons for opinion" was produced by PW-52 during his examination in court on 25.01.2019.
654. The "reasons for opinion" so filed belatedly was objected by the learned defence counsel on the grounds that they were false and fabricated documents.
655. PW-52 admitted in his cross-examination that he had taken the print of the said reasons for opinion after the the receipt of the summons in the present case in the year 2019.
656. In the cross examination he admitted that he was not the GEQD in the year 2006.
657. In his voluntary statement he admitted that he started examining the documents in the year 1989, when he joined the office of GEQD as Assistant Central Intelligence Officer-I, whose duties were only to conduct preliminary examination of documents to frame a preliminary opinion.
658. PW-52 conceded to the fact that he had not mentioned about the "reasons for opinion"' in his opinion so furnished in the year 2006 Ex PW52/B (D-36), nor had he informed the investigating IO/SP CBI concerned about the fact of his preparation of "reasons for opinion" or to say that he shall produce them lateron.
659. He also admitted that his computer was probably CBI Case No. 191/19 138 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) replaced once by his office during this time i.e. till the time he took out the printouts from his computer in 2019. Which implies that the data "reasons for opinion" stored by him in the year 2006, if believed it to be true, same remained stored as a document in the computer system for about 13 years or so and during which his computer was also replaced by his department, as per his own statement.
660. Herein this court is in agreement with the submissions advanced by the learned Amicus Curiae appearing on behalf of accused A-8 and A-9 since the "reasons for opinion"
were a printouts taken from the computer after a gap of 13 years or so, it ought and must have been duly supported by certificate under Section 65-B of the Evidence Act stating the essential requirements and the facts thereto.
661. Further, there is no date mentioned on the "reasons for opinion: which further creates doubt regarding the testimony of PW-52 of these being prepared at the time when the opinion was furnished by him in the year 2006.
662. Thereby, it can not be said that 'the opinion for reasons' is free from any infirmity, and the possibility of distortion and manipulation can not be ruled out.
663. And in absence thereof, accused persons can not be held guilty simply on one liner opinion that the questioned documents/writings were found matching with the specimen handwriting and signatures of both the accused persons.
664. Specimen Signatures of accused (A-8) & (A-9) are also under cloud.
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665. Both the accused persons have denied their signatures/writings on the specimen sheets.
666. Prosecution has examined two witnesses PW-47 and PW-55 in support thereof.
667. PW-47 Sh. V.K. Sangal deposed that being Asstt. Engineer in MCD, he joined the investigation of the case and visited Tihar Jail where specimen handwriting and signatures of two accused persons namely Sh. Ashwani Sharma on 55 pages (S-239 to S-293) (D-31) Ex PW47/A and Sh. Naveen Kaushik on 236 pages (S-294 to S-529)(D-32) Ex PW47/B were obtained in his presence.
668. But during his cross-examination number of ambiguities have surfaced which discredit the testimony of this witness.
669. He was not aware about the name of the CBI officials who had taken him to the Tihar Jail. He was also not aware about the name of the CBI Official to whom he contacted when he reached CBI office. He was not aware how much time was taken by accused Naveen Kaushik (A-9) in giving the specimen signatures.
670. More importantly, he had also not seen and verified the identity of accused Naveen Kaushik (A-9) when the specimen signatures were taken, as he testifited that "the CBI officials had told him that the person giving specimen is Naveen".
671. Similarly with respect to accused Ashwani Sharma (A-8), witness was also not aware in which Jail number and who CBI Case No. 191/19 140 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) had taken him to Tihar Jail to be witness to the specimen signatures.
672. He was not aware about the time when he reached Tihar Jail or the time when he left the Jail. Nor was he aware about the date on which he went to Tihar Jail. He stated that they remained inside the jail for half an hour, but there are 291 specimen sheets on which number of specimen signatures & writings were taken separately of each accused on that day.
673. And interestingly, the testimony of PW-47 is demolished by the information revealed in a RTI filed on behalf of accused (A-9), wherein the factum of him being lodged in Tihar Jail from 01.07.2016 to 31.07.2016 was sought for and it was revealed that accused (A-9) was not lodged in the concerned Tihar Jail no.4, when the alleged specimen signatures of him are stated to have been taken.
674. His statement is also belied by the fact, as admitted and reflected from the specimen sheet exhibited as Ex. PW- 47/B, that there is no endorsement of the concerned Supdt Jail which invariably are attested and verified by the concerned Supdt. whenever the documents are executed by any UTP lodged in the concerned Jail.
675. Testimony of PW-55 Sh. Virender Gulati is also doubtful for the reason that in terms of the Certified copy of order dated 24.11.2006 in case FIR bearing no. RC-SIJ-2006-E- 0002, he was in judicial custody from 21.07.2006 to 24.11.2006, and whereas his said specimen are stated to have been taken in the CBI office in his presence.
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676. Further, he also seems to be a stock witness wherein he admitted that he is cited as a witness for CBI in three cases including this one as a specimen witness to the accused persons.
677. Further, Prosecution has also not established the identity of the accused Ashwani Sharma (A-8) and accused Naveen Kaushik (A-9) as the persons who had given the signatures and handwriting on the aforesaid specimen sheets. Again the identity of the accused persons was also not proved during the examination of these witnesses in the court.
678. Further, the identify of accused persons especially that of accused Ashwani Sharma of giving specimen handwriting and signatures also becomes more important and relevant to the case at hand in view of the fact that there was / is another person by the name Ashwani, who was also a suspect in the case and named as an accused in the FIR so registered.
679. So, to rule out the chances of any confusion and dispute of identify of accused Ashwani Kumar it was necessary for the prosecution to bring on record positive and reliable evidence to show that the specimen sheets were given by this accused Ashwani Sharma (A-8) and not by any other person of his namesake.
680. All these facts so revealed and his evasive answers during the cross-examination do raises a cloud of him being a witness to the specimen signatures of accused (A-8 & A-9).
681. Thus, in the light of above noted facts and observations made thereto I would say that the prosecution has miserably failed to prove the charges so levelled against accused CBI Case No. 191/19 142 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) Ashwani Sharma (A-8), and accused Naveen Kaushik (A-9), and accordingly they are entitled to be acquitted in the present case.
Sanction :-
682. Nextly, in so far as Sanction to prosecute qua accused Sh. Narender Kumar (A-4) and Sh. P.K. Thirwani (A-10) is concerned, PW-57 deposed that he was posted as Controller of Accounts and had sanction to prosecute accused Sh. Narender Kumar after perusing the entire charge sheets as well as the documents alongwith the same and applying his mind to the entire material.
683. Similarly, PW-18 Sh. R. Narainaswami retired IAS deposed that in the year 2006-2007, he was posted as Chief Secretary of Govt of NCT of Delhi and after going through all the material placed before him he accorded Sanction for prosecution of accused P.K. Thirwani Ex PW18/A.
684. There is no dispute that these two officials/ witnesses PW-52 and PW-18 were not competent to remove the accused persons from the Services respectively.
685. PW-18 was not cross-examined by accused. And during cross examination of PW-52 nothing has come on record to reflect that Sanction was accorded in a mechanical manner without application of mind.
686. Thus, the contention of the accused persons that the Sanction Order qua them are invalid or non-est in the eyes of law can not be sustained at all. I see no irregularity or error or omission in the Sanction Order which can result in failure of CBI Case No. 191/19 143 of 145 CBI vs. Narain Diwaker etc (Imamia CGHS) justice in the given facts of the case. { useful Reference in this regard can be made to State of Bihar Vs. Raj Mangal Ram Criminal Appeal No. 709-710 of 2010 decided on 31.03.2014 & Neera Yadav Vs. CBI, (2006) 2 All.L.J. 442 & Dharambir Khattar Vs. CBI (2009) 159 DLT 636 }.
DECISION:-
687. Having regard to the above detailed discussion and the conclusion arrived at,
(i) Accused Sh. Narender Kumar (A-4) and Sh. P.K. Thirwani (A-10) stands convicted for the offences punishable under Section u/s 120-B IPC r/w Section 15 r/w Section 13(2) & Section 13(1)(d) of P.C.Act, 1988 and the substantive offences under Section 15 r/w section 13(2)/13(1)(d) of the P.C. Act.
(ii) Accused Narain Diwakar (A-1), Sh. N.S. Khatri (A-
3), Sh. Rakesh Kumar (A-5), Sh. Shakir Hussain (A-6), Sh. Anil Kumar (A-7), Sh. Ashwani Sharma (A-8) and Sh. Naveen Kaushik (A-9) stands acquitted of all the charges so framed against them in the present case.
688. Let the accused Sh. Narender Kumar (A-4) and Sh. P.K. Thirwani (A-10) be heard on the quantum of Sentence on 01.04.2024.
689. The bail bonds of the accused Narain Diwakar (A-1), Sh. N.S. Khatri (A-3), Sh. Rakesh Kumar (A-5), Sh. Shakir Hussain (A-6), Sh. Anil Kumar (A-7), Sh. Ashwani Sharma (A-
8) and Sh. Naveen Kaushik (A-9) stands cancelled. Their respective Sureties are discharged accordingly.
(i) Further they are directed to furnish Personal
CBI Case No. 191/19 144 of 145
CBI vs. Narain Diwaker etc (Imamia CGHS)
bond/Surety Bonds in the sum of Rs.10,000/- each in
compliance of Section 437-A Cr.P.C
Announced in the open court Digitally
signed by
ANIL ANIL ANTIL
on this 28th Day of March, 2024.
ANTIL
Date:
2024.04.03
(ANIL ANTIL)
17:09:04
+0530
SPL. JUDGE (PC ACT): CBI-15
ROUSE AVENUE DISTRICT COURT
NEW DELHI/28.03.2024
CBI Case No. 191/19 145 of 145