Delhi District Court
Cbi vs Narain Diwakar (Anchal Cghs) on 12 September, 2023
IN THE COURT OF SH. RAJESH KUMAR GOEL SPECIAL
JUDGE (PC ACT) (CBI)-16,ROUSE AVENUE DISTRICT
COURTS, NEW DELHI.
CBI Vs. Narayan Diwakar etc.
(Anchal CGHS)
CBI No. 121/19
CNR No. DLCT110005402019
Central Bureau of Investigation
Versus
1. Narayan Diwakar (A-1)
s/o Late Sh.Chhati Lal
r/o G 30 Masjid Moth, New Delhi
2. Jitender Singh Sharma
( Proceedings already stands abated vide order dated
06.09.2021)
3. Raman Verma
s/o Late Sh. Jagan Nath Verma
r/o F-444, Karam Pura, New Delhi-110015,
4. Sanjeev Bharti
s/o Late Shri Mohindra Bharti Madan,
r/o Block C-4C, Pocket-14, Flat No. 113,
Janakpuri, New Delhi-110058
5. Sudarshan Kumar Singhal
( Proceedings already abated vide order dated 15.05.2007)
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 1 of 233 )
CBI No. 121/19
CNR No.DLCT110005402019
6. Satish Gupta
(convicted vide judgment dated 14.08.2013)
7. Vinod Gupta
( proceedings already abated vide order dated 13.07.2022)
8. Ashutosh Pant
s/o Sh. Mahesh Chandra Pant
r/o A-1303,Plot NO.9 A, Ahinsa Khan II,
Exotica Elegance, Indirapuram,
Ghaziabad, 201014
Date of Institution : 30.11.2006
Date of Arguments: 18.08.2023
Date of Judgment : 12.09.2023
JUDGMENT
Introductory Facts
1. Pursuant to the order dated 02.08.2005 of the Hon'ble High Court of Delhi passed in "Civil Writ Petition Number 10066/2004", while expressing the concern that there is a nexus between the builders, office of the Registrar of Cooperative Societies and DDA and they have taken over the Cooperative Movement in Delhi to make undue profit, directed the CBI to conduct a thorough investigation in respect of 135 Cooperative Group Housing Societies (CGHS). The Anchal Cooperative Group Housing Society Limited (hereinafter referred to as "The Society") was CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 2 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 amongst one of the 135 such cooperative group housing societies.
2. Pursuant to the said order of Hon'ble High Court dated 2.8.2005, a Preliminary enquiry vide PE.BD1/2005(E) 0004 was registered against six societies including the Society on 08.8.2005 by CBI, BS & FC, New Delhi and Enquiry was taken up. On the basis of the outcome of the said Preliminary enquiry a regular case RC 1 A/2006/ACU-IV/CBI/New Delhi was registered against the accused persons on the allegations that during the period between 2002-2003, the accused persons entered into a criminal conspiracy with an intent to cheat DDA and in furtherance of the said criminal conspiracy private accused persons connived with the officials of RCS, NCT of Delhi who recommended for allotment of land to the DDA on the basis of forged and false documents. It is further alleged that the revival of the Anchal CGHS Ltd was made possible by the active connivance of the RCS officials who were a part of the conspiracy.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 3 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 FACTUAL MATRIX
3. The society was registered with the office of Registrar Cooperative Society (in short 'RCS') vide registration number 655 (Group Housing) dated 22.09.1983, with 63 Promoters members. The registered office of the society was shown as 7, Sethi Bhavan, Rajendra Place, New Delhi.
4. Sh. G.P.S Angroola and Shri J.K Marwaha were the President and the Secretary of the Society respectively at the time of registration of the society. Subsequently, the society was wound up by an order dated 20.12.1989 of Shri Satish Mathur, the then Deputy Registrar, Office of RCS Delhi for the reasons that the society had been lying defunct, had not submitted any intimation to the RCS and had not got its account audited since registration.
5. It is the case of the prosecution that the society was revived by an order dated 14.2.2003 of Narayan Diwakar (A-1), the then RCS Delhi on the basis of forged and false documents.
CBI Vs. Narayan Diwakar & Ors.
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6. How the revival order dated 14.2.2003, passed by Narayan Diwakar (A-1) was based upon forged and false documents, the CBI has investigated the matter and the chain of events connecting all the accused persons to the offences, as mentioned in the chargesheet are as under:
i. Sh. D.K Gupta, in the capacity of the President of the society sent a letter dated 25.12.2002 to the office of RCS with a request to change the address of the society from 7. Rajendra Place, New Delhi to Flat No. 6A, Sector 7, Pocket I, Dwarka, New Delhi. J.S Sharma (A-
2) on receipt of the said letter called the file of Anchal CGHS from the West Zone to the South West Zone.
During the investigation, it was revealed that D.K Gupta , who is one of the original members of the society did not make any such correspondence with the office of RCS regarding change of the office address of the society.
ii. According to the prosecution, the signature of Sh. D.K Gupta on the letter dated 25.12.2002 were forged by Vinod Gupta ( A-7, proceedings already abated) and the address of Flat No. 6 A, Sector -7, Pocket-1 Dwarka was actually the office address of another accused Satish Gupta (A-6, already stands convicted) .
iii. It appears that the file pertaining to the society was transferred from the West Zone to the South West Zone. Immediately thereafter, accused Sudershan Kumar CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 5 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Singhal (A-5) who represented himself as Secretary of the society, submitted a letter dated 14.01.2003 on behalf of the society making a request for the revival of the society. He also submitted the list of 90 members including 27 new enrollments. The new enrollments were stated to have been inducted by the Managing Committee vide a resolution dated 25.07.1984. Accused Sudershan Kumar Singhal (A-5) also submitted a copy of the proceedings of the General body meeting held on 15.12.2002 but the fact of the matter was that accused Sudershan Kumar Singhal(A-5) was not even one of the promoter members of the society as it is evident from the list of 63 members available on the file.
iv. Accused Raman Verma(A-3), who was posted as a dealing assistant during that time in the office of RCS, processed the letter dated 14.01.2003 and the file was placed before accused J.S Sharma (A-2), who was posted as Assistant Registrar on 20.01.2003. Then the file was forwarded to accused Narayan Diwakar (A-1) for approval on 22.01.2003. After approval, on 22.1.2003, notices were issued to the President/Secretary of the society for hearing of the matter before the RCS on 04.02.2003.
v. On 04.02.2003, accused Narayan Diwakar (A-1) took up the matter. Accused Satish Gupta (A-6) appeared in the capacity of the Vice President of the society before the RCS though he was not even a member of the society. The concerned zone was directed by the Registrar to verify the membership of the members as well as to ascertain the election and Audit position and the matter was adjourned by the Registrar for 11.2.2003.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 6 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 vi. On 6.2.2003, 10.02.2003 and 11.02.2003, accused Sudershan Kumar Singhal (A-5), in the capacity of Secretary of the society, attended the office of RCS and also produced documents of the society to the dealing assistant Raman Verma (A-3) and J.S Sharma (A-2, proceedings stand abated), the then AR (SW).
vii. The file was processed by the dealing assistant Raman Verma (A-3) and Sh. J.S Sharma (A-2, proceedings stand abated) on 11.2.2003 with a note mentioning the names of 63 promoter members and 27 new enrollments. They also recommended that all the formalities are complete and matter was placed with recommendation for revival of the society. It was also observed that all the accounts and records have been checked.
viii. On 11.02.2003, accused Satish Gupta (A-6), in the capacity of Vice President of the society again appeared before the Registrar Narayan Diwakar (A-1) and accused Narayan Diwakar (A-1), the then Registrar reserved the case for orders despite the fact that the name of accused Satish Gupta (A-6) was not even there in the list of 90 members of the society which has been put up by accused Raman Verma (A-3).
ix. On 14.02.2003, accused Narayan Diwakar (A-1) passed the said order of the revival of the society and accused Sanjeev Bharti(A-4) was appointed to conduct the elections of the Society.
x. In pursuance of the said order, accused Sanjeev Bharti A(-4), who had been appointed as Election Officer , submitted a report dated 27.03.2003 stating that the General Body Meeting was called by him on 23.3.2003 whereby one Sh. Bhuvneshwar Garg was elected as the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 7 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 President of the society, Shri Sushil Kumar Singhal as Vice President, and Sh. Satish Kumar Aggarwa, Shri Sudharshan Kumar Singhal( A-5, proceedings stand abated), Shri Subhash Rusgati, Smt. Madhu Chaudhary and Smt. Raj Rani Gupta were elected as the members of the Managing Committee.
xi. Thereafter, on 18.02.2003, accused J.S Sharma (A-2, proceedings stand abated), the then AR sent a list of 90 members to the AR(Policy) for onward transmission of the same to the DDA for allotment of land. Accordingly, Sh. Yogi Raj, the then AR(Policy) sent a letter dated 27.02.2003 alongwith a list of 90 members to the DDA for allotment of land to the society.
xii. According to the prosecution, conspiracy was hatched by the accused persons to get revived the said society on the basis of the forged documents and to get alloted the land from the DDA by taking benefit of the old seniority of the society and this is how the revival order dated 14.02.2003, came to be passed by accused Narayan Diwakar (A-1)
7. It is further alleged that in pursuance of the said criminal conspiracy, Sh. Dharmander Singh Rana, who has been shown in column no.12 of the chargesheet, got a membership register prepared by accused Ashutosh Pant (A-8). Thereafter, Sh. Dharmender Singh Rana then sold those documents to Vinod Gupta (A-7, proceedings stand abated) who subsequently sold those documents to Shri Sudershan CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 8 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Kumar Singhal (A-5, proceedings stand abated). It is stated that the forgery committed by accused Ashutosh Pant (A-8) has been confirmed by the report of the Government Examiner of Questioned Documents (GEQD).
8. It is also alleged that the proceedings dated 15.12.2002 and 23.03.2003 were prepared by accused Vinod Gupta (A-7, proceedings stand abated) and in these proceedings a new Managing Committee was shown to have been elected. The signatures of various members, who were shown to have been attended the above said meeting as well as those who have been shown elected to the Managing Committee, has been forged by accused Vinod Gupta (A-5, proceedings stand abated) and Satish Gupta (A-6, already stand convicted) and this has been confirmed by the GEQD opinion.
9. It is also the case of the prosecution that the affidavit filed on behalf of the 90 members, who were shown in the final list submitted to the DDA for allotment of land, were also forged by the above named CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 9 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 accused persons.
10. According to the prosecution, Sh. G.P. S Angrool and J.K Marwaha, who were the original elected President and Secretary of the Society, were not even aware about the above persons, who were shown to have been elected in the new Managing Committee of the society. The original record pertaining to the society was found in the possession of Sh. J.K Marwaha and it was seized from him during the course of investigation.
11. The allegations against the accused Narayan Diwakar(A-1) are that the society was wound up on 20.12.1989; the minimum verification regarding the locus standi and the credentials of the persons appearing before him as the officer bearer of the society was not ensured by him as their names were even not found mentioned in the list of members ; none of the so called officer bearers of the Managing Committee of the society were out of the members of the Managing Committee who were there at the time when the society was wound up; the affidavit of 27 CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 10 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 new alleged enrollments were submitted only in the year 2003 whereas they have been shown enrolled in the year 1984; there was no intimation about their enrollments in the year 1984 to the office of RCS; President and the Secretary of the society never appeared before him as evident from the order of revival, which indicates that revival order was passed upon the false facts.
12. Allegations against the accused Raman Verma (A-3) are that during the relevant period, he was posted as Dealing Assistant in the office RCS and all the forged records of the society were placed before him for verification by Sudershan Kumar Singhal (A-5, proceedings stand abated), a fake office bearer of the society. It is alleged that accused Raman Verma (A-3) willfully did not point out the large scale forgeries on the said documents which were quite apparent as there was striking difference between the signatures of the promoter members existing on the original affidavits submitted at the time of revival; he also did not point out serious irregularities in the 27 enrollments who were shown to have been enrolled in the year 1984 but CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 11 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 their affidavits were submitted in the RCS office only in the year 2003 at the time of revival which clearly shows the active participation of accused Raman Verma (A-3) in the commission of offence including criminal conspiracy while performing the official duties.
13. The allegations against accused Sanjeev Bharti (A-4) are that during the relevant time he was posted as Stenographer, in the office of RCS Delhi. Accused Narayan Diwakar (A-1) vide revival order dated 14.2.2003, appointed accused Sanjeev Bharti (A-
4) as the Election Officer to conduct the election of the Anchal CGHS within 2 months of the revival. Accused Sanjeev Bharti (A-4) submitted a false report dated 27.03.2003 showing that the election for the managing committee of the society was conducted on 23.3.2003 whereas the said report and the proceedings of the meeting dated 23.3.2003, which bear signatures of accused Sanjeev Bharti (A-4), are entirely false as the various members who have been elected to the Managing Committee of the Society denied having attended any such meeting and the GEQD report also CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 12 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 established that the signatures of various members on the proceedings have been forged by accused Sanjeev Bharti (A-4),
14. The allegations against accused Sudershan Kumar Singhal (A-5, proceedings stand abated) are that he falsely represented himself as the Secretary of the Society in the RCS office on 06.2.2003, 10.02.2003 and 11.02.2003 and got the society revived on the basis of forged documents; he himself forged the signatures of various members on the general body meeting register containing the proceedings of 15.12.2002 and 23.2.2003, the affidavits and the other documents submitted in the RCS office for the purpose of revival. The forgery committed by Accused Sudershan Kumar Singhal (A-5, proceedings stand abated) stands established as per GEQD report also.
15. The allegations against accused Satish Gupta (A-6, already stand convicted) are that he falsely represented himself as the Vice President of the society before the office of RCS on 04.02.2003 and 11.02.2003 and he also forged the signatures of various members CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 13 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 on the general body meeting register containing the proceedings of 15.12.2002 and 23.03.2003, the affidavits and other documents submitted in the RCS office for the purpose of revival and the forgery committed by him has been confirmed by the GEQD report.
16. The allegations against accused Vinod Gupta (A-7, proceedings stand abated) are that he prepared the proceeding register, affidavits and other documents submitted in the RCS office by forging the signatures of various members of the society including the proceedings of 15.12.2002 and 23.03.2003 in a new proceeding register with an intent to get the society revived. The forgery committed by him has been confirmed by the GEQD Report also.
17. The allegations against accused Ashutosh Pant (A-8) are that he forged signatures of members on the proceedings register and forgery has been confirmed by the GEQD report.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 14 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 FRAMING OF CHARGES
18. Subsequently, vide detailed order dated 21.02.2011, Ld. Predecessor of this Court decided the charges against the accused persons. On 28.2.2011, accused persons were charged as under:
1 Narayan Diwakar Under section 120 B r/w 420/511 r/w 419/468/471 IPC and Sec. 15 r/w 13(2) r/w 13 (1) (d) of PC Act,1988 AND substantive offences u/s 13(1)(d) punishable u/s13 (2) r/w sec. 15 of Prevention of Corruption Act 1988 2 Jitender Singh Sharma Under section 120 B r/w 420/511 r/w 419/468/471 IPC and Sec. 15 r/w 13(2) r/w 13 (1) (d) of PC Act,1988 AND substantive offences u/s 13(1)(d) punishable u/s13 (2) r/w sec. 15 of Prevention of Corruption Act 1988 Under section 120 B r/w 420/511 r/w 419/468/471 IPC and Sec. 15 3 Raman Verma r/w 13(2) r/w 13 (1) (d) of PC Act,1988 AND substantive offences u/s 13(1)(d) punishable u/s13 (2) r/w sec. 15 of Prevention of Corruption Act 1988 CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 15 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 4 Sanjeev Bharti u/s 120 B r/w 420/511 r/w 419/468/471 IPC and Sec. 15 r/w 13(2) r/w 13 (1) (d) of PC Act,1988 AND substantive offences u/s 13(1)(d) punishable u/s13 (2) r/w sec. 15 of Prevention of Corruption Act 1988 5 Sudharshan Kumar Singhal proceedings already stands abated vide order dated 15.5.2007 6 Satish Gupta Under section 120 B r/w 420/511 r/w 419/468/471 IPC and Sec. 15 r/w 13(2) r/w 13 (1) (d) of PC Act,1988 AND substantive offences u/s 420 r/w 511 IPC, 468, 471 IPC.
7 Vinod Gupta Under section 120 B r/w 420/511 r/w 419/468/471 IPC and Sec. 15 r/w 13(2) r/w 13 (1) (d) of PC Act,1988 AND substantive offences u/s 420 r/w 511 IPC, 419, 468, 471 IPC.
8 Ashutosh Pant Under section 120 B r/w 420/511 r/w 419/468/471 IPC and Sec. 15 r/w 13(2) r/w 13 (1) (d) of PC Act,1988 AND substantive offences u/s 420 r/w 511 IPC, 468, 471 IPC.
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19. All the accused persons pleaded not guilty to the aforesaid charges so framed and claimed trial.
20. During the pendency of the present case, accused Satish Gupta (A-6) moved an application on 14.8.2013, stating that he wants to plead guilty to the offences and accordingly, Ld. Predecessor of this Court recorded the statement of the accused to this effect and consequently he was convicted and sentenced by the Ld. Predecessor of this Court vide order dated 14.8.2013.
ABATEMENT OF PROCEEDINGS AS AGAINST THE ACCUSED JITENDER SINGH SHARMA (A-2) , SUDERSHAN KUMAR SINGHAL (A-5) AND VINOD GUPTA (A-7)
21. Here it is pertinent to mention that during the pendency of the present case, accused Jitender Singh Sharma(A-1), accused Sudershan Kumar Singhal (A-5) and Vinod Gupta (A-7) expired and Proceedings against them were abated vide order dated 06.09.2021, 15.5.2007 and 13.07.2022 respectively, of the Ld. Predecessor of this Court.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 17 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 PROSECUTION WITNESSES
22. In order to prove its case, the prosecution has examined 71 (Seventy one) witnesses. For the sake of convenience, the witnesses have been categorized in different groups. Although, the detailed testimonies of the prosecution witnesses shall be discussed herein after in the subsequent para's, wherever necessary, however, it would be appropriate to discuss in brief the testimonies of these witnesses to have an overview of the nature and kind of evidence which has come on the record.
The witnesses whose names have been shown in the final list forwarded to DDA for Draw of lots but they claimed that they were not the members of the society-Fake Members
23. As per the case of the prosecution, the society was registered originally with the 63 members. 27 members were allegedly enrolled in the year 1984 but the information was given in 2003. It is the case of the prosecution that fake members were shown in the final list submitted to the office of RCS. Some of the aforesaid members have been examined by the prosecution who CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 18 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 have basically stated that they never became the members of the society.
24. These witnesses have categorically stated that they never became the member of the society; they never remained the office bearer of the Managing Committee of the Society at any point of time; denied having executed any affidavits allegedly filed on their behalf; denied verification certificates; denied having attended any meeting of the society including meetings dated 15.12.2002 and 23.3.2003; denied their signatures on the membership register etc. The witnesses so examined by the prosecution in this regard are as under:
i. PW2 Mr. Satish Aggarwal
ii. PW3 Ms. Raj Lata -
iii. PW4 Sh. Gaurav Singhal
iv. PW5 Sh. Rajan Singhal
v. PW6 Sh. Surinder Kumar Sharma
vi. PW7 Sh. Bhuwaneshwar Garg
vii. PW8 Sh. Gian Chand Goyal
viii. PW9 Sh. Amit Kumar Gupta
ix. PW10 Sh. Ankur Goenka
x. PW11 Sh. Jai Prakash Gupta
xi. PW28 Sh. Niket Saxena
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xii. PW34 Sh. Preeti Singhal
xiii. PW36 Sh. Annu Singhal
xiv. PW37 Smt. Ansu Goel
xv. PW61 Subhash Rustogi
xvi. PW65 Sh. Sushil Kumar Singhal
25. PW3 Raj Lata, as such, has not categorically denied that she never became a member of the society. Rather, she stated that she was a member of the society but when certain documents i.e affidavit, verification certificate, proceedings of meetings etc were shown to her, she stated that she does not remember whether she had signed the said documents or not.
26. PW3 Raja Lata, PW4 Gaurav Singhal, PW5 Rajan Singhal, PW6 Surider Kumar Sharma, PW7 Bhuwaneshwar Garg, PW8 Gian Chand Goyal, PW9 Amit Kumar Gupta, PW10 Ankur Goenka, PW11 Jai Prakash Gupta, PW34 Preeti Singhal, PW36 Annu Singhal and PW61 Subhash Rustogi were not cross examined by the accused persons, who are presently facing trial, despite the opportunity being given to them.
CBI Vs. Narayan Diwakar & Ors.
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27. PW2 Satish Aggarwal has been cross examined on behalf of the accused Sanjeev Bharti (A-4) and not by rest of the accused persons despite the opportunity being given to them.
28. PW28 Niket Saxena has been cross examined on behalf of the accused J.S Sharma (A-2, proceedings already stand abated) but not by rest of the accused persons.
29. PW65 Sushil Kumar Singhal has been cross examined on behalf of the accused Sanjeev Bharti (A-4) and accused Ashutosh Pant(A-8), but he was not cross examined by rest of the accused persons despite the opportunity.
30. Even the cross examination of the prosecution witnesses, as stated herein above, on behalf of the accused J.S Sharma (A-2), accused Sanjeev Bharti (A-4) and accused Ashutosh Pant (A-8) was just a symbolic cross examination and only one or two questions were asked from the said witnesses.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 21 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Original/Promoter member of the society
31. According to the prosecution, originally the society was registered with 63 promoter members. Out of the above 63 promoter members, some of them have been examined as prosecution witnesses. These witnesses have deposed about the fact that the society was registered with the office of RCS vide application ExPW12/A; the decision for registration of the society was taken in the meeting dated 09.08.1983 ExPW12/B; the proceeding register maintained by the society is collectively ExPW12/C: Bye Laws of the society are collectively ExPW12/D; the intensive inquiry proforma ExPW12/E was submitted to the office of RCS; register of members pertaining to Anchal maintained by the Society is ExPW12/F-1 and another register of members pertaining to Anchal CGHS is ExPW12/F-2. Some of the witnesses have deposed that they did not attend the meetings of the society including the meetings dated 15.12.2002 and 23.3.2003. The details of the aforesaid witnesses are as under:
i. PW12 G.P.S Angroola
ii. PW13 J.K Marwah
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iii. PW14 Babu Ram
iv. PW17 Bhupinder Singh
v. PW18 Savita
vi. PW19 Ashok Sachdeva
vii. PW20 Sanjeev Aggarwal
viii. PW21 V.K Arya
ix. PW22 Romy Kumar
x. PW23 Prem Singh
xi. PW24 Vinay Kumar
xii. PW25 Pooran Singh
xiii. PW26 Ashok Kumar
xiv. PW27 Surender
xv. PW30 Man Singh
xvi. PW31 Sohan Lal
xvii. PW40 Devender Gupta
xviii. PW55 Parvesh
xix. PW57 Veena Bhatia
xx. PW66 Urmila Bhatia
xxi. PW68 Rita Bhatia
32. PW12 G.P.S Angroola and PW55 Parvesh Chander Khanna have been cross examined on behalf of the accused J.S Sharma (A-2, proceedings stand abated) but not by rest of the accused persons despite the opportunity being given to them.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 23 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
33. PW21 V.K Arya, PW22 Romy Kumar, PW23 Prem Singh, PW24 Vinay Kumar, PW25 Pooran Singh, PW26 Ashok Kumar, PW27 Surender and PW68 Rita Bhatia were cross examined on behalf of the accused Vinod Gupta (A-7, proceedings stand abated ) but not by rest of the accused persons despite the opportunity being given to them.
34. PW30 Man Singh was cross examined by accused Narayan Diwakar (A-1), J.S Sharma (A-2, proceedings stand abated) and accused Vinod Gupta (A-7, proceedings stand abated) but not by rest of the accused persons despite the opportunity being given to them.
35. PW 31 Sohan Lal was cross examined on behalf of accused accused Sanjeev Bharti (A-4) and accused Vinod Gupta (A-7, proceedings stand abated) but not by rest of the accused persons despite the opportunity being given to them.
36. PW 40 Devender Gupta and PW66 Urmila Bhatia were cross examined by accused Sanjeev Bharti (A-4) but not by the rest of the accused persons despite CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 24 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 opportunity.
37. PW57 Veena Bhatia was cross examined on behalf of accused Ashutosh Pant (A-8) only and not by other accused persons.
38. PW13 J.K Marwah, PW14 Babu Ram, PW17 Bhupinder Singh, PW18 Savita, PW19 Ashok Sachdeva and PW20 Sanjeev Aggarwal were not cross examined by the accused persons despite the opportunity being given to them.
The witnesses who became the members of the society later on i.e during the year 2003-2005.
39. There are certain persons, who claim that they become the member of the society not at the time of its formation or registration but subsequently on various dates. These persons were examined as prosecution witnesses, which are as under:
i. PW 1 Ms. Madhu Chaudhary
ii. PW29 Sh. Satish Aggarwal
iii. PW32 Sh. Sarabjeet Singh
iv. PW33 Sh. Sanju Chaudhary
v. PW35 Sh. Ravi Jaitley
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 25 of 233 )
CBI No. 121/19
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vi. PW38 Sh. Yashpal Gupta
vii. PW39 Sh. Shyam Sunder Gupta
viii. PW49. Sh. Bhupinder Singh
ix. PW51 Sh. Manjeet Singh
x. PW52 Sh. Ashok Kumar
40. PW29 Satish Aggarwal, PW33 Sanju Chaudhary, PW38 Yashpal Gupta, PW39 Shyam Sunder Gupta, PW49 Bhupinder Singh and PW52 Ashok Kumar were not cross examined by the accused persons despite the opportunity being given to them.
41. PW1 Madhu Chaudhary was cross examined on behalf of accused Sanjeev Bharti (A-4) but not by other accused persons despite the opportunity being given.
42. PW51 Manjeet Singh was cross examined on behalf of accused Vinod Gupta (A-7, proceedings stand abated) but not by rest of the accused persons despite the opportunity being given to them.
43. PW32 Sarabjeet Singh was cross examined on behalf of accused Ashutosh Pant (A-8) but not by rest of the accused persons despite the opportunity being given to CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 26 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 them.
44. PW35 Ravi Jaitley was cross examined on behalf of accused Narayan Diwakar (A-1) and accused J.S Sharma (A-2, proceedings stand abated) but not by rest of the accused persons despite the opportunity being given to them.
Witnesses from the office of Registrar Cooperative Society.
45. The office of RCS is the controlling and supervising Government authority over the Co-operative Group Housing Societies. It is a matter of fact that a file pertaining to each of such societies is maintained in the office of RCS from the stage of its formation and registration and all communications made with the society are placed in such a file by the office of RCS.
46. In the present case also, the allegations against the accused persons are that they submitted a false list of members which was based upon forged and fake resignations and enrollments. The file was processed in the office of RCS. Certain officials/officers during the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 27 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 relevant time who had actually processed the file pertaining to the present society, were either posted as dealing assistants, or Assistant Registrar, and finally all proposals were approved by the Registrar, RCS.
47. The prosecution has examined the relevant officials/officers posted in the office of RCS during the relevant time who had dealt with the file pertaining to the present Society. These witnesses were examined to prove the proceedings, notings and certain communications between the office of the RCS and the society,as maintained in the office of RCS. In this regard, prosecution has examined following witnesses from the office of RCS:
i. PW53 Sh. Narender Singh Khatri : He was posted as Reader to the office of RCS during the period from May, 2000 to September,2005. He deposed that he had dealt with the file pertaining to the present society in the year 2003. He proved certain notings/notices/orders etc . pertaining to the society from ExPW53/A-1, ExPW53/A-2 and from ExPW53/B-2 to ExPW53/J. PW53 was cross examined on behalf of the accused J.S Sharma(A-2) against whom proceedings have already been abated vide order dated CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 28 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 06.9.2021. PW53 was also cross examined by accused Narayan Diwakar (A-1). Accused Raman Verma (A-3) has adopted the cross examination as done on behalf of accused A-1 and A-2 but was not cross examined by other accused persons despite the opportunity.
ii. PW54 Sh. Raj Bhushan Chauhan : He was posted in the office of RCS from March, 2002 to September,2005 as LDC. He is a witness to the proceedings vide which the file pertaining to the present society was transferred to South West Zone. In this regard, he has proved the note dated 09.01.2003 ExPW54/B. PW54 was not cross examined by the accused persons despite opportunity being given to them.
iii. PW67 Sh. Yogi Raj : He was working as Assistant Registrar in the office of RCS during the period from 2000 to 2005 and in the year 2003, he was controlling the charge as AR of North West Zone. He is also witness to the transfer of file from North West Zone to South West Zone and in this regard has proved certain communications dated 01.01.2003 ExPW67/A, dated 18.2.2003 ExPW67/B and dated 27.02.2003 ExPW67/C. PW67 was cross examined on behalf of the accused J.S Sharma against whom proceedings have already been abated vide order dated 06.9.2021. PW67 was also cross examined by accused Narayan Diwakar (A-1) but was not cross examined by other accused persons despite the opportunity.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 29 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Sanctioning Authority
48. In the present case, three public servants namely Narayan Diwakar (A-1), Raman Verma (A-3) and Sanjeev Bharti (A-4) were also made accused persons. During the relevant time, all these accused persons were working in the office of RCS. At the conclusion of the investigation they have also been chargesheeted. Since they were the public servants, during the investigation requisite sanction u/s 19 of Prevention of Corruption Act, 1988 was obtained by the IO, except as against accused Narayan Diwakar (A-1) as he had already retired and the same was filed on record. The authorities which had accorded the sanction to prosecute the above named accused persons, have been examined as prosecution witnesses, which are as under:
i. PW15 Sh A.Majumdar : During the year 2006- 2007, he was posted as Secretary cum Director, Department of Social Welfare, Govt of NCT of Delhi. He deposed that on receipt of the report from CBI and after considering all the facts, he accorded the sanction to prosecute accused Raman Verma (A-
3). He proved the sanction order dated 28.09.2006 as ExPW15/A. PW15 was cross examined on behalf of the accused Raman Verma (A-3) but not on behalf of the rest of the accused persons.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 30 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 ii. PW16 Sh. Rajneesh Tingal: He was posted in the Ministry of Home Affairs during the period from 2005 to 2007 as Under Secretary. He is a witness basically to prove the sanction accorded by Sh K.S Sugthan, Joint Secretary, MHA against accused J.S Sharma (A-2) (proceedings stands abated) and proved the sanction order dated 25.09.2006 ExPW16/A. PW16 was cross examined on behalf of the accused J.S Sharma (A-2 proceedings stands abated) but not by the rest of the accused persons.
iii. PW59 Sh. Vijay Kumar : He was posted as a Director of Education, GNCT Delhi during the year 2006. He deposed that he had carefully gone through the report submitted by the CBI, gist of the statement of the witnesses and evidence and other documents along with annexures and accorded sanction u/s 19 of PC Act, 1988 for prosecuting the accused Sanjeev Bharti (A-4), who was working as a stenographer. He proved the sanction order dated 05.10.2006 as ExPW59/A. PW59 was cross examined on behalf of accused Sanjeev Bharti (A-4) but not by the rest of the accused persons.
Witness from DDA
49. The role of DDA with regard to the co-operative group housing society comes into picture when a request is made by the society through the office of RCS for allotment of land. Once the land is allotted the last action CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 31 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 on the part of the DDA is generally to get executed Draw of Lots in the presence of their officers. For this purpose, at the first instance, the society would send a list of freezed members to the office of RCS with the request to onward transmission of the same to the DDA for allotment of land and subsequently another list is sent for Draw of Lots. But in the present case, it is not the case of the prosecution that land was ever alloted to the society by the DDA.
50. As stated earlier, a file is maintained by the office of RCS pertaining to the society, in a similar way a file is maintained pertaining to each of such societies separately by DDA also and all proceedings and communications pertaining to the society are placed in that file. The officer who dealt with the file of present society during relevant time in the office of DDA, has been examined as prosecution witness as PW48 Sh. Virender Singh.
51. PW48 Sh. Virender Singh was posted as an Assistant in the office of Deputy Director (GH) DDA and Sh.S.S Mathur was posted as Assistant Director (GH), CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 32 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 DDA. PW48 deposed that he is well conversant with the handwriting and signature of S.S Mathur as he worked with him and had seen him signing and writing official documents during his duties. He deposed that the letter dated 27.2.2003, alongwith list of 90 members of the present society was received in their office and it was marked to him. He further deposed that the said letter is mark PW48/A and the list of members received with the said letter is ExPW48/B. PW48 was cross examined by accused Narayan Diwakar (A-1) and accused J.S Sharma (A-2, proceedings stands abated) but not by the rest of the accused persons.
Expert witness.
52. During the investigation certain specimen and admitted writings/signatures were sent to GEQD for examination by the CBI to establish the case of forgery and the role of accused persons who committed the forgery. The questioned documents alongwith the specimen and admitted writings and signatures were examined by an expert, who was examined as prosecution witness as PW69.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 33 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
53. PW69 Sh. Venugopala Rao was Assistant Director & Scientist C, CFSL, Hyderabad. He deposed that the documents pertaining to the present case were received in the office of GEQD, Hyderabad, from the CBI, for examination and opinion, vide letter dated 13.06.2006 Ex. PW 69/A which were later on marked to him. He further deposed that the documents contained questioned documents as per Annexure-I, specimen documents as per Annexure -II, admitted documents as per Annexure -III and the questionnaire as per Annexure- IV, which are ExPW69/B to E respectively.
54. PW69 further deposed that subsequently also documents were received by his office from CBI vide letter dated 21.07.2006, ExPW69/F. The documents which were sent through this letter was mentioned in Annexure-I ExPW69/G and questionnaire is Annexure -II EPW69/H. He further deposed that after completion of his examination, he arrived at the opinion CH-210/2006 ExPW69/I and same was forwarded to the CBI vide letter ExPW69/J and the reasons for arriving at his opinion were sent to the CBI through registered post vide letter dated 04.04.2008 ExPW69/L. PW69 was cross examined by CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 34 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 accused Ashutosh Pant (A-8) and accused Vinod Gupta (A-7, proceedings stand abated) but not by rest of the accused persons despite opportunity being given to them.
Formal Witnesses
55. One of the allegations against the accused persons is that some of the accused persons have forged the signatures and documents. To establish the same, during the investigation, IO has taken the specimen handwritings/ signatures of certain persons including accused persons. While taking the said specimen handwritings/signatures, some officials/officers from different departments were called to be witnesses to such proceedings by the CBI. Those persons, so summoned, by the CBI have been examined as prosecution witnesses which are as under:-
i. PW41 R.B Ram : During the year 2006, he was posted as UDC in store branch, Northern Railway, Baroda House, Delhi, He is a witness to the taking over of specimen handwriting/ signatures of accused Satish Gupta (A-6, already stand convicted) along with another witness Krishan Gopal (PW43) vide proceedings ExPW41/A. PW41 was not cross examined by the accused persons despite opportunity.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 35 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 ii. PW42 Ravi Kant: During the year 2006, he was working as a Technical Assistant in the Department of Official Language, Ministry of Home Affairs. He along with Anil Srivastava (PW44) is said to have visited the residence of the accused Satish Gupta alongwith the CBI search team where CBI Inspector Bharat Singh had interrogated accused Satish Gupta (A-6, convicted) in their presence and had conducted the search of the house of accused Satish Gupta (A-6, convicted). PW42 further deposed that he had also visited the house of accused Sudershan Kumar alongwith CBI team and from the said house various documents pertaining to the society were recovered, which were seized vide seizure memo dated 04.01.2006 ExPW42/B and the search list is ExPW42/A. Since, PW42 was not supporting the case of the prosecution, therefore, he was cross examined by Ld. PP for CBI.
PW42 was not cross examined by the accused Narayan Diwakar (A-1) , J.S Sharma (A-2), Raman Verma (A-3) and Sanjeev Bharti (A-4) despite opportunity.
PW42 was cross examined on behalf of accused Vinod Gupta (A-7) and accused Ashutosh Pant adopted the cross examination as done on behalf of accused Vinod Gupta (A-7).
iii. PW43 Krishan Gopal: During the year 2006, he was working as a clerk in store Branch, Northern Branch, Delhi. He along with Sh. R.B Ram (PW41) is a witness to taking over of specimen handwriting and signatures of accused Satish Gupta (A-6, convicted) vide proceedings ExPW41/A. CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 36 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 PW43 was not cross examined by the accused persons despite opportunity.
iv. PW 44 Anil Srivastava: During the year 2006, he was working as Investigator in the Department of Official Language, MHA, Delhi. He is also witness to the search carried out at the house of accused Sudershan Kumar (A-5, proceedings stand abated), on 04.01.2006 . He deposed that one Sanjay Thukral has handed over the records of the society to the CBI team which was taken into possession vide seizure memo ExPW42/B and the search list is ExPW42/A. PW44 was not cross examined by the accused persons despite opportunity except accused Ashutosh Pant (A-8).
v. PW45 S.B Shukla : During the year 2006, he was posted as LDC in the office of EPFO, Vigilance Department, He is a witness to the taking over of specimen signatures/ handwritings of certain persons including some of the accused persons. PW45 deposed that he has endorsed the taking over of specimen handwritings/signatures sheets pertaining to accused Vinod Gupta (A-7) ExPW45/A, accused Sanjeev Bharti (A-4) ExPW45/B, Subhash Rustogi ExPW45/C, Sushil Kumar Singhal ExPW45/D, accused Satish Guputa (A-6, convicted ) ExPW45/E, accused Sudershan Kumar Singhal (A-5) ExPW45/F, Satish Aggarwal ExPW45/G and Bhuvneshwar Garg ExPW45/H. PW45 was cross examined on behalf of accused Sanjeev Bharti (A-4) and accused Vinod Gupta (A-7) but not by rest of the accused persons despite opportunity.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 37 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 vi. PW46 Vishwa Mitr Bhagi: He was posted as Administrative Officer in the Registrar of Co- operative Societies, Delhi. He is a witness to taking over of specimen handwriting/signatures of accused Ashutosh Pant (A-8) and accused Raman Verma (A-
3) ExPW46/A and ExPW46/B respectively.
PW46 was cross examined on behalf of the accused Ashutosh Pant (A-8) and accused Raman Verma (A-3) has adopted the same. Rest of the accused persons have not cross examined PW46 despite opportunity.
vii. PW47 Yashpal Singh : During the year 2006, he was posted as Tehsildar, Delhi Cantt, South West, Kapeshera New Delhi. He is another witness to taking over of specimen handwriting/signatures of Subhash Russtogi ExPW45/C and Sushil Kumar Singhal ExPW45/D .
PW47 was not cross examined by the accused persons despite the opportunity.
viii. PW50 Bijender Singh : He is also witness to taking over of specimen handwriting/signatures of accused Vinod Gupta (A-7) ExPW45/A, accused Sanjeev Bharti (A-4) ExPW45/B, accused Satish Gupta (A-6) ExPW45/E , accused Sudershan Kumar Singhal (A-
5) ExPW45/F, Satish Aggarwal ExPW45/G and Bhuvneshwar Garg ExPW45/H and Ashwani Sharma ExPW50/A. PW50 was cross examined by accused Sanjeev Bharti (A-4) and Vinod Gupta (A-7) but not by rest of the accused persons.
ix. PW56 Harish Chand Meena : He deposed that during the year 2006, he was posted as LDC in the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 38 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Enforcement Directorate, New Delhi. He is also a witness to taking over of Specimen handwritings/signature pertaining to Sanjay Thukral ExPW56/A(colly), Madhu Chaudhary ExPW1/D (colly) , Satish Chander ExPW56/B (Colly) and accused Sudershan Kumar Singhal (A-5, proceedings stand abated) ExPW56/C. PW56 was not cross examined by the accused persons despite opportunity.
x. PW58 Sanjay Thukral: During the year 2005-2006, he was working under accused Sudershan Singhal(A-
5). He deposed that certain documents pertaining to the society were handed over to him by accused Sudershan Singhal (A-5) in the year 2005. The said documents were seized by the IO vide seizure memo dated 04.01.2006 ExPW42/B. PW58 was not cross examined by the accused persons despite the opportunity.
xi. PW71 Govind Singh Rawat: During the year 2006, he was posted in AGCR as Senior Auditor. He is also witness to the taking over of specimen handwriting/signatures from S-666 to S-675 ExPW70/Q (colly) and S-676 to S-696 ExPW PW70/R (colly).
PW71 was not cross examined by the accused persons despite opportunity.
Witnesses from CBI
56. In the present case, the FIR was registered pursuant to the order of Hon'ble High Court dated CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 39 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 02.08.2005. Initially, a preliminary enquiry was conducted by the CBI officer and at the conclusion of the preliminary enquiry, a regular case was registered. During the investigation certain documents were received and seized from the office of RCS and also from the office of DDA. Search was also carried out at the residence of accused Satish Gupta (A-6, convicted) and accused Sudershan Kumar Singhal( A-5). From the stage of carrying out preliminary enquiry till filing of chargesheet, the officers from CBI, who one way or another, were part of the investigation have been examined as prosecution witnesses, which are as under:
i. PW60 Ghanshyam Rai : During the year 2005, he was posted as DSP in BS& FC, CBI, Delhi. Pursuant to the order of Hon'ble High Court, dated 02.08.2005, he carried out the preliminary enquiry of present case also, during which he said to have collected various documents vide production-cum-
receipt memo dated 09.08.2005 ExPW60/A, receipt memo dated 22.09.2005 ExPW60/B, receipt memo dated 10.08.2005 ExPW60/C and receipt memo dated 10.01.2006 ExPW60/D. He deposed that after completion of preliminary enquiry, he recommended for registration of a regular case against the accused persons.
PW60 was cross examined on behalf of accused Narayan Diwakar (A-1) and J.S Sharma CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 40 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 (A-2, proceedings stand abated) but not by the rest of the accused persons despite opportunity.
ii. PW62 C.S Prakash Narayanan : During the year 2005, he was posted as Inspector CBI, EOW-1, New Delhi. He deposed that he had received documents from P. Joshi, Assistant Registrar (SW), Office of RCS vide seizure memo dated 05.08.2005 ExPW62/A and handed over the documents pertaining to the society to Ghanshyam Rai (PW60) vide receipt memo dated 09.08.2005, ExPW60/A .
PW62 was cross examined by accused Vinod Gupta (A-7, proceedings stand abated) but not by rest of the accused persons.
iii. PW63 S.L Garg : During the year 2005, he was posted as Inspector, CBI, EOW-II, New Delhi. He deposed that vide letter dated 08.08.2005 Mark PW63/A, various documents were forwarded to CBI from DDA and he had received the said documents including the documents pertaining to the present society. He further deposed that the documents pertaining to the present society were handed over to Sh. G. S Rai by him vide memo dated 10.08.2005 ExPW61/C. PW63 was cross examined by accused Vinod Gupta (A-7, proceedings stand abated) but not by the rest of the accused persons.
iv. PW64 Vishal : In the year 2005, he was posted as Sub-Inspector, CBI, BS & FC, Delhi. He deposed that vide memo dated 22.09.2005 ExPW60/B, he had received a file pertaining to society from the office of RCS and the same was handed over to Sh. Ghanshyam Rai(PW60), DSP.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 41 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 PW64 was not cross examined by the accused persons despite opportunity.
v. PW70 Bharat Singh : He is the main IO of the present case who carried out the investigation and has filed the chargesheet. Testimony of PW70 Bharat Singh would be discussed in the succeeding para's of the judgment, wherever relevant.
PW70 was cross examined by the accused persons.
57. Thereafter, vide order dated 16.07.2022, prosecution evidence was closed by the Ld. Predecessor of this court.
STATEMENTS OF ACCUSED PERSONS UNDER SECTION 313 Cr PC
58. Statements of accused persons u/s 313 Cr.PC were recorded on 08.02.2023, by this Court.
59. During the statement recorded u/s 313 CrPC, to most of the questions put to accused Narayan Diwakar (A-
1), the answers given by him were either " I have no knowledge" or " pertains to content of noting " except answers given differently to few questions. Out of the questions whose answers were given differently by the accused CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 42 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Narayan Diwakar (A-1), basically pertain to the evidence which has come on record during the deposition of PW54 Raj Bhushan Chauhan and PW67 Yogi Raj and the same were answered as: "pertains to contents of noting for which relevant noting and documents may be seen ."
60. When the accused Narayan Diwakar was asked as to why this case is against him (Q.624), he replied that " This is a false case against me because of the business and due to the failure to follow the law by the prosecuting agency .".
Accused Narayan Diwakar (A-1) opted to lead evidence in his defence and has examined Sh. Saroj Chander Pradhan as DW3.
61. In reply to the question whether he wants to say anything else ( Q.627), he replied:
" In the present case the Liquidation proceedings were never finalized. By the operation of law (Rule 105 DCS Rules) the winding-up proceedings stood automatically terminated after three years (maximum period). As per Rule 105 of the Delhi Cooperative Rules 1973 there is a provision for the deemed termination of the winding-up proceedings (maximum 3 years after the passing of the winding- up order) after which the Registrar is bound to cancel the winding-up orders by passing an order to this effect in view of the Judgment of the Division CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 43 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Bench of the Hon'ble Delhi High Court (VIKAS CGHS v. RCS etc.). I complied with the said orders of the Hon'ble Delhi High Court.
I was appointed as the Registrar Cooperative Societies (RCS) Delhi under S.3 of the Delhi Cooperative Societies Act, 1972. At the time of the passing of the order(s) of cancelling the winding-up I was aware of the judgment delivered by the Double Bench of the Hon'ble Delhi Court in the Civil Writ Petition No. 1767 / 1986 case entitled "VIKAS COOPERATIVE GROUP HOUSING SOCIETY LTD. V. RCS "(decided on 21st Nov. 1986).
Secondly it is submitted that cancelling the winding-up order of the society had nothing to do with the availability or the verification of the records. The only aspect that was to be taken into account was the provision of Rule 105 of the Delhi Cooperative Societies Rule, 1973. Therefore the act(s) performed by me were done in absolute good faith taking all the necessary steps as provided under the law. The copy of the judgment in "VIKAS CGHS v. RCS" is enclosed herewith. There is no circumstance appearing against me. Therefore I may kindly be acquitted.
It is also pertinent to mention that the CBI has neither obtained sanction to prosecute under s.197 Cr.P.C. nor under S.19 of the PC Act. The said two sanctions operate in distinct mechanisms and were mandatory even for a retired public servant. As per the newly amended law i.e. Prevention of Corruption Act, (amended till 2018) applicable even to the present case (pending trial) the sanction under S.19 CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 44 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 of the PC Act is now mandatory even for the retired public servants. Needless to mention that the provision of S.13(1)(d) of the old PC Act, 1988 has now been repealed. The present case is devoid of merits and also suffers the discrepancy due to the later amendments of 2018 which are applicable to the present pending case.
Furthermore, it will be relevant to add that Dr. Kamini Lau the Ld. Spl. Judge : CBI had referred by way of reference under S.395 Cr.P.C. raising the question of scope & applicability vis-à-vis S.19 of the P.C. Act in respect of retired servants in the pending cases where the sanction under S.19 of the PC Act has not been taken in respect of the retired public servants. Thus the reference of the matter relating to the applicability of the newly amended PC Act (2018 amendment) is still pending before the Division Bench of Hon'ble Delhi High Court.
The Hon'ble Madras High Court in the matter "M.Soundararajan v. State" Crl.A.(MD) No.488 of 2018 has observed: "14. By amending paragraph 8 in Part A of the Schedule to the Prevention of Money laundering Act, 2002 certain offences under the prevention of corruption Act,1988 are included to the PMLA,2002. Since, offence analogous is already in statute prior to the amendment, Chapter IV A and section 19 of the Prevention of Corruption (Amendment) Act, 2018 alone will fall away from protection given under Article 20 (1) of the Constitution and therefore will have application to the pending cases either under investigation or pending trial after investigation."
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 45 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Charges of conspiracy levelled under section 120(B) IPC are not sustainable against me. During my tenure as RCS, Delhi from 2001 to 2004 the entire RCS office was fully computerised by launching its own website on which about 10 lakh data was uploaded to cover to various information pertaining to about 5000 Cooperative Societies including the group housing societies with details of management committee of all societies, particulars of individual members, its election and audit position were given for the information to all concerned and the affected citizens of Delhi. A wide publication was also given to this website through local newspapers and electronic media. There was facility for any type of enquiry complaint from the affected / interested persons of the public in order to speedy redressal of their complaints and grievances. The RCS office was given the distinction of completing the gigantic task of computerization in a fixed time schedule. For this achievement, a letter of appreciation was given by the Chief Secretary of the Govt. of NCT of Delhi. It is therefore emphasized that in the face of such transparency in the working of the department there cannot be any scope for ant conspiracy of any kind either with any official of the department or the persons outside. It is established factor that transparency and conspiracy cannot go together.``
62. Similarly, the answers given by accused Raman Verma (A-3), during the statement recorded u/s 313 CrPC, to most of the questions put to him were either " I have no knowledge" or "It is a matter of record" except answers given CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 46 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 differently to a few questions.
63. To the questions regarding registration and formation of the society, he replied that "formation of Anchal CGHS Ltd. is a matter of record " or "submission of Bye Laws of the society in the office of RCS is a matter of record " or "submission of the intensive enquiry performa is a matter or record" and " winding up of the society by the office of RCS is a matter of record".
64. To the questions regarding non-existence of the office of the society at Flat no.6 A, Sector 7, Pocket 1, Main Entrance, Dwarka, New Delhi, he replied " The office of the Anchal CGHS Ltd. was existing at Flat No.6A. Sector-7, Pocket-1, Main Entrance Dwarka, New Delhi as per evidence on record. The request for revival of the society in question dated 14.01.2003, Ex.PW65/I-2 (D-17) and addressed to the Hon. Registrar, Co-operative Societies, Sansad Marg, New Delhi was received from the said address. Further, letter dated 22.01.2003 (page 3 of D-17) of Reader to RCS, addressed to the President/Secretary of the Society was sent at the same address and the revival order dated 14.02.2003 of the then RCS, marked PW-53/J (pages 32/C to 323/C of D-2) also mentions the same address as registered address of the society. Regarding the rest, I have no knowledge.".
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 47 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
65. In respect of the questions regarding taking over of his specimen writings/signatures, accused Raman Verma(A-3) replied that his signatures were never taken in the presence of PW46 Vishwa Mittel Bhagi and in this regard PW70 Bharat Singh has recorded false statements of witnesses. Regarding the opinion of expert given by PW69 P.Venugopala, accused Raman Verma (A-3) replied that opinion and the reasons are incorrect and devoid of any scientific reasoning as the reasons were fabricated later on by the CBI.
66. Regarding the questions pertaining to the sanction obtained by the IO to prosecute the accused, he replied that PW15 A. Majumdar was not competent to give sanction ExPW15/A as he was not competent to remove him from services as per the conduct and service rules.
67. When the accused Raman Verma (A-3) was asked as to why this case is against him (Q.624), he replied that " This is a false case against me based on incorrect facts.". Accused Raman Verma opted to lead evidence in CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 48 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 his defence and has examined one Sandeep as DW1.
68. In reply to the question whether he wants to say anything else ( Q.627), he replied:
" There is no evidence on record either in the form of provisions of DCS Act, Rules or circulars issued thereunder which made it obligatory on me as a dealing assistant to personally verify the genuineness of the members of the society and the genuineness of the documents produced by the society.
No recommendations were made by me in my notings placed at pages 12/N to 18/N in D-2 and I had simply put up the matter in the file for decision by the competent authority. I was at the lowest rank of hierarchy in the office of RCS. No witness has deposed during trial to the effect that I put up any false note. It is the responsibility of the society to furnish the correct list of members and documents to the RCS office. There is no evidence on record that I had any prior knowledge of the documents being forged, if any.
There is no evidence on record that I have gained any pecuniary benefit or that myself and any of my family members were members of any CGHS. There is no evidence on record to suggest that I was party to any criminal conspiracy. I had acted bona- fide and in good faith.
My sanction for prosecution u/s 19 of P.C. Act, 1988 is invalid as the same was granted by an incompetent authority as well as without application of mind. Sanction for my prosecution for IPC offences was not obtained u/s 197 Cr.P.C., thus, vitiating the trial against me ab-initio.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 49 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 I have been falsely charge-sheeted in the case without there being any incriminating evidence against me. I have been falsely implicated in the case.
69. Similarly, the answers given by accused Sanjeev Bharti (A-4), during the statement recorded u/s 313 CrPC, to most of the questions put to him were either either " I have no knowledge" or "It is a matter of record" except answers given differently to few questions.
70. To the questions regarding registration and formation of the society, he replied that "formation of Anchal CGHS Ltd. is a matter of record " or "submission of Bye Laws of the society in the office of RCS is a matter of record " or "submission of the intensive enquiry performa is a matter or record" and " winding up of the society by the office of RCS is a matter of record".
71. In respect of the questions regarding taking over of his specimen writings/signatures, accused Sanjeev Bharti (A-4) replied that the specimen handwritings/signatures have been manipulated as no such proceedings were held in respect of him. Regarding the opinion of expert given by PW69 P.Venugopala, accused CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 50 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Sanjeev Bharti (A-4) replied that opinion and the reasons are incorrect and devoid of any scientific reasoning as the reasons were fabricated later on by the CBI.
72. Regarding the questions pertaining to the sanction obtained by the IO to prosecute the accused, he replied that sanction for his prosecution was sought from incompetent authority without application of mind and without going through any document. It is an invalid sanction order.
73. When the accused Sanjeev Bharti (A-4) was asked as to why this case is against him (Q.624), he replied that " This is a false case against me based on incorrect facts.". Accused Sanjeev Bharti opted to lead evidence in his defence and has examined one Dharmbir Gosain as DW2.
74. In reply to the question whether he wants to say anything else ( Q.627), he replied:
"I am innocent . That I did not deal with the file relating to revival of the society in question at any point of time. From the date of receipt of letter dated 25.12.2002 along with photocopy of managing committee meeting dated 13.11.2002 (page 105 to CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 51 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 107 of D-2) Ex.PW40/D (colly) intimating about change of registered address of the society from West Zone to South West Zone of RCS office and dated 14.01.2003 Ex. PW65/I-1 & 2 (page 2 & 4 of D-17) requesting for revival and approval of list of members of the society respectively till the revival order dated 14.02.2003 Marked PW53/J (pages 321/C to 323/C of D-2), passed by the then RCS, Delhi, I was not in the picture at all. In fact, it is an admitted case of the CBI that I came into picture only after revival of the society in question vide revival order dated 14.02.2003 Marked PW53/J. Moreover, the allegation of the case of the CBI is also the revival of the society on the basis of forged documents.
That the alleged election dated 23.03.2003 Ex.PW1/C was not conducted in order to help the revival of Anchal CGHS Ltd. but was conducted only after it's revival as by the time the alleged election dated 23.03.2003 was held and the report to its effect was submitted on 27.03.2003 Ex.PW70/A4/X1, the society had already been revived with immediate effect vide order dated 14.02.2003 by the then RCS, Delhi Marked PW53/J (pages 321 to 323/C of D-2). That as can be seen from the revival order dated 14.02.2003 Marked PW53/J (D-2), the society was revived with immediate effect and conduct of election of the Managing Committee of the society in question was ordered only keeping in view the principle of natural justice and cooperative spirit, and was not a precondition to the revival of the said society. [(last para of the revival order-page 321/C of D-2).
That DDA, the land-owning agency in case of CGHSs, acts only on the approved/freezed list of members of a CGHS which the office of RCS sends with the recommendation for allotment of land, subject to availability of land and fulfilling certain CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 52 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 conditions laid down by the authority. It has nothing to do whether the election in the CGHS is held or not at the time of allotment of land.
That conduct of alleged election dated 23.03.2003 Ex.PW1/C had no bearing either on the revival order dated 14.02.2003 or on sending of freezed/approved list of members to DDA ExPW48/B (D-22) vide letter dated 27.02.2003 Mark PW48/A and PW67/C (D-22) with the recommendation for allotment of land, as the revival order dated 14.02.2003 had already been acted upon before the alleged election.
That in the present case, the society was revived by the order of the then RCS, Delhi on 14.02.2003 Marked PW53/J (pages 321 to 323/C of D-2) and the approved freeze list of 90 members of Anchal CGHS Ltd. was forwarded by Assistant Registrar (S/W) to Assistant Registrar (Policy) vide his letter dated 18.02.2003 Ex.PW67/B (page 330/C of D-2) for its onward transmission to DDA. The Assistant Registrar (Policy), RCS vide letter dated 27.02.2003, Mark PW48/A and Ex.PW-PW67/C (D-22, pages 1 to 4) forwarded the aforesaid approved freeze list of 90 members to DDA with the recommendation for allotment of land to the society in question.
That no land was allotted by the DDA to the society in question after its revival.
That in case of a CGHS registered with the Office of RCS, Delhi, the last act of the office of RCS is to send the approved/freezed list of members of the society to DDA for allotment of land and thereafter nothing remains to be done on the part of office of RCS so far as allotment of land to the society is concerned. In the present case, the role of RCS office ended after the freeze list of members was forwarded to DDA vide letter dated 27.02.2003 Mark PW48/A and Ex.PW-PW67/C (D-22, pages 1 to 4). , CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 53 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 much earlier to the alleged election dated 23.3.2003 ExPW1/C That there is no evidence on record during trial which would suggest that the alleged election report dated 27.03.2003 Ex.PW1/C, (pages 7 to 10 of D-5) had ever been used for any purpose whatsoever by the office bearers of the society or by office of RCS or by DDA.
That I acted bona-fide and in good faith on the basis of a list of members provided by the society. Since it was a unanimous election and there was no contest, the declaration of the names of the elected members was only a formality.
That neither there was any requirement nor there was any infrastructure to verify the genuineness of the members of the society present in the meeting. The society is responsible for the genuineness of the members and documents of the society.
That there is no evidence on record to establish that I accused A-4 had any knowledge about any sort of criminal conspiracy for revival of the society in question, if any, as he was not in picture at all till the revival order was passed by the RCS, as discussed above and even as per the admitted case of prosecution.
That there is no evidence on record to show that I have gained any pecuniary benefit or that myself or any of my family members were members of any CGHS.
That no incriminating material has been recovered from me during the investigation.
That my sanction for prosecution u/s 19 of P.C. Act, 1988 dated 05.10.2006 Ex.PW59/A is invalid as the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 54 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 same was granted by an incompetent authority as well as without application of mind. Sanction for my prosecution for IPC offences was not obtained u/s 197 Cr.P.C., thus, vitiating the trial against me ab- initio.
That I have been falsely charge-sheeted in the case without there being any incriminating evidence against me. I have been falsely implicated in the case.
75. Similarly, the answers given by accused Ashutosh Pant (A-8), during the statement recorded u/s 313 CrPC, to most of the questions put to him were either " I do not know " except answers given differently to a few questions.
76. To the questions regarding the opinion of expert given by PW69 P.Venugopala, accused Ashutosh Pant (A-
8) replied that the opinion given by expert is wrong and erratic and the same is not supported with proper reasoning. However PW69 prepared the reasoning at a later stage when he received summons from this court.
77. When the accused Ashutosh Pant (A-8) was asked as to why this case is against him (Q.624), he replied that " I have been falsely implicated in this case and there is no incriminating material / evidence against me. I had no role to CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 55 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 play in the present society and the investigating officer has falsely implicated me in order to shift the blame of other persons on me so as to exonerate them.". Accused Ashutosh Pant(A-8) opted not to lead evidence in his defence.
78. In reply to the question whether he wants to say anything else ( Q.627), he replied:
"It is a false case against me. I have been falsely implicated in this case by investigating officer without there being any incriminating material against me. I had no role to play in the present society and the investigating officer has falsely implicated me to shift the blame of other persons on me so as to exonerate them."
DEFENCE WITNESSES BY ACCUSED PERSONS By accused Narayan Diwakar (A-1)
79. Accused Narayan Diwakar has examined Sh.
Saroj Chander Pradhan as DW3 in his defence. He deposed that during the period from April 2003 to March,2008, he was posted as System Analyst in the office of RCS and his job was to look after hardware, software, networking of computers and website of the office of RCS. He further deposed that there were the directions to the effect that status of every society is to be CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 56 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 updated regularly and in this regard a wide publicity relating to the launch of the website of RCS was done by publishing in the leading newspaper etc. He further deposed that pamphlets were also distributed during that period and the same are Mark DW3/A. DW3 was cross examined by Ld. PP for the CBI.
By accused Raman Verma (A-3)
80. Accused Raman Verma (A-3) has examined one witness namely Sandeep as DW1, who is working as Junior Assistant in the Irrigation and Flood Control Department, Govt. of Delhi. DW1 produced the file ExDW1/A, pertaining to the sanction accorded in respect of accused Raman Verma (A-3). DW1 was not cross examined by the Ld. PP for the CBI despite opportunity.
By accused Sanjeev Bharti (A-4)
81. Accused Sanjeev Bharti (A-4) has examined Dharmbir Gosain as DW2. DW2 deposed that he is working as a Senior Assistant in the Department of Education, Govt of Delhi and he produced the requisite record ExDW2/2 pertaining to the sanction which was CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 57 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 accorded in respect of the accused Sanjeev Bharti (A-4). DW2 was also not cross examined by Ld. PP for CBI.
SUBMISSIONS MADE ON BEHALF OF THE CBI
82. During the arguments, Ld. PP for CBI has made following submissions:
i. Ld. PP for the CBI has taken me to the facts as mentioned in the charge-sheet and at the very outset submitted that all the accused persons entered into a criminal conspiracy and in furtherance of the criminal conspiracy submitted the forged and false documents to the office of RCS on the basis of which the society was revived.
ii. She stated that the winding up order passed in the year 1989 and after a gap of around 13 years, the society was revived without verifying the genuineness of the documents and the person who produced the documents.
iii. She stated that the person who was claiming to be the member or the office bearers of the managing committee of the society, was never the member of the society and this fact was ignored deliberately and with mala-fide intention by the officers of the office of RCS.
iv. She vehemently argued that in the present case a peculiar mode has been adopted for transfer of the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 58 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 file. She stated that originally the society was registered at the address of Rajendra Nagar which comes under the jurisdiction of West Zone but the alleged new managing committee moved an application in the South West Zone and further stated that the address of the society has been changed and request was made to transfer the file from West Zone to South-West Zone. She stated that even if there was a change of the address, such a request should have been moved in the South Zone and not in the West Zone. She further stated that the process of revival was started even prior to transfer of the file from the West Zone to South Zone.
v. It was further argued that as per the documents submitted at the time of making of the request of revival, it was shown that 27 members have been enrolled in the year 1984 but the office of RCS was never informed neither during the year 1984 nor thereafter till the request was made for revival of the society. This makes it clear that the revival order was passed fraudulently and with ulterior motive.
vi. By explaining the role of each of the accused persons, she submitted that there are sufficient evidence on record indicating involvement of the accused persons. By referring to the testimonies of the prosecution witnesses, it was pointed out that certain persons were shown as the members but when they appeared in the witness box, they denied having become the members of the society.
vii. Ld. PP for the CBI has placed reliance upon following judgments:
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 59 of 233 )
CBI No. 121/19
CNR No.DLCT110005402019
(a) Hema Vs State of Madras , Criminal
Appeal No.31 of 2013, Date of Decision 07-01-2013.
(b) Murari Lal vs State of MP, 1980 AIR 531 SC
(c) State of Police Inspector Vs. Sri T. Venkatesh Murthy, Criminal Appeal No.997 of 2004, Date of Decision 10-04- 2004.
(d) State of Bihar Vs Rajmangal Ram, Criminal Appeal No.708 of 2014, Criminal Appeal No.708 of 2014, Date of Decision 31-03- 2014.
(e) L. Narayana Swami Vs State of Karnataka, Crl Appeal No. 721 of 2016, date of decision 06.09.2006.
(f) Rakesh Kumar & Ors. Vs State Criminal Appeal 19/2007,date of decision 27-08- 2009
(g) K. Satwant Singh Vs The State of Punjab, 1960 AIR 26, 1960 SCR (2) 89
(h) Chandan Kumar Basu Vs State of Bihar, 07 July, 2014, Crl. Appeal No.1359 of 2014.
(i) Harihar Prasad Etc. Vs State of Bihar, 07 September, 1971, 1972 Crl.L.J 707, (1972) 3 SCC 89.
(j) Rakesh Kumar Mishra Vs State of Bihar & Ors. 03.01.2006, Appeal (Crl) 12 of 2005.
(k) Chaudhary Praveen Sultana Vs. State of West Bengal & Ors., SLP (Crl) 2864 of 2007.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 60 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 SUBMISSIONS MADE ON BEHALF OF THE ACCUSED NARAYAN DIWAKAR (A-1)
83. Ld. Counsel for the accused Narayan Diwakar (A-1) has made following submissions:
i. Ld. Counsel for the accused Narayan Diwakar (A-1) submitted that accused Narayan Diwakar, during the relevant time, was posted as Registrar of Cooperative Societies. That being so, prosecution was under obligation to obtain sanction u/s 197 of Cr.P.C against accused Narayan Diwakar(A-1) prior to his prosecution but prosecution has failed to obtain any such sanction.
ii. The file pertaining to the society was dealt by the accused in the capacity of Registrar, therefore, the alleged act had direct nexus with the discharge of his official functions, therefore, sanction u/s 197 CrPC was mandatory, which is not there in the present case.
iii. Ld. Counsel for the accused Narayan Diwakar (A-1) has placed reliance upon following authorities:
(a) A. Srinivasulu Vs The State Rep. By the Inspector of Police, Crl Appeal No. 2417/2010 date of decision 15.06.2023 (SC).
(b) Vikas Co-operative Group Housing Society Ltd Vs. Registrar Co-operative Society and others Civil WP No. 1767/1986 date of decision 21.11.1986 (DHC).
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 61 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
(c) Amal Kumar Jha Vs State of Chhatisgarh and Anothers, CrL Appeal 396/2016 date of decision 26.04.2016 ( SC).
(d) Surenderjit Singh Mand and Anothers Vs State of Punjab and Anothers, Crl Appeal No. 565/2006 date of decision 05.07.2016 (SC).
(e) Anjani Kumar Vs State of Bihar, Crl Appeal No. 413/2000 date of decision 24.04.2008 (SC).
(f) Prof. N.K. Ganguly Vs. CBI New Delhi Crl.
Appeal No. 798 of 2015 date of decision 19.11.2015.
(g) Ashok Mehta & Anrs. Vs. Ram Ashray & Anrs. Crl Appeal No. 980/2004 date of decision 03.09.2004 (SC).
(h) R. Balakrishna Pillai Vs State of Kerala & Anrs, Crl Appeal No. 1742/1995, date of decision 05.12.1995 (SC).
(i) Z.U.Siddiqui Vs Bal Kishan Kapoor & Others, 2005 (82) DRJ 646.
(j) Shreekantiah Ramayya Munipalli Vs State of Bombay, AIR 1955 SC 287.
(k) P.K Pradhan Vs State of Sikkim, Crl Appeal 1118/2000, date of decision 24.07.2001.
(l) Amod Kumar Kanth Vs. Association of Victim of Uphaar Tragedy and Anothers, Crl Appeal No. 1359/2017, date of decision 20.04.2023(SC).
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 62 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 SUBMISSIONS MADE ON BEHALF OF THE RAMAN VERMA (A-3)
84. Ld. Counsel for accused Raman Verma (A-3) has made following submissions:
i. At the very outset, Ld. Defence Counsel submitted that during the course of trial, the prosecution has examined 70 witnesses but none of the prosecution witnesses has deposed anything incriminating against the accused Raman Verma (A-3). There is no evidence indicating that he was ever a party to the criminal conspiracy in any manner in the matter of revival of the society in question.
ii. Ld. Counsel further submitted that the accused Raman Verma, being the dealing assistant in the office of RCS was at the lowest rank of hierarchy and was duty bound to put up the letter dated 14.01.2003 requesting for revival of the society and for approving the list of members, received in the office and marked to him by the AR(SW) on 16.1.2003.
iii. He further submitted that it has come on the record that the file pertaining to the society was dealt in accordance with the provisions of DCS Act,1972 and rules framed thereunder.
iv. The power to prepare the list of members as well as their enrollments and removal lies with the society and there is no provision in the DCS Act to physically verify the list of members received from the society. It was the responsibility of the managing committee to furnish a correct list of CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 63 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 members to the office of RCS.
v. In the present case there was no complaint during investigation about any irregularities in the process of revival of the society and approval of the list of members.
vi. In the note dated 20.01.2023, ExPW53/A-1, the accused had simply put up the letter received from the society for revival of the society and submitted the file for the direction of a worthy Registrar without making any recommendation.
vii. By referring to the various notings, it was argued that the accused has simply processed the file by mentioning the factual position and the documents produced on behalf of the society and he did not make any recommendation whatsoever regarding revival of the society.
viii. There is no evidence indicating that the accused had knowledge about the alleged forgery of documents. Accused Raman Verma (A-3) was not required to personally verify the genuineness of the documents produced by the society.
ix. By referring to the testimony of PW70 Sh. Bharat Singh, who is the IO of the present case, submitted that there is no evidence on record suggesting that the accused has obtained or attempted to obtain any pecuniary advantage for himself or for any other person.
x. There is nothing on record indicating that the accused was a party to the conspiracy regarding CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 64 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 revival of the society and there is nothing on record to show that the accused knew any office bearer of the society or any other private persons involved in the present process.
xi. In the present case the authority competent to accord sanction for prosecuting the accused would have been the authority competent to remove from that office i.e office of RCS, however, in the present case, sanction was granted by PW15 A. Majumdar, Secretary-cum-Director, Department of Social Welfare, Govt. of NCT of Delhi. PW15 was not competent to accord the sanction as the office of Department of Social Welfare has not been misused.
xii. Ld Counsel for the accused further submitted that invalid sanction order was granted mechanically without application of mind and without following the due process of law and the prescribed procedure.
xiii. No sanction has been obtained u/s 197 CrPC, which was a mandatory requirement for prosecuting the accused under the offences under Indian Penal Code. It was argued that it is a well settled law that the sanction for prosecution under Penal Offences are separately required against the public servant u/s 197 CrPC in addition for prosecuting u/s 19 of PC Act.
SUBMISSIONS MADE ON BEHALF OF THE ACCUSED SANJEEV BHARTI (A-4)
85. Ld. Counsel for the accused Sanjeev Bharti (A-
4) made following submissions:
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 65 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 i. The accused did not deal at all with the file relating to the revival of the society in question; from the date of receipt of the request made by the society intimating about the change of registered address of the society from West Zone to South West Zone till the revival order passed by the then RCS, Delhi; accused never dealt with the file pertaining to the society and he was not in picture at all.
ii. Accused came into the picture only after the revival of the society in question through revival order dated 14.02.2003. By referring to the testimony of PW70 Sh. Bharat Singh, it was stated that it is an admitted fact that accused Sanjeev Bharti (A-4) was appointed as an Election officer vide the order dated 14.02.2003.
iii. The election in question was not a precondition to the revival of the society but it was conducted only after the revival order was passed and the report was submitted.
iv. Accused cannot be held liable for being a party to the criminal conspiracy with other accused persons in the process of revival of the society on the basis of alleged fake and forged documents.
v. The election of the society had never been a precondition to its revival and it had a very limited purpose. By referring to the provision of Section 63 (3) of the DCS Act, 1972, it was stated that the revival of society is done under this provision of law but this section does not say about election of the society as the precondition CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 66 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 for revival of a society.
vi. By referring to the decision of another Ld. CBI Court in a case titled as CBI Vs. D.K. Sinha & Ors., it was argued that in that case also, accused was charged for conspiracy for submitting forged election report but was acquitted on the ground that audit and election of the society are not prerequisites for revival of any society under DCS Act, therefore, in the present case also the same would apply.
vii. It was also argued that the election of a Cooperative Group Housing Society and allotment of land by DDA to that society are two different acts and have no relation to each other. There is nothing on record to prove that conducting of election in the society was a must for allotment of land by DDA during the relevant time.
viii. He further stated that PW70 Bharat Singh has categorically deposed that DDA allots land on the basis of the approved list of members sent by the office of RCS and DDA has no concern with the election of the society.
ix. Even the conducting of election had no bearing in approving and sending of the freezed list of members to DDA for allotment of land, as the said revival order dated 14.02.2003 had already been passed. Even the DDA did not return back the approved list for want of election report and in fact DDA went ahead with the process of allotment of land to the society.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 67 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 x. In any such society the last act would be to send the approved/freezed list of members of the society to DDA for allotment of land and thereafter nothing remains to be done on the part of the office of RCS so far as the allotment of the land is concerned.
xi. There is no documentary or other evidence on record, as brought by the prosecution, suggesting that the election report dated 27.03.2003 had ever been used for any purpose by the office of the RCS. During the testimony of the PW70, it has come on the record that said election report was never sent to the DDA not only that the said report was not even taken on the record by the office of RCS.
xii. There is not even iota of evidence suggesting that accused Sanjeev Bharti (A-4) was a party to the criminal conspiracy as alleged by the prosecution. Accused had no knowledge of conspiracy regarding revival of the society and he never met with any other accused persons or communicated with other private persons and no pecuniary advantage was received by the accused Sanjeev Bharti (A-4).
xiii. The accused acted in a good faith and bonafide on the basis of the list of members furnished by the society concerned. The society was responsible for the genuineness of the members present in the alleged meeting and documents of the society. The irregularity, if any, while conducting the said election, at the most, can be called an administrative lapse on the part of the accused Sanjeev Bharti (A-4) and cannot give rise to a criminal liability.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 68 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 xiv. In the present case, sanction for prosecution was given by Directorate of Education, GNCT, wherein the accused was working during the year 2006 but that office was neither abused nor misused. The competent authority who accorded the sanction for prosecution u/s 19 of the PC Act would have been the authority competent to remove him from that office i.e. Office of the RCS in 2003. PW59 Directorate of Education was not competent authority to accord sanction for prosecution of accused Sanjeev Bharti (A-4). Further, the sanction was granted mechanically without application of mind and without following the law laid down and due process of law.
xv. Since the accused has been charged with the penal offences u/s 120B r/w 420, 468 and 471 IPC, there was a mandatory requirement of sanction for prosecution u/s 197 Cr.P.C. which is not there, therefore, the accused Sanjeev Bharti (A-4)is entitled to be acquitted.
86. Ld, Counsel appearing for Raman Verma (A-3) and accused Sanjeev Bharti (A-4) has placed reliance upon following authorities in support of his arguments made on behalf of the said accused persons:
(a) K.R. Purushothaman Vs. State of Kerala, (2005) 12 Supreme Court Cases 631.
(b) Ram Sharan Chaturvedi Vs. The State of Madhya Pradesh Crl. Appeal No. 1066 of 2010 date of CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 69 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 decision 25.08.2022.
(c) Anil Kumar Bose Vs. State of Bihar (1974) SCC (4) 616.
(d) Dr. Subramaniam Swamy Vs. Dr. Manmohan Singh and another Civil Appeal No. 1193 of 2012 (Arising out of SLP (C ) No. 27535 of 2010) date of decision 31.1.2012.
(e) Mansukhlal Vithaldas Chauhan Vs. State of Gujarat 1997 (4) R.C.R. (Criminal) 236.
(f) Nanjappa Vs. State of Karnataka Crl. Appeal No. 1867 of 2012 date of decision 24.7.2015.
(g) CBI Vs. Ashok Kumar Aggarwal Crl. Appeal No. 1838/2013 date of decision 22.11.2013.
(h) Sh. Anand Murlidhar Salvi Vs. The State of Maharastra Crl. Appeal No. 1107 of 2004 date of decision 23.02.2021.
(i) State of Maharasta, through Deputy Superintendent of Police, Anti Corruption Bureau, Nagpur Vs. Devidas s/o Narayanrao Bobde Crl. Appeal No. 345 of 2002 date of decision 08.09.2014.
(j) Prof. N.K. Ganguly Vs. CBI New Delhi Crl.
Appeal No. 798 of 2015 date of decision 19.11.2015.
(k) Indra Devi Vs. State of Rajasthan, Crl. Appeal No. 593 of 2021 date of decision 23.07.2021.
(l) A. Srinivasulu Vs The State Rep. By the Inspector of Police, Crl Appeal No. 2417/2010 date of decision 15.06.2023 (SC).
(m) Amod Kumar Kanth Vs. Association of Victim of CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 70 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Uphaar Tragedy and Anothers, Crl Appeal No. 1359/2017, date of decision 20.04.2023(SC).
(n) State Vs Mukesh Kumar Singh & Anr., Crl Revision Petition 462/2007 date of decision 03.04.2018 (DHC).
87. Ld. Counsel for accused Ashutosh Pant (A-8) has made following submissions:
i. At the first instance, Ld. Counsel for the accused Ashutosh Pant has taken me to the charge sheet particularly para 8,10,14 and submitted that the only allegations against the accused Ashutosh Pant is that he had forged the documents and sold the documents to Dharmender Singh Rana. He further stated that accused Dharmender Singh Rana was though arrested but he was not chargesheeted. There is no linkage connecting accused Ashutosh Pant with the offence in question.
ii. Ld Defence Counsel vehemently argued that the only evidence available against the accused Ashutosh Pant is that he has forged the signature of Ms Sunita Juneja (PW18) on the document ExPW12/H which is given questioned document Q 894. He submitted that even the prosecution was not able to prove beyond reasonable doubt that the signatures of PW18 were forged by the present accused.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 71 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 iii. He has taken me to the testimony of PW18 Sunita Juneja and pointed out that this document ExPW12/H was not even referred to or confronted to this witness by the prosecution for the reasons best known to the prosecution. Prosecution should have at least shown this document to PW18 Sunita Juneja who in turn could have explained that this document does bear her signatures at serial no. 84 which is question document Q 895.
iv. He has taken me to the actual charges framed by the Ld. Predecessor of this court against accused Ashutosh Pant. By referring to the language of the charges framed against accused u/s 420/468/471 IPC, Ld Defence Counsel submitted that there are no allegations against the accused Ashutosh Pant qua the charges framed. Even in the chargesheet, there is no request from the side of prosecution even to amend or alter the charges. There is not even an allegation that accused Ashutosh Pant has cheated someone or has forged the documents and the ingredients of section 468 IPC are not attracted which is missing in the present case also, as prosecution has not been able to prove its case.
v. By referring to the testimony of PW46, Vishwa Mittel Bhagi, Ld. Defence Counsel pointed out that PW46 is a stock witness as his signatures have been taken later on. PW46 deposed that the proceedings of taking over the specimen signatures and writings of accused Ashutosh Pant took place in his presence. Ld. Defence Counsel vehemently argued that PW46 has categorically CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 72 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 stated that he was called at the CBI office on 19.06.2000 and accused Raman Verma and Ashutosh Pant were there and their specimen signatures and writings were taken on certain pages.
vi. By referring to the documents placed at D-14 and D-20, he submitted that the record would indicate that specimen signatures and writings of accused Raman Verma had been taken on 01.06.2023. That being so, there was no occasion for this witness to depose that the specimen signatures and writings had been taken on 19.6.2023.
vii. By referring to the document placed on D-20, Ld. Defence Counsel vehemently argued that the specimen signatures and writings were sent to the GEQD for examination vide communication dated 13.06.2006. If the story of the prosecution is to be believed, specimen signatures and writings of accused Raman Verma were taken on 19.6.2006 then how the IO could send the same to GEQD on 13.06.2006.
viii. Ld. Defence counsel has also taken me to the testimony of PW70 and by referring to the cross examination, he tried to prove that the taking over of the specimen signatures and writings of accused Ashutosh Pant was not done the way it has been shown. He further argued that it is very surprising that how by showing the newspaper, specimen signatures have been taken.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 73 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 ix. Ld. Counsel has placed reliance on the following authorities:
(a) State of H.P. Vs. Jai Lal & Ors. (1999) 7 SCC 280.
(b) Ramesh Chandra Aggarwal Vs. Regency Hospital Ltd. (AIR 2010 SC 806).
(c) Malay Kumar Ganguly Vs. Sukumar Mukherjee (AIR 2010 SC 1162). (d) Mohd. Hanif Shaikh Vs. State of Gujarat (1994 35 (2) GLR 1191). (e) Titli Vs. Alfred Robert Jones AIR 1934 All 273. (f) Pandit Ishwari Prasad Misra Vs. Mohammad ISA AIR 1963 SC 1728. (g) Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee AIR 1964 SC 529. (h) Devi Prasad Vs. State 1967 AIR All 64. (i) Fakhruddin Vs. State of M.P. AIR 1967 SC 1326. (j) Smt. Bhagwan Kaur Vs. Shri Maharaj Krishan Sharma 1973 4 SCC 46. (k) Ram Narain Vs. State of U.P. (1973) 2 SCC 86. (l) Magan Bihari Lal Vs. State of Punjab (1977) 2 SCC 210. (m) Murari Lal Vs. State of M.P. (1980) 1 SCC 704. CBI Vs. Narayan Diwakar & Ors. (Anchal CGHS) Date of Judgment 12.09.2023 (Page 74 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 (n) State of Maharastra Vs. Sukhdev Singh (1992) 3 SCC 700. (o) Alamgir Vs. State (NCT Delhi) (2003) 1 SCC 21. (p) Amarjit Singh Vs. State of U.P. (1998) 8 SCC 613. (q) M. Durga Prasad Vs. State of A.P. (2004) Crilj 242. (r) Raviappa Vs. Nilakanta Rao AIR 1962 Kant 53. (s) Chakrapani Jagannath Prasad Vs. Chandoo Sahadeo 1959 AIR MP 84. (t) State of Rajasthan Vs. Dr. J.P. Sharma 1983 Crilj 858. (u) Bhargav Kundalik Salunkhe Vs. State of Maharashtra 1966 Cri.lj 1228. (v) Sandeep Dixit Vs. State of Delhi 2012 190 DLT 600. (w) S. Gopal Reddy Vs. State of A.P. (1996) 4 SCC 596. (x) Padum Kumar Vs. State of U.P. (2020) SCC Online SC 32. DISCUSSION AND ANALYSIS
88. I have perused the record and heard the Ld. PP for CBI and the Ld. Counsels for accused persons.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 75 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Having gone through the record and the submissions made, the controversy in the present case revolves around following points:
i. The society was registered vide registration no. 655 (Group Housing) dated 22.09.1983.
ii. The society was wound up vide order dated 20.12.1989 and then revived vide order dated 14.2.2003 by accused Narayan Diwakar (A-1).
iii. The revival order dated 14.02.2003 was passed based upon the false and forged documents.
iv. What is the role of the accused persons?
(i) The Present Society was registered vide registration No. 655 dated 22-9-1983
89. It is the case of prosecution that the present society was registered with the office of RCS Delhi on 22 September 1983 vide registration number 655 with 63 promoter members having its registered office at 7, Sethi Bhawan Rajendra Place, New Delhi. It is the further case of prosecution that Shri G.P.S. Angroola and Shri J.K. Marwaha was the president and secretary respectively of the society at the time of its registration.
CBI Vs. Narayan Diwakar & Ors.
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90. The aforesaid fact has not been as such denied by the accused persons. During the statements of the accused persons recorded under section 313 CrPC in response to the questions (Q No.1 to Q No.10) pertaining to the registration of the society , the reply given by the accused persons was either " I have no knowledge' or 'I don't know" or "registration of the society is a matter of record"
and "submission of the Bye Laws and Inquest Inquiry Report is a matter of record". Meaning thereby accused persons have not disputed the registration of the society and the fact that certain documents were submitted to the office of RCS. Even otherwise, it has come on the record that the society was registered with the office of RCS as claimed by the prosecution.
91. PW12 G.P.S. Angroola deposed that he retired from the Syndicate bank as Assistant General Manager in the year 2011. The society was formed by the staff members of Syndicate Bank in 1983. The address of the society was 7, Sethi Bhawan Rajendra Place, New Delhi. He further deposed that the application for registration of the society in the union territory of Delhi was submitted to the office of RCS with a request for registration of the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 77 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 society in the name of Anchal CGHS. In the said application his name appears at serial number 2 and his signatures are appearing at point X. The application is Ex.PW12/A. He further deposed that the decision for registration of the society was taken during the meeting dated 9.8.1983. The minutes of the meeting dated 9.8.1983 are Ex.PW12/B. which bears his signatures at point X against serial No. 2. The proceeding register was identified by PW12 as ExPW12C. PW12 further deposed that the original minutes of meeting dated 9.8.1983 are ExPW12/C-1.
92. PW 12 further deposed that Bye Laws of the society are ExPW12/D, which bears his signature as well as signatures of Sh J.K. Marwah, the then secretary of the society. He further deposed that Intensive Inquiry Performa ExPW12/E was also submitted to the office of RCS, which bears his signatures at point X and the signature of the then secretary Sh J.K. Marwah at point X-1. PW12 proved his affidavit dated 7.8.1983 as ExPW12/F, which was executed by him at the time of registration of the society. PW12 identified the registers of members of the society as ExPW12/F-1 and ExPW12/F-2.
CBI Vs. Narayan Diwakar & Ors.
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93. PW13 J.K.Marwah deposed that he became a member of the society in the year 1983; the society was formed by the Employees of Syndicate Bank and the initial strength of the society was 63; he was one of the founder members of the society and was elected as secretary of the society. He deposed that the application which was submitted to the office of RCS for registration of the society is ExPW12/A.
94. He further deposed that the decision for registration of the society was taken during the meeting dated 9.8.1983. The minutes of the meeting dated 9.8.1983 are Ex.PW12/B. which bears his signatures at point X against serial No. 1. The proceeding register was identified by PW13 as ExPW12C. PW 13 further deposed that the original minutes of meeting dated 9.8.1983 are ExPW12/C-1.
95. PW 13 further deposed that Bye Laws of the society are ExPW12/D, which bear his signature. He further deposed that Intensive Inquiry Performa ExPW12/E was also submitted to the office of RCS, CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 79 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 which bears his signatures at point X . PW13 proved his affidavit dated 7.8.1983 as ExPW13/A, which was executed by him at the time of registration of the society.
96. PW14 Babu Ram, PW17 Bhupinder Singh, PW18 Savita Juneja, PW19 Ashok Sachdeva, PW20 Sanjeev Aggarwal, PW21 Vicky Arya, PW22 Romy Kumar, PW23 Prem Singh, PW24 Vinay Kumar, PW25 Pooran Singh, PW26 Ashok Kumar, PW27 Surinder Singh, PW30 Man Singh , PW31 Sohanlal , PW55 Pravesh Chandra Khanna, PW57 Veena Bhatia, PW66 Urmila Bhatia and PW68 Rita Bhatia were the promoter and original members of the society, who became the members of the society at the time of its registration. All these witnesses have deposed more or less on the lines of PW12 G.P.S Angroola and PW13 J.K Marwaha pertaining to the registration of the society with the office of the RCS and submission of Bye Laws, Inquest Inquiry report etc. to the office of the RCS.
97. PW12 G.P.S. Angroola has been cross examined only on behalf of the accused Jitender Singh Sharma against(A-2 proceedings already stands abated). He was CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 80 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 not cross examined by the rest of the accused persons despite opportunity being given to them.
98. PW22 Romy Kumar,PW23 Prem Singh,PW24 Vinay Kumar,PW25 Pooran Singh, PW26 Ashok Kumar,PW27 Surinder Singh and PW68 Rita Bhatia have been cross examined only on behalf of the accused No.7 Vinod Gupta ( proceedings already stand abated) and not by rest of the accused persons despite the opportunity being given to them.
99. PW30 Man Singh has been cross examined on behalf of the accused Narayan Diwakar(A-1), Jitender Singh Sharma (A- 2, proceedings stand abated) and Vinod Gupta (A-7, proceedings stand abated) but not by rest of the accused persons despite opportunity being given to them.
100. PW31 Sohan Lal has been cross examined on behalf of the accused Sanjeev Bharti (A-4) and accused Vinod Gupta (A-7, proceedings stand abated) but not by rest of the accused persons despite opportunity being given to them.
CBI Vs. Narayan Diwakar & Ors.
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101. PW55 Parvesh Chander Khanna has been cross examined on behalf of the accused Narayan Diwakar (A-1) and Jitender Singh Sharma(A-2, proceedings stand abated) but not by rest of the accused persons despite opportunity being given to them.
102. PW57 Veena Bhatia has been cross examined on behalf of the accused Ashutosh Pant (A-8) but not by rest of the accused persons despite opportunity being given to them.
103. PW66 Urmila Bhatia has been cross examined on behalf of the accused Sanjeev Bharti (A-4) but not by rest of the accused persons despite opportunity being given to them.
104. Although, as stated herein above, some of the witnesses have been cross examined on behalf of some of the accused persons, but it appears that it was just a symbolic cross examination. Only 2-3 general questions were put to the aforesaid witnesses. Even during their cross examination, the testimonies of these witnesses have CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 82 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 gone unchanged and there is nothing on record to disbelieve the same.
105. Rest of the witnesses have not been cross examined by the accused persons. Their testimonies have gone unrebutted and unchallenged.
106. The application ExPW12/A for registration of the society is already on the record. The decision for registration of the society was taken in the meeting dated 09.08.1983. The minutes of the meeting dated 09.8.1983 ExPW12/C-1 would indicate that one of the resolution passed was as under:-
"Resolved that Sh. J.K Marwaha, Secretary of the society be authorised to prepare and sign the registration paper of the society"
107. Pursuant to that resolution, an application ExPW12/A was moved seeking registration of the society. Application ExPW12/A indicates that Sh. G.P.S Angroola (PW12) is the President of the society and Sh. J.K Marwaha (PW13) is the Secretary of the society and said application has been signed by the President as well as by the Secretary of the Society. Further, a request was made CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 83 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 for registration of the society with 63 Promoter Members duly approved by the Managing Committee of the Society. Along with the application ExPW12/A, Bye-Laws of the Society ExPW12/D alongwith list of members, Intensive Inquiry Performa ExPW12/E and other documents were also submitted to the office of RCS and the Society was subsequently registered.
108. In view of the aforesaid discussion and testimonies of witnesses noted herein above, prosecution has been able to establish that the Anchal Co-operative Group Housing Society Ltd was registered on 22.09.1983 vide registration no.655 by the office of Registrar of Cooperative Society.
ii. The society was wound up vide order dated 20.12.1989, by the then Deputy Registrar Mr. Satish Mathur and then revived vide order dated 14.2.2003 by accused Narayan Diwakar(A1)
109. It is the case of the prosecution that the society was wound up by an order dated 20.12.1989 of Shri Satish Mathur, the then Deputy Registrar, Office of RCS Delhi for the reasons that the society had been lying defunct, CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 84 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 had not submitted any intimation to the RCS and had not got its account audited since its registration.
110. This fact is also not in dispute that the present Society was wound up vide order dated 20.12.198, by then Registrar Mr. Satish Mathur and after a gap of around 13 years it was revived vide order dated 14.2.2003, by the accused Narayan Diwakar (A-1), who was working as Registrar.
111. When the accused Narayan Diwakar(A-1) was asked during his statement recorded under section 313 CrPC (Q.No.627), to the effect whether he wants to say anything with regard to cancellation of winding up order, he replied that 'cancelling the winding up order of the society had nothing to do with the availability or the verification of the records. The only aspect that was to be taken was Rule 105 of the Delhi Cooperative Societies Rules,1973. Therefore, the Act done by me was done in absolute good faith taking all necessary steps as provided under the law". Meaning thereby, accused Narayan Diwakar (A-1) has not disputed the order of revival dated 14.2.2003 issued by him in the capacity of Registrar.
CBI Vs. Narayan Diwakar & Ors.
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112. During the further statement of the accused persons recorded under section 313 CrPC ( from Q. No. 283 onwards), they have not denied the notings recorded by the office of the RCS. The replies given by the accused persons were like "pertains to contents of noting for which relevant noting and documents may be seen"
" pertains to content of noting" "It is a matter of record"
and "I do not know". The accused persons have not disputed the notings pertaining to revival order dated 14.2.2003.
113. It is true that it is the duty of the prosecution to prove its case beyond reasonable doubt but at the same time, recording of statements of accused persons under section 313 CrPC is not mere a formality. It confers valuable right upon the accused to establish his innocence and can well be considered beyond statutory rights as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 86 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
114. This court is conscious of the fact that the statement of the accused recorded under section 313 CrPC solely by itself is not enough for conviction but can be used for corroboration along with other evidence for conviction. In few cases, silence of accused particularly on material pieces of incriminating evidence, leads to adverse inference against the accused.
115. Hon'ble Supreme Court in Mohan Singh v. Prem Singh (2002) 10 SCC 236 , held that :
"27. The statement made in defence by the accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 CrPC cannot be made the sole basis of his conviction."
In this connection, reference may also be made to the judgments of this Court in Devender Kumar Singla v. Baldev Krishan Singla [(2005) 9 SCC 15 and Bishnu Prasad Sinha v. State of Assam [(2007) 11 SCC 467 . The abovementioned decisions would indicate that the statement of the accused under Section 313 CrPC for the admission of his guilt or confession as such cannot be made the sole basis for finding the accused guilty, the reason being he is not making the statement on oath, but all the same the confession or admission of guilt can be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution.
CBI Vs. Narayan Diwakar & Ors.
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116. In Prahlad v. State of Rajasthan, (2019) 14 SCC 438 , it was held by Hon'ble Supreme Court that:
11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.
117. In another case titled as Paul v. State of Kerala, (2020) 3 SCC 115, it was held by Hon'ble Supreme Court that:
20. We, therefore, have no hesitation in holding that a statement made by the accused under Section 313 CrPC even if it contains inculpatory admissions cannot be ignored and the court may where there is evidence available proceed to enter a verdict of guilt.
118. In view of the settled position of law, in the present case, the statement of the accused recorded u/s 313 CrPC, also lends credence to the case of the prosecution.
119. PW42 Ravi Kant is a witness who was party to the search team formed by CBI and is a witness to the search carried out at the premises of the accused CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 88 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Sudershan Kumar Singhal (A-5, proceedings already stand abated). Although, during his examination in chief his testimony was little bit contrary to the story of prosecution but during his cross examination done on behalf of the CBI, it has come on the record that on 4.1.2006, search was carried out at the residence of accused Sudershan Kumar Singhal (A-5, proceedings already stand abated) and accused Satish Gupta (A-6, already stand convicted) was also called there. During the interrogation of both the aforesaid accused persons, it was revealed that documents of the society are with some one namely Sanjay Thukral (PW58). Sanjay Thukral was also called there and was interrogated who disclosed that the documents pertaining to the society are lying at his residence at Dwarka. Thereafter, search team along with all of them reached at the residence of Sanjay Thukral (PW58) at Dwarka and from there the documents pertaining to the society were seized vide seizure memo dated 04.1.2006 ExPW42/B.
120. PW58 Sanjay Thukral deposed that in the year 2005-2006, he was working under Sudershan Singhal (A-5, proceedings stand abated) at Ashok Vihar, Delhi.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 89 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Sh. Suderashan Singhal (A-5, proceedings already stand abated) had handed over certain documents pertaining to Anchal CGHS to him in the year 2005 for keeping the same. PW58 further deposed that the said documents were taken into possession by Insp. Bharat Singh (PW70) in 2006 from his (PW58) house and at that time accused Sudershan Singhal (A-5, proceedings already stand abated) was also with CBI officials, vide seizure memo dated 04.01.2006 ExPW42/B.
121. PW44 Sh. Anil Srivastav deposed that in the year 2006 , he was working as Investigator in the Department of Official Language, Ministry of Home Affairs. On 04.01.2006, he along with Sh. Ravi Kant(PW42) attended CBI office, Lok Nayak Bhavan on being directed by his senior officer Sh. M.L. Gupta, Joint Secretary, MHA, reported to the CBI Office in Khan Market. He along with Ravi Kant(PW42) and the CBI raiding/search team reached at B-40, Phase-I, Ashok Vihar at the residence of Surdarshan Kumar Singhal (A-5, proceedings stand abated) where CBI team interrogated Sudarshan Kumar Singhal(A-5, proceedings already stand abated) and had conducted the search of the residential premises of CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 90 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Sudarshan Kumar Singhal (A-5); CBI had called Satish Gupta (A-6), one of friend of Sudarshan Kumar Singhal (A-5) and Satish Gupta (A-6, already stand convicted) had reached there; on interrogation by the CBI, both of them disclosed that the records pertaining to the Aanchal CGHS were kept at the residence of Sanjay Thukral(PW58); Sanjay Thukral(PW58) also reached at the residence of Sudarshan Kumar Singhal (A-5) and admitted that the documents are kept with him; they all proceeded to the residence of Sanjay Thukral (PW58) at Sector-10, Dwarka where PW58 Sanjay Thukral had handed over the records of Aanchal CGHS to the CBI team which were taken into possession through seizure memo dated 04.01.2006 ExPW42/B.
122. PW42 Ravi Kant, PW44 Anil Srivastava and PW58 Sanjay Thukral were not cross examined by the accused persons who are presently facing the trial despite the opportunity given to them except one or two questions put to PW42 Ravi Kant and PW44 Anil Srivastva. PW42 Ravi Kant was cross examined by the accused Vinod Gupta (A-7, proceedings stand abated) and accused Ashutosh Pant(A-8) has adopted the cross examination CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 91 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 done on behalf of A-7. PW44 was cross examined by accused Ashutosh Pant (A-8) but not by rest of the accused persons despite the opportunity being given to them. The testimonies of PW42 Ravi Kant, PW44 Anil Srivastava and PW58 Sanjay Thukral have gone unchallenged on the material points and there is nothing on record to disbelieve the same.
123. Further, testimonies of PW42 Ravi Kant, PW44 Anil Srivastava and PW58 have been supported by PW70 Bharat Singh, who is the IO of the present case.
124. PW70 Bharat Singh deposed that from the residential premises of Sanjay Thukral (PW58) at Dwarka, Delhi, various incriminating documents pertaining to the instant case were found. He had seized all those documents through a seizure memo dated. 04.01.2006 Ex. PW42/B.
125. Regarding the seizure memo ExPW42/B and the fact that CBI Search Team carried out the search, as deposed by PW42 Ravi Kant, PW44 Anil Srivastav, PW58 Sanjay Thukral and PW70 Bharat Singh, there is CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 92 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 no cross examination of PW70 also by the present accused persons. In this regard, the testimony of PW70 has also gone unrebutted and unchallenged.
126. During the statement of accused persons recorded under section 313 CrPC, regarding search and seizure memo ExPW42/B, all the accused persons stated that they don't have any knowledge. They have not denied the aforesaid peace of evidence i.e seizure of documents vide seizure memo ExPW42/B.
127. The seizure memo ExPW42/B is on the record. It bears the signatures of accused Sudershan Kumar Singhal (A-5), accused Satish Gupta (A-6), PW42 Ravi Kant, PW58 Sanjay Thukral ,PW44 Anil Srivastav and the IO PW 70 Bharat Singh. As per the said seizure memo, as mentioned at serial no.2, file containing original order of revival dated 14.2.2003, list of members, certificate of resignation, Bye Laws, application for the registration of the society was also seized and the same is ExPW70/B.
128. PW63 Sh. S.L Garg deposed that in the year 2005, he was posted as Inspector, CBI EOW-II and as per CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 93 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 order of Sh. Piyush Anand, SP, CBI he had received documents mentioned in the letter dated 08.8.2005 Mark PW63/A and subsequently, handed over documents to various Enquiry Officers who were conducting different preliminary enquiries related to various group housing societies. He further deposed that the documents related to Anchal CGHS Ltd. were handed over by him to Sh. G.S.Rai, DSP, CBI, BS & FC, New Delhi vide receipt memo dated 10.08.2005, Ex.PW61/C. PW63 was not cross examined by the accused persons despite the opportunity except by accused Vinod Gupta (A-7, proceedings stand abated).
129. PW60 Sh. Ghan Shyam Rai deposed that in the year 2005, he was posted as DSP in BS &FC, CBI New Delhi. Vide receipt memo dated 10.08.2005 ExPW60/C, he had received documents pertaining to Anchal CGHS Ltd. from S.L.Garg(PW63), Inspector, CBI, EOW-II, New Delhi. The memo ExPW60/C bear his signatures at point A and that of S.L.Garg(PW63) at point B. PW 60 further deposed that vide receipt memo dated 10.01.2006 ExPW60/D, he had handed over documents mentioned in the memo to Insp. Bharat Singh (PW70).
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130. PW70 Bharat Singh also deposed that vide seizure memo ExPW60/D, he had seized files/documents from Sh. Ghanshyam Rai, Dy. SP, CBI, BS&FC, Delhi including RCS file no. F-47/655/GH/RCS/014/03-Vol. I Ex. PW70/H.
131. From the testimonies of PW60 Gham Shyam Rai, PW63 S.L Garg and PW70 Bharat Singh, it has come on the record, that vide seizure memo dated 10.1.2006, ExPW60/D, files pertaining to the society maintained by the office of RCS was seized as ExPW70/H.
132. I have gone through the file ExPW70/H. It is having the noting portion also as recorded by the office of RCS pertaining to the society. This file has been maintained by the office of RCS in the ordinary course pertaining to the society.
133. PW53 Narender Khatri deposed that he was posted as LDC in the office of RCS from May 2000 to September 2005 and in the year 2003, he was posted as Reader to RCS and had dealt with the file of Anchal CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 95 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 CGHS Ltd. during the year 2003. He further deposed that the note dated 20.01.2003 ExPW53/A-1 was prepared by the then Dealing Assistant and forwarded by Sh. J.S. Sharma(A-2, proceedings stand abated), AR (South-West) vide which the matter was put up for further directions by the RCS for revival of Anchal CGHS Ltd.
134. PW53 further deposed that in the note of J.S. Sharma (A-2, proceedings stand abated), AR (South-West) dated 11.02.2003, it is mentioned that the necessary verification has been made and 63 promoter members and 27 new enrollments, thus total number of members are 90. The said note bears signatures of J.S Sharma(A-2, proceedings stand abated) at point H and is Ex.PW53/G. He further deposed that note dated 17.02.2003 ExPW 53/I, is made by Sh. Manmohan, Reader of RCS, whereby he had sent the file to the concerned zone for further action pursuant to revival order dated 14.02.2003, passed by accused Narayan Diwakar (A-1), the then RCS. The said note bears the signatures of Sh. Manmohan, at point J and the photocopy of revival order is marked as Mark PW53/J bearing the signature of Sh. Narayan Diwakar, RCS at points K-1 & K-2 .
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135. PW 53 was not cross examined by the accused persons except accused Narayan Diwakar (A-1) and Jitender Singh Sharma(A-2, proceedings stand abated). Even during the cross examination of this witness on behalf of the accused Narayan Diwakar(A-1), the aforesaid testimony has not been challenged.
136. Moreover, the revival order dated 14.2.2003 Mark PW53/J is not in dispute and has been admitted by the accused persons as evident from their statements recorded under section 313 Cr PC. From the said revival order it is crystal clear that the show cause notices were issued to the society on certain grounds but the society failed to respond to notices and consequently the society was put under liquidation vide order dated 20-12-1989, which was then cancelled and the society was revived.
137. In view of my aforesaid discussion, this court is of the opinion that the prosecution has been able to establish that the society was wound up vide order dated 20.12.1989, by the then Deputy Registrar Mr. Satish Mathur and then was revived vide order dated 14.2.2003 by accused Narayan Diwakar(A1).
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(iii) The revival order dated 14.02.2003 was passed based upon the false and forged documents.
138. In the present case the main allegation against the accused persons is that they had created false and forged records on the basis of which, society was revived. During investigation, to prove the forgery, specimens and admitted writings/signatures of certain persons including accused persons were taken and sent to the GEQD for examination. The report from the GEQD is already on record and that report is going to be referred to in the subsequent para's wherever relevant, so it becomes necessary to take stock of the evidence of an expert and the evidentiary value thereof.
139. Before appreciating and to judge the admissibility of the aforesaid report, I think that the matter pertaining to the writings and signatures and opinion there upon can be judged on following four counts:
(a) Specimen writings and signatures were taken.
(b) Such specimen writings/signatures along with CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 98 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 questioned documents were sent to the Government examiner for examination.
(c) The Govt Examiner examined specimen signatures by comparing it with the questioned documents and submitted a report.
(d) Value of such expert opinion/report as per the Indian Evidence Act.
(a) Specimen writings and signatures were taken.
140. The specimen signatures were taken of various prosecution witnesses namely Subhash Rastogi (PW61), Sushil Kumar Singhal (PW65), Satish Agarwal (PW2), Bhuvaneshwar Garg (PW7), Sanjay Thukral (PW58) and Madhu Chaudhary (PW1) and also of accused persons namely Vinod Gupta (A-7, proceedings already stand abated), Satish Gupta (A-6, already stand convicted), Sudershan Kumar Singhal(A-5, proceedings already stand abated), Sanjeev Bharti (A-4), Raman Verma (A-3) and Ashutosh Pant(A-8). PW69 P. Venugopala is the Government examiner who has given his opinion.
141. PW1 Madhu Chaudhary deposed that specimen signature sheets, four in number dated 18.1.2006 from S-
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 99 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 626 to S-629 ExPW1/D ( colly) bear her signatures and she had given her specimen signatures voluntarily to the CBI Officer when she was called by them. PW1 Madhu Chaudhary has not been cross examined on this aspect by the accused persons, rather there is no cross examination of this witness. The testimony of PW1 Madhu Chaudhary has gone unrebutted and unchallenged.
142. PW61 Subhash Rastogi deposed that ExPW45/C(colly) are his specimen signatures/handwriting sheets S-610 to S-617, which were taken by the CBI during investigation. He was not cross examined by the accused person presently facing trial despite the opportunity being granted to them.
143. PW65 Sushil Kumar Singhal deposed that CBI had taken his signatures and handwriting sheets ExPW45/D during investigation. There is no cross examination of this witness on this point.
144. The specimen signatures and handwritings of PW1 Madhu Chaudhary and PW 58 Sanjay Thukral have been taken in the presence of Harish Chandra Meena.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 100 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Harish Chandra Meena has been examined as PW 56. He deposed that he was posted as LDC in the Enforcement Directorate at Khan Market, New Delhi. On 18.01.2006, he along with Sh. A.Suman, UDC had gone to the CBI Office at Khan Market where they met Bharat Singh Inspector (PW70). At the CBI Office, Inspector Bharat told them that they were called to become witnesses to obtain specimen signatures and handwriting of some persons who were in custody of CBI.
145. PW56 Harish Chand Meena further deposed that on 01.02.2006, he along with Sh. Ved Singh, UDC had gone to CBI Office at Khan Market where they met Bharat Singh Inspector( PW70) who requested them to become witness regarding specimen signatures and handwriting; specimen signatures/handwriting sheets of Sanjay Thukral (from S-585 to S-609 of D-13) ExPW56/A ( colly) bear his signatures at point A as witness on all the pages. PW56 Harish Chand identified signatures of Sh. Ved Singh, UDC at point B on ExPW56/A (colly), who also signed as a witness on all the pages; specimen signatures/handwriting sheets of Smt. Madhu Chanudhary (PW1) from S-626 to S-629 CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 101 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Ex.PW1/D(colly.) bear his signatures at point B as witness on all the pages; specimen signatures/handwriting sheets of Satish Chander Aggarwal from S-565 to S-584 ExPW56/B (colly) bear his signatures at point A as witness on all the pages. PW56 Harish Chand also identified signatures of Sh. Ved Singh, UDC at point B on ExPW56/B(colly), who also signed as a witness on all the pages. PW56 Harish Chand Meena further deposed that the specimen signatures/handwritings sheets of accused Sudhershan Kumar Singhal (A-5) from S-441 to S-460, S- 465 to S-468, S-484 to S-487, S-492 to S-502, S-506 to S- 525, S-535 to S-546 ExPW56/C(colly) bear his signatures at point A. He also identified signatures of Sh.Ved Singh, UDC at point B on ExPW56/C (colly), who also signed as a witness on all the pages.
146. PW 56 Harish Chandra Meena was not cross examined on behalf of the accused persons despite the opportunity being given to them. The testimony of PW 56 has gone and unchallenged and there is nothing on record to disbelieve the same.
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147. PW45 S.B Shukla is another witness in whose presence specimen signatures of some of the prosecution witnesses as well as accused persons were taken. PW45 S.B Shukla was working as LDC in the office of EPFO, Vigilance Department. PW45 attended CBI office, Khan Market on 16th, 17th and 22nd May, 2006 on being directed by Chief Vigilance Officer and on the requisition of Bharat Singh, Inspector, CBI. PW45 deposed that IO Bharat Singh, Inspector (PW70) had obtained specimen handwriting/signatures of Vinod Gupta (A-7 proceedings already stands abated ), Satish Bansal and few others and the said persons who had voluntarily furnished their specimen handwriting/signatures without any pressure, in his presence and he had put his signatures on the specimen signature sheets as a witness; the specimen signatures/handwriting sheets of accused Vinod Kumar Gupta( proceedings stands abated) (from S-1 to S-364 of D-11, consisting of 364 pages) ExPW45/A (Colly) bear his signatures at point A on all the pages. He further deposed that specimen signatures/handwriting sheets accused Sanjeev Bharti from S-547 to S-564 Ex.PW45/B (colly.) bear his signatures at point A on all the pages; the specimen signatures/handwriting sheets of Subhash CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 103 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Rastogi (PW61) from S-610 to S-617 ExPW45/C (colly) bear his signatures at point A on all the pages; the specimen signatures/handwriting sheets of Sushil Kumar Singhal (PW65) from S-618 to S-625 ExPW45/D ( colly) bear his signatures at point A on all the pages; the specimen signatures/handwriting sheets of accused Satish Gupta from S-399 to S-402, S-406 to S-408 and S-416 to S-431 ExPW45/E(colly) bear his signatures at point A on all the pages; the specimen signatures/handwriting sheets of accused Sudhershan Kumar Singhal from S-461 to S- 464, S-469 to S-490, S-503 to S-505 and S-526 to S-534 ExPW45/F(colly) bear his signatures at point A on all the pages; the specimen of signatures/handwriting sheets of Satish Aggarwal (PW29) from S-630 to S-637 ExPW45/G ( colly) bear his signatures at point A on all the pages; the specimen signatures/handwriting sheets of Bhuwaneshwar Garg (PW7) from S-638 to S-644 ExPW45/H ( colly) bear his signature at point A on all the pages.
148. PW50 Bijender Singh has deposed more or less on the lines of PW45 with whom he had visited the CBI office. PW50 deposed that on 16.5.2006 & 17.5.2006, he CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 104 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 along with Sh. S.B.Shukla (PW45) visited the CBI Office, Lok Nayak Bhawan, and met the CBI Inspector in the CBI Office; in their presence the CBI Inspector had obtained specimen handwriting/signatures of Vinod Gupta, Satish Gupta, Bhuvneshwar Garg, Satish Aggarwal, Ashwani Sharma, Sudarshan and Sanjeev Bharti and had given the specimen handwriting/signatures voluntarily without any pressure; the specimen of signatures/handwriting sheets of accused Vinod Kumar Gupta (from S-1 to S-364 of D-11, consisting of 364 pages) Ex.PW45/A (Colly.) bear his signatures at point B on all the pages. He further deposed that the specimen of signatures/handwriting sheets of accused Sanjeev Bharti (A-4) from S-547 to S-564 of D- 13, Ex.PW45/B (Colly.) bear his signatures at point B on all the pages; the specimen signatures/handwriting sheets of accused Satish Gupta from S-399 to S-402, S-406 to S- 408 and S-416 to S-431 ExPW45/E(colly) bear his signatures at point B on all the pages; the specimen signatures/handwriting sheets of accused Sudhershan Kumar Singhal from S-461 to S-464, S-469 to S-490, S- 503 to S-505 and S-526 to S-534 ExPW45/F(colly) bear his signatures at point B on all the pages; the specimen of signatures/handwriting sheets of Satish CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 105 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Aggarwal(PW29) from S-630 to S-637 Ex.PW45/G (Colly.) bears his signatures at point B on all the pages; the specimen of signatures/handwriting sheets of Bhuwaneshwar Garg(PW7) (from S-638 to S-644 Ex.PW45/H (Colly.) bear his signature at point B on all the pages.
149. Out of the accused persons who are presently facing trial, PW 45 S.B. Shukla and PW50 Bijender Singh have been cross examined only on behalf of the accused Sanjeev Bharti (A-4) but not by the rest of the accused persons despite the opportunity being given to them. Even during the cross-examination done by the accused Sanjeev Bharti (A-4) nothing could be brought on record so that the testimonies of these witnesses could be rejected. Despite his best efforts, accused Sanjeev Bharti (A-4) could not elicit from them anything contrary to the story of prosecution.
150. Similarly PW47 Yaspal Singh deposed that On 22.05.2006, on receipt of a call from IO of CBI, he reached CBI Office, Khan Market and met the IO Bharat Singh (PW70). IO asked him that they were obtaining CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 106 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 specimens of handwriting and signatures of one Subhash Rastogi (PW61) and Sushil Kumar Singhal (PW65) and asked him to be a witness to the said process. PW47 further deposed that specimen signatures/handwriting sheets of Subhash Rastogi (PW61) Ex.PW45/C (Colly) from S-610 to S-617 bear his(PW47) signatures at point B on all the pages and the specimen of signatures/handwriting sheets of Sushil Kumar Singhal (PW65) Ex.PW45/D (Colly) from S-618 to S-625 bear his signatures at point B on all the pages .
151. PW 47 Yaspal Singh was not cross examined on behalf of the accused persons despite the opportunity being given to them. The testimony of PW 47 has gone unrebutted and unchallenged and there is nothing on record to disbelieve the same.
152. The testimonies of aforesaid witnesses have been corroborated by PW70 Bharat Singh who is the IO of the present case. PW70 Bharat Singh has also deposed that during the investigation he had obtained specimen signatures /writings of some of the prosecution witnesses and accused persons. Although PW 70 was cross CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 107 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 examined on behalf of the accused persons but the main cross-examination of PW70 was regarding sanction, pecuniary advantage received by the accused persons and other aspects. Accused persons have not disputed the fact of taking over of specimen signatures and handwritings of the aforesaid persons during the investigation .
153. From the testimonies of the aforesaid witnesses and documents on record, it stands proved that in addition to other proceedings, the following specimen signatures/writings were also taken by the IO PW70 Bharat Singh during the investigation:
➢ specimen signatures S-1 to S-364 in respect of accused Vinod Gupta (A-7) Ex. PW45/A (colly.) ➢ specimen signatures S-547 to S-564 in respect of accused Sanjeev Bharti (A-4) Ex. PW45/B (colly.) ➢ specimen signatures S-610 to S-617 in respect of Subhash Rustogi (PW61), Ex. PW45/C (colly).
➢ specimen signatures S-618 to S-625 in respect of Sushil Kumar Singhal (PW65),Ex. PW45/D (colly).
➢ specimen signatures S-399 to S-402, S-406 to S-
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(Anchal CGHS) Date of Judgment 12.09.2023 (Page 108 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 408 and S-416 to S-431 in respect of accused Satish Gupta (A-6) ExPW45/E(colly).
➢ specimen signatures S-461 to S-464, S-469 to S-
490, S-503 to S-505 and S-526 to S-534 ExPW45/F (colly) and specimen signatures from S-441 to S- 460, S-465 to S-468, S-484 to S-487, S-492 to S- 502, S-506 to S-525, S-535 to S-546 ExPW56/C in respect of accused Sudhershan Kumar Singhal (A-5).
➢ specimen signatures S-630 to S-637 in respect of Satish Aggarwal (PW2), Ex. PW45/G (colly).
➢ specimen signatures S-638 to S-644 in respect of Bhuvaneshwar Garg (PW7), Ex. PW45/H (colly) ➢ specimen signatures S-585 to S-609 in respect of Sanajy Thukral (PW58), Ex. PW56/A (colly).
➢ specimen signatures S-626 to S-629 in respect of Madhu Chaudhary (PW1), Ex. PW1/D (colly).
(b) Such specimen writings/signatures along with questioned documents were sent to the Government examiner for examination.
154. PW70 Bharat Singh, IO deposed that he sent the questioned document, specimen documents and admitted documents to GEQD, Hyderabad vide letter no.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 109 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 3708/1(A)/2006/ACU-IV/CBI New Delhi dt. 13.06.2006 ExPW69/A under his signature and the letter was forwarded by Sh. Satish Golcha the then SP, CBI . The annexures attached with the said letter are Ex. PW69/B, ExPW69/C and ExPW69/D and the questionnaire is annexure IV Ex. PW69/E.
155. PW70 further deposed that he had sent another set of the questioned documents, specimen documents and admitted documents to GEQD, Hyderabad vide another letter no. 4552/1(A)/2006/ACU-IV/CBI New Delhi dt. 21.07.2006 under his signature and forwarded by the then, SP, CBI Sh. Satish Golcha. The said letter is Ex. PW69/F and the annexures to the same are Ex. PW69/G and H.
156. Although PW70 Bharat Singh, who is the IO of the present case, has been cross examined on behalf of the accused persons, but his deposition i.e sending questioned documents, specimen documents and admitted documents to GEQD, Hyderabad for examination vide communications Ex. PW69/B, ExPW69/C, ExPW69/D ExPW69/F, annexures ExPW69/G and H, has not been disputed by the accused persons. Even, during their CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 110 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 statements recorded under u/s 313 CrPC, the replies given by the accused Narayan Diwakar (A-1), Raman Verma (A-3), and Sanjeev Bharti (A-4) were "I have no knowledge" and reply given by the accused Ashutosh Pant (A-8) was "I do not know". During the cross examination of PW70 Bharat Singh, not even a suggestion was put to the PW70 that no such communications were ever sent to the GEQD, Hyderabad.
157. The testimony of PW70 Bharat Singh is corroborated by PW69 P. Venugopala, who deposed that on 20.6.2006, the documents in this case were received in the office of GEQD, Hyderabad, from the CBI, New Delhi, for examination and opinion, vide letter dated 13.06.2006 Ex. PW 69/A and later on, the same were assigned/allocated to him for examination and opinion; the documents contained questioned documents as per Annexure-I, specimen documents as per Annexure-II, admitted documents as per Annexure-III and the questionnaire as per Annexure-IV and same are Ex. PW 69/B to E respectively.
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158. PW69 further deposed that subsequently also documents were received by his office from CBI, New Delhi vide letter dated 21.07.2006 ExPW69/F, for examination and opinion along with documents S 721 to S920 sent through this letter mentioned as Annexure-I Ex.PW 69/G and another Annexure II, which is questionnaire is Ex. PW 69/H. PW69 was cross examined at length on behalf of accused persons. Again, receipt of the documents along with Annexures by the GEQD, Hyderabad from the CBI vide letters ExPW69/A to ExPW69/H, have not been disputed by the accused persons. The testimony of PW69 P. Venugopala Rao has gone un-rebutted and un-challenged.
159. In view of the above, it stands proved beyond reasonable doubt that vide communications and Annexures ExPW69/A to H, the specimen signature/writings along with questioned documents and admitted documents were sent to the Government Examiner, GEQD, Hyderabad with a request for soliciting expert opinion.
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(c) The Govt Examiner examined specimen signatures by comparing it with the questioned documents and submitted a report.
160. PW69 P. Venugopala Rao, deposed that he has examined the documents sent by the CBI and after completion of his examination work on the aforesaid documents, as received by him, as per the questionnaire, he arrived at the opinion which bears number CH- 210/2006 dated 04.08.2006 Ex. PW 69/I; Sh. Narinder Singh, the then Govt. Examiner of Questioned Documents has also examined independently the questioned documents and has agreed with his opinion; the said opinion dated 04.08.2006 ExPW69/I also bear signatures of Sh. Narender Singh at point B.
161. PW69 further deposed that the opinion dated 04.08.2006 ExPW69/I was forwarded to the SP, CBI, ACU-IV, New Delhi, vide forwarding letter ExPW69/J and it bears signatures of Sh. Narender Singh at point A; all the documents of this case were returned to the SP,CBI, ACU-IV, New Delhi vide letter CH- 210/2006/2459 dated 23.08.2006, through special messenger.
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(Anchal CGHS) Date of Judgment 12.09.2023 (Page 113 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
162. PW69 further deposed that he has examined the documents of this case independently utilizing scientific aids such as lenses of various magnifications and angle- poise lamp and have also applied the basic principle which is 'like-with-like' comparison. Regarding reasons given by PW69, he deposed that the case being voluminous in nature, he took some time getting the reasons typed; the set of reasons for arriving at the aforesaid opinion, were sent to the SP,CBI, New Delhi, vide letter bearing no. CH-210/2006/1329 dated 04.04.2008 which bear his signatures and the forwarding letter for the said Reasons also bear his signatures; Certified copy of letter no. CH-210/2006/2459 dt. 23.08.2006 signed by him is Ex. PW69/K and Certified copy of letter no. CH-210/2006/1329 dt. 04.04.2008 along with the reasons dt. 04.08.2006 for the opinion, signed by him is ExPW69/L;
163. PW69 further deposed that the certified copy of office letter no. CH-210/2006/2341 dt. 22.06.2006/03.07.2006, signed by Sh. V.N. Rajan, ACIO-
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 114 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 I, is Ex. PW69/M and he identified signatures of Sh. V.N Rajan as he (PW69) had worked with him over a period of time. PW69 further deposed that the reasons for the opinion of this case were prepared during the course of examination but the same were typed and sent to the forwarding authority later on.
164. Here it is pertinent to mention that during the examination of PW69 P. Venugopala Rao, Ld. Counsel for the accused persons namely Vinod Gupta (A-7,proceedings already stands abated) and accused Ashutosh Pant (A-8) raised an objection regarding admissibility and mode of proof of the letters dated 23.08.2006 ExPW69/K, letter dated 04.04.2008 ExPW69/L and letter dated 22.06.2006/03.07.2006 ExPW69/M. The aforesaid objection appears to have been taken by them basically on the ground that these communications are not part of the judicial record.
165. The record would indicate that during the pendency of present case, an application was moved on behalf of the CBI with a request to take the aforesaid documents on record. The said application was disposed CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 115 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 of by the Ld. Predecessor of this Court vide order dated 07.4.2022, whereby CBI was allowed to file these documents on record with a direction to supply the copy of the same to the accused persons. It is further evident that the said application was opposed by the accused Vinod Gupta ( A-7 ) and Ashutosh Pant (A-8) also. The order dated 07.04.2022 is final and binding upon the parties.. Therefore, the accused persons cannot be allowed to take the objection that these documents were not part of the judicial record.
166. Moreover, I may mention that even if these documents were not made part of the record by the IO, the same cannot be thrown out outrightly. It is not the case of the accused persons that these documents or the communications have been created falsely or are forged. Merely a delay in filing these documents on the record would not reduce their evidentiary value, otherwise available in accordance with the law.
167. The letter dated 23.08.2006 ExPW69/K is a communication addressed to the then Superintendent of the police, CBI wherein it is mentioned that"..` in CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 116 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 continuation of this office opinion no. CH-210/2006 dated 04.08.2006, all the documents received with the letter under reference are being sent herewith. The opinion has already been sent vide this office letter under reference by speed post...".
168. PW69 P. Venugopala Rao has deposed that the said communication has been sent by him and even the certified copy of that communication bears his signatures. Similarly, the communication dated 04.04.2008 ExPW69/L (colly) is also addressed to the then Superintendent of the police, CBI and sent by PW69. Vide said communication, PW69 has forwarded a set of reasons for the opinion no. CH-210/2/2006 dated 04.08.2006 in 39 sheets, pertaining to RC.1(A)/2006/ACU-IV/CBI/ New Delhi. PW69 P. Venugopala Rao about this communication also has deposed that it has been sent by him and the certified copy thereof also bears his signatures.
169. It is not denied by the accused persons that communications dated 23.08.2006 PW 69/K and dated 04.04.2008 ExPW69/L (colly) were sent by PW69 P.Venugopala Rao. PW69 is the author of the aforesaid CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 117 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 two communications. Even their certified copies have been signed by him. Therefore, aforesaid two communications ExPW69/K and ExPW69/L, are admissible in evidence and stand proved.
170. Another communication dated 22.06.200/03/7/2006 ExPW69/M is also addressed to the then Supdt of police, CBI on behalf of the GEQD, Hyderabad. PW69 P. Venugopala Rao deposed that the said communication was sent by Sh. V.N Rajan and he identified his signatures as he has worked with him over a period of time and the certified copy of the said communication ExPW69/M bears the signatures of PW 69. That being so, this document is also admissible in evidence and stands proved.
171. During the cross examination of PW69, done on behalf of the accused persons, an attempt was made to show that the report of the expert ExPW69/I, has no value in the eyes of law as settled principles and parameters were not adopted while examining the documents; the reasons were not prepared at the time when the documents were examined is evident from the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 118 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 fact that the reasons were sent later on to the CBI and not alongwith the opinion; no work notes, charts, rough sheets, photocopy of the documents have been taken; the value of magnification in the report has not been mentioned; no opinion can be formed on the basis of photocopies etc.
172. In view of my aforesaid discussion , I am of the considered opinion that even if there is no work note or chart or rough sheets, it would not make any difference. Such type of proceedings, if any, might have been for internal assessment only and even if the same has not been made part of the final report, it is not going to affect the case of the prosecution. Similarly, not taking photographs and not specifically mentioning the value or extent of magnification of the document would also not go to the root of the matter.
173. During the cross examination, PW69 P. Venugopal has categorically replied that original documents were before him at the time of examination. He also replied that the typed version of the reasons is the same as Draft reasons. It is true that PW69 P. Venugopala CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 119 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Rao had not mentioned in the opinion that the reasons have been prepared separately, and this fact was also not mentioned at the time of preparation of the Draft reasons also but again this may be at the most procedural irregularity and would not be sufficient to reject the report of the Expert outrightly.
174. PW69 has sufficiently explained that during the examination of documents, freely written strokes do not exhibit deliberate disguise and generally it is without hesitation. He further replied that he had examined the document and described in detail about the individual writing habits and that the natural variations do occur in any individual's handwriting. However, his opinion is based on collective consideration. To one of the question put to him, PW69 P. Venugopala Rao replied during handwriting examination, apparent dissimilarities that occur between two sets of writings may be due to natural variations that occur in one and the same individual's writings and as an examiner, he searches for both the similarities as well as the dissimilarities.
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175. Regarding non mentioning about the dissimilarities in the reasons, PW69 replied that as there is no fundamental differences between the questioned writings and the standard writings, the same was not mentioned but he has already mentioned about the natural variations in para 3 of the reasons , and the same pertains to apparent dissimilarities.
176. Thus, it stands established that PW69 P.Venugopala Rao after examination of documents, gave his report ExPW69/I.
(d) Value of such expert opinion/report as per the Indian Evidence Act.
177. In a case titled as Magan Bihari Lal v. State of Punjab, (1977) 2 SCC 210, it was observed that :
7. In the first place, it may be noted that the appellant was at the material time a Guard in the employment of the Railway Administration with his headquarters at Agra and he had nothing to do with the train by which wagon No. SEKG 40765 was dispatched from Munda to Bikaner with the train which carried that wagon from Agra to Ludhiana. He was not a Guard on either of these two trains. There was also no evidence to CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 121 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 connect the appellant with the theft of the blank Railway Receipt at Banmore Station. It is indeed difficult to see how the appellant, who was a small employee in the Railway Administration, could have possibly come into possession of the blank Railway Receipt from Banmore Station which was not within his jurisdiction at any time. It is true that B. Lal, the handwriting expert, deposed that the handwriting on the forged Railway Receipt Ex. PW 10/A was that of the same person who wrote the specimen handwritings Ex. PW 27/37 to 27/57, that is the appellant, but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P. [AIR 1957 SC 381 ) that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Mishra v. Md. Isa [AIR 1963 SC 1728 , that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 122 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] where it was pointed out by this Court that experts evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. [AIR 1967 SC 1326 : ] and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial. It is interesting to note that the same view is also echoed in the judgments of English and American courts. Vide Gurney v. Langlands [1822 5 B and Ald 330] and Matter of Alfred Foster's Will [34 Mich 21] . The Supreme Court of Michigan pointed out in the last- mentioned case:
"Every one knows how very unsafe it is to rely upon any one's opinion concerning the niceties of penmanship
-- Opinions are necessarily received, and may be valuable, but at best this kind of evidence is a necessary evil."
We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 123 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 type of evidence, being opinion evidence, is by its very nature, weak and infirm and cannot of itself from the basis for a conviction. We must, therefore, try to see whether, in the present case, there is, apart from the evidence of the handwriting expert B. Lal, any other evidence connecting the appellant with the offence.
178. In another case reported as Chennadi Jalapathi Reddy v. Baddam Pratapa Reddy, (2019) 14 SCC 220 , it was held:
10. By now, it is well settled that the court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. It is also settled that it may not be safe to solely rely upon such evidence, and the court may seek independent and reliable corroboration in the facts of a given case. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it. In this respect, reference may be made to a long line of precedents that includes Ram Chandra v. State of U.P., AIR 1957 SC 381, Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529, Magan Bihari Lal v. State of Punjab, (1977) 2 SCC 210 and S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596 .
11. We may particularly refer to the decision of the Constitution Bench of this Court in Shashi Kumar Banerjee v.
Subodh Kumar Banerjee, AIR 1964 SC 529, where it was observed that the evidence of a handwriting expert can rarely be given precedence over substantive evidence. In the said case, the court chose to disregard the testimony of the handwriting expert as to the disputed signature of the testator of a will, finding such evidence to be inconclusive. The court CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 124 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 instead relied on the clear testimony of the two attesting witnesses as well as the circumstances surrounding the execution of the will.
12. On the other hand, in Murari Lal v. State of M.P., (1980) 1 SCC 704, this Court emphasised that reliance on expert testimony cannot be precluded merely because it is not corroborated by independent evidence, though the Court must still approach such evidence with caution and determine its creditworthiness after considering all other relevant evidence. After examining the decisions referred to supra, the Court was of the opinion that these decisions merely laid down a rule of caution, and there is no legal rule that mandates corroboration of the opinion evidence of a handwriting expert. At the same time, the Court noted that Section 46 of the Evidence Act, 1872 (hereinafter "the Evidence Act") expressly makes opinion evidence open to challenge on facts. In Alamgir v. State (NCT of Delhi), (2003) 1 SCC 21 , without referring to Section 46 of the Evidence Act, this Court reiterated the observations in Murari Lal v. State of M.P., (1980) 1 SCC 704, and stressed that the court must exercise due care and caution while determining the creditworthiness of expert evidence.
13. In our considered opinion, the decisions in Murari Lal v. State of M.P., (1980) 1 SCC 704 and Alamgir v. State (NCT of Delhi), (2003) 1 SCC 21 strengthen the proposition that it is the duty of the court to approach opinion evidence cautiously while determining its reliability and that the court may seek independent corroboration of such evidence as a general rule of prudence. Clearly, these observations in Murari Lal v. State of M.P., (1980) 1 SCC 704 and Alamgir v. State (NCT of Delhi), (2003) 1 SCC 21 do not go against the proposition stated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529, that the evidence of a handwriting expert should rarely be given precedence over substantive evidence.
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179. In another case titled as State of Bombay v.
Kathi Kalu Oghad, (1962) 3 SCR 10, it was held that :
10. "To be a witness" may be equivalent to "furnishing evidence" in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. "Furnishing evidence" in the latter sense could not have been within the contemplation of the Constitution makers for the simple reason that -- though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English law on the subject -- they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice.
Furthermore it must be assumed that the Constitution-makers were aware of the existing law, for example, Section 73 of the Evidence Act or Sections 5 and 6 of the Identification of Prisoners Act (33 of 1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken, if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so:"Measurements" include finger impressions and foot-print impressions. If any such person who is directed by a Magistrate, under Section 5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs, it has CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 126 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 been declared lawful by Section 6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly, Section 73 of the Evidence Act authorises the court to permit the taking of finger impression or a specimen handwriting or signature of a person present in court, if necessary for the purpose of comparison.
11. The matter may be looked at from another point of view. The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not "to be a witness". "To be a witness" means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said "to be a witness" to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma case [(1954) SCR 1077] that the prohibition in clause (3) of Article 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the court to produce that document in accordance with the provisions of Section 139 of the Evidence Act, which, in terms, provides that a person may CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 127 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, he cannot be cross- examined. Of course, he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in court otherwise than by reference to the contents of the documents. In our opinion, therefore, the observations of this court in Sharma case [(1954) SCR 1077] that Section 139 of the Evidence Act has no bearing on the connotation of the word "witness" is not entirely well-founded in law. It is well established that clause (3) of Article 20 is directed against self-incrimination by an accused person. Self- incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a "personal testimony". The giving of a "personal testimony" must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 128 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 though it may amount to furnishing evidence in the larger sense, is not included within the expression "to be a witness".
180. In another case titled as Lalit Popli v. Canara Bank, (2003) 3 SCC 583 , Hon'ble Supreme Court held that:
12. Sections 45 and 73 of the Indian Evidence Act, 1872 (in short "the Evidence Act") deal with opinion of experts and comparison of signature, writing or seal with others admitted or proved. Section 45 itself provides that the opinions are relevant facts. It is a general rule that the opinion of witnesses possessing peculiar skill is admissible. There was no challenge to the expertise of V.K. Sakhuja. He deposed to have testified in about ten thousand cases relating to disputed documents. Though the employee highlighted certain adverse remarks, it cannot be lost sight of that they were about four decades back. But we need not go into that aspect in detail as no infirmity in the report acted upon by the authority in the present case was noticed or could be pointed out.
13. It is to be noted that under Sections 45 and 47 of the Evidence Act, the court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three sections of the Evidence Act. They are CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 129 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the handwriting expert, the court can compare the admitted writing with the disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of the handwriting expert need not be invariably corroborated. It is for the court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when an expert's evidence is not there, the court has power to compare the writings and decide the matter. (See Murari Lal v. State of M.P. [(1980) 1 SCC 704 ).
181. In another case titled as Raghuvir Acharya, B. v.
CBI, (2014) 14 SCC 693 , Hon'ble Supreme Court held that :
28. In Murari Lal v. State of M.P. [(1980) 1 SCC 704 ,this Court held that in scenarios where there is an absence of expert opinion, a second screening in the form of the court's assessment is essential to CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 130 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 ascertain the authorship of document: (SCC p. 712, para 12) "12. ... There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] and Fakhruddin v. State of M.P. [AIR 1967 SC 1326 were cases where the Court itself compared the writings."
32. This Court in Fakhruddin v. State of M.P. [AIR 1967 SC 1326] has held that the premise of the witness claiming familiarity with the handwriting of the author must be tested: (AIR p. 1328, para 11) "11. Both under Section 45 and Section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 131 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case."
182. From the aforesaid judicial pronouncements, one may say that it is settled law that it is unsafe to base a conviction solely on expert opinion without substantial corroboration and this rule has been universally acted upon and it has almost become a rule of law. but it is not always true. In few cases , such an opinion , may be acted upon without asking for further corroboration. In the case of Murari Lal (supra), as relied upon by Ld. PP for the CBI, it was held by Hon'ble Supreme Court:-
"11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion- evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 132 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
12. The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which Judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and two [ Vide Correction slip No. F. 3/79 (Ed.J) dt. 21-8-80] voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its own conclusion. The duty cannot CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 133 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar [AIR 1967 SC 1326] and Fakhruddin v. State of M.P. [AIR 1967 SC 1326 ] were cases where the Court itself compared the writings."
183. Now take the case in hand. In the present case the situation is far better as the opinion of the expert is being used to corroborate the other material evidence available on record. In the present case expert opinion has been given by GEQD and the same is ExPW69/I. The report of the Expert is corroborated by the prosecution witnesses to the effect that certain documents/proceedings do not bear their signatures and they have denied having executed such documents etc. In these circumstances, it would be within the settled parameters of law, as narrated herein above, if the said report of the Expert ExPW69/I, is accepted and acted upon by this Court . The evidence of experts may not be conclusive regarding the handwriting but the opinion of an expert has great weight for CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 134 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 determination of forgery and fixing the responsibility of the accused persons.
184. In the background of this report, now it is to be seen as to how the forgery was committed and which documents and proceedings have been forged for revival of the present society? The nature of such documents and proceedings are as under:-
(a) Letter dated 25.12.2002 and the meeting dated 13.11.2002 is false and forged.
185. In the present case, the winding up order was passed on 20.12.1989. Thereafter, till 25.12.2002 i.e during the next 13 years there was no communication between the society and office of RCS. After 20.12.1989, first time communication sent on behalf of the society to the office of RCS is dated 25.12.2002 ExPW40/D. The said communication appears to have been sent to the office of RCS pursuant to the decision taken by the society in the meeting dated 13.11.2002.
186. PW40 Devender Kumar Gupta deposed the purported letter dated 25.12.2002 along with photocopy of CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 135 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Managing Committee meeting dated 13.11.2002 ExPW40/D (Colly) addressed to the Assistant Registrar, (South West) ,Registrar of Co-operative Societies, Sansad Marg, New Delhi is shown to have been written by him ( PW40) as President of Anchal CGHS Ltd but the signatures at point A on the said letter is not his signatures and the same is forged one. He further deposed that he was never elected as President of the Society.
187. PW40 was not cross examined by the accused persons except on behalf of the accused Sanjeev Bharti (A-4). Even during the cross examination of PW40 by A- 4, nothing could be elicited to disbelieve the story of prosecution. The aforesaid testimony of PW40 has gone unrebutted and unchallenged on the material points regarding the fact that PW40 never attended any such meeting dated 13.11.2002 ExPW40/A15 and never elected as President of the society and the communication ExPW40/D does not bear his signatures.
188. Vide communication dated 25.12.2002, ExPW40/D, a request was made to the office of RCS to take on record that pursuant to the decision taken in the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 136 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 meeting dated 13.11.2002, the registered address of the society has been changed to "Flat no. 61, Sector 7, Pkt -I (S/W Zone), Main Entrance, Dwarka, New Delhi"
189. PW12 Sh. G.P.S Angroola deposed that in the proceeding register ExPW12/H, signatures shown against serial no.2 at point X are not his signatures. The minutes of the meeting dated 13.11.2002 have been recorded in the said proceeding register. The said minutes suggest that the meeting was attended by one of the members namely Devender Kumar Gupta also. Devender Kumar Gupta has been examined by the prosecution as PW40. PW 40 deposed that the proceedings dated 13.11.2002 ExPW40/A15 were never attended by him and that his signatures appearing on the said proceedings are forged. He has categorically stated that he had never appended his signatures on the aforesaid proceedings. This testimony also of PW40 has gone unchallenged.
190. The communication dated 25.12.2002 ExPW40/D and the meeting dated 13.11.2002 ExPW40/A15 are forged and have been created by the accused persons for ulterior motive, is further CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 137 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 corroborated by the opinion of the expert ExPW69/I. PW40 D. K Gupta has categorically stated that communication dated 25.12.2002 ExPW40/D does not bear his signatures. The purported signatures of PW 40 on the said communication were given the question document as Q 459. Similarly, his purported signatures on the proceedings dated 13.11.2002 ExPW40/A15 have been given questioned documents as Q 995 and Q 1004. As per the report of the expert ExPW69/I, para 2, the questioned documents Q 459, Q 995 and Q 1004 were written by the person who wrote specimen signatures/writings S-1 to S 364. It has already come on the record that the specimen signatures from S-1 to S-364 ExPW45/A are of accused Vinod Gupta (A-7, proceedings already stand abated). Meaning thereby, these questioned documents/signatures Q 459, Q 995 and Q1004 were not signed or executed by PW40 D.K Gupta and the same were signed and created by accused Vinod Gupta (A-7, proceedings already stand abated).
191. Further, the communication dated 25.12.2002 was addressed to AR(SW), office of RCS, Sansad Marg and not to the office of West Zone in whose jurisdiction CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 138 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 the society was originally registered. Not only that, even the copy of said communication was not sent to the West Zone Office for information. There is nothing on record suggesting that any specific request was made to the S/W Zone office for getting the file transferred from West Zone to South West Zone. Generally, in such a situation, the application should have been moved to the West Zone with a request to transfer the file pertaining to the Society to the South West Zone.
192. PW54 Raj Bhushan Chauhan deposed that the letter dated 01.01.2003 ExPW54/A was sent by J.S. Sharma, AR (South-West) (A-2)and addressed to AR (West). This letter was marked to him by AR (West) Yogi Raj(PW67) and vide this letter, AR (South-West) had sought transfer of file of Anchal CGHS Ltd. to their zone pursuant to change of address. He further deposed that thereafter, he prepared a note dated 09.01.2003 ExPW54/B on the instructions of Sh. Yogi Raj (PW67), AR (West) for seeking approval of transfer of file of Anchal CGHS Ltd. to South-West Zone. The note ExPW54/B was put up before Sh. Yogi Raj(PW67), AR (West) who approved transfer of the file vide his approval CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 139 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 dated 16.01.2003, bearing his signature at point B and accordingly, file was sent to South-West Zone.
193. Vide ExPW54/A, dated 01.01.2003, a communication was sent to the AR(West) by AR(SW) regarding transfer of file from West Zone to South Zone.
194. Noting dated 09.1.2003 ExPW54/B indicates that the communication dated 01.1.2003 was taken up and it was proposed that file pertaining to the society may be transferred to SW Zone and accordingly, file was transferred to SW Zone and in the meantime a communication dated 14.1.2003 was sent with a request of revival of the society.
195. In view of my aforesaid discussion, it stands proved that the letter dated 25.12.2002 ExPW40/D and meeting dated 13.11.2002 ExPW40/A15 is forged and false.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 140 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
(b) Proceedings of General Body Meeting dated 15.12.2002 and the communication dated 14.1.2003 which was sent to the office of RCS for revival of the society is also false and forged.
196. As discussed earlier, vide seizure memo ExPW42/B, documents pertaining to the society were seized from the residence of PW58 Sanjay Thukral. Seizure memo ExPW42/B would indicate that the original Proceeding Register containing the proceedings dated 15.12.2002 and 23.3.2002 was also seized as mentioned at serial no.6. PW70, Bharat Singh deposed that said register seized by him is ExPW70/F. Perusal of the said register would indicate that it has original proceedings dated 15.12.2002 and 23.3.2002 pertaining to the society. These proceedings are not in dispute.
197. The proceedings dated 15.12.2002 ExPW2/B indicates that one of the resolutions passed was as under:
" Secretary D.K Gupta asked the present members to give their opinion/consent for the revival of the society. all the present members gave their consent CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 141 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 for approval of list of members. It was also decided by the members to authorise Sh. S.K. Singhal and Sh. Bhubaneswar Garg to approach the Hon'be Registrar for revival of the society and approval of list of members. This resolution was passed by 63/90 members".
198. In the said proceedings dated 15.12.2002, ExPW2/B, the new Managing Committee was also formed, which was as under:
1. Sushil Kumar Singhal President
2. Mrs. Raj Lata Gupta Vice President
3. Sh.S.K Singhal Member
4. Sh Bubhneswar Garg Member
5. Sh.S.K Aggarwal Member
6. Sh. Subhash Rustogi Member
7. Mrs. Madhu Chaudhary Member
199. In the said proceedings, Sushil Kumar Singhal is shown to have been elected as President. He has been examined as PW65 . He deposed that accused Sudershan Kumar Singhal (A-5, proceedings already stand abated) was his elder brother; he never became a member of any Group Housing Society. PW65 further deposed that the affidavit dated 10.2.2003 ExPW65/A was never executed CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 142 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 by him and it does not bear his signatures. In the said affidavit PW65 has been shown as Secretary of the Society, though denied by PW65. The affidavit does not have any date of verification of the affidavit, which further creates a doubt regarding execution of affidavit by PW65 as claimed by the accused persons.
200. PW65 further deposed that he did not execute another affidavit ExPW65/B dated 14.1.2003 and it does not bear his signatures. The said affidavit ExPW65/B is also on the record. The said affidavit is shown to have been executed by PW65 being a member of the society whereas PW65 has denied having executed the said affidavit. I have perused the same. Para 1 of the said affidavit is silent about the membership number of PW65 and the same was left over as blank. This affidavit has the verification date column at the end but the same is also blank.
201. PW65 further deposed that the application seeking membership of the society ExPW65/C does not bear his signatures. The resignation letter ExPW65/D also does not bear his signatures and even the affidavit CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 143 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 ExPW65/F does not bear his signatures. The said alleged undated application ExPW65/C is on the record. In the said application, the age of the PW65 has been shown as 50 years. It has been shown that PW65 became the member of the society in the year 1984. PW65 appeared before this court as a witness in the year 2019 and at that time, his age was 67 years, as told by him. Meaning thereby, in 1984 his age should have been 32 years only. But in the application ExPW65/C, this has been shown as 50 years which supports the claim of PW65 that he never became the member of the society and did not move any application seeking membership of the society.
202. This all is sufficient to establish that PW65 never attended the proceedings dated 15.12.2002. PW65 was not cross examined by the accused persons except by the accused Sanjeev Bharti (A-4), despite the opportunity given to them. Even during his cross examination by accused Sanjeev Bharti(A-4), nothing could be brought on record so that the testimony of this witness could be rejected on material points. The testimony of PW65 has gone unrebutted and unchallenged in this regard.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 144 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
203. PW1 Mrs. Madhu Chowdhary has been shown another member of the society who was elected as a member of Managing Committee vide proceedings dated 15.12.2002. But, she has denied having attended such a meeting. PW1 deposed that the affidavit ExPW1/A sworn in her name, does not bear her writing and signatures. Again this affidavit ExPW1/A is blank regarding verification date as no date has been mentioned. PW1 further deposed that the signatures shown on the proceedings dated 15.12.2002 at page 3 serial no. 17 against her name ExPW1/B does not belong to her.
204. PW1 was not cross examined on behalf of the accused persons despite the opportunity being given to them except one or two questions being asked on behalf of the accused Sanjeev Bharti (A-4). The testimony of PW1 has also gone unrebutted and unchallenged on material points.
205. Similarly, PW2 Satish Aggarwal has denied of having executed any affidavit ExPW2/A. He further denied having attended meeting of the society dated 15.12.2002 and signatures shown at page no.2 of the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 145 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 register at serial no.8 ExPW2/B to be his signatures.
206. PW7 Sh. Bhuwaneshwar Garg deposed that he never remained a member of any Cooperative Society including Anchal CGHS. He further deposed that he never applied for membership of Anchal CGHS nor executed any affidavit in any society. PW7 denied having executed affidavit ExPW7/A and his signature thereon. He further deposed that in the membership register ExPW1/C, his name has been shown at serial no.2 at point X on page 7 but the signatures appearing at point X-1 are not his signatures and he does not know how his name appears in the membership register.
207. PW10 Ankur Goenka deposed that he never became a member of Anchal CGHS and denied having executed the affidavit dated 14.01.2003 ExPW10/A at any point of time and signatures thereon. He also denied having executed the affidavit dated 17.01.2005 ExPW10/B and signatures thereon. He stated that all the particulars mentioned in ExPW10/A and ExPW10/B except the address are incorrect. He deposed that the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 146 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 photograph affixed at point X is his photograph and it was taken by Sudershan Kumar Singhal (A-5, proceedings already stand abated) who is the paternal uncle of his wife.
208. PW10 Ankur Goenka further deposed that in the General Body Meeting Register, his name has been mentioned against serial no.16 in the minutes of meeting dated 15.12.2002 ExPW2/B but the signatures shown at serial no.16 at point X are not his signatures.
209. PW11 Jai Prakash Gupta denied having executed affidavits dated 14.1.2003 ExPW11/A and dated 17.1.2005 ExPW11/B and his signatures thereon stating that he never executed any affidavit. PW11 also denied having signed any minutes of meeting dated 15.12.2002 ExPW1/B and the signatures appearing against serial no.18 against his name to be his signatures.
210. PW61 Subhash Rustagi deposed that he never became a member of the present society. The application ExPW61/A purportedly seeking the membership does not bear his signatures and the affidavit ExPW61/B dated CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 147 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 14.01.2003 and ExPW61/C dated 17.01.2005 do not bear his signatures. He has also denied his signatures on the proceedings dated 15.12.2002 ExPW2/B. Meaning thereby, he had not attended the meeting dated 15.12.2002 ExPW2/B.
211. PW6 Surender Kumar deposed that he never remained a member of any Cooperative Society including Anchal CGHS. He denied having executed an affidavit dated 17.1.1005 ExPW6/A and his signature thereon. After going through the application for membership ExPW6/D, he deposed that it does not bear his signatures and even the particulars in respect of his parentage are not correct.
212. PW2 Satish Aggarwal, PW6 Surender Kumar Sharma , PW7 Bhuneshwar Garg, PW10 Ankur Goenka, PW11 Jai Prakash Gupta and PW61 were not cross examined by the accused persons who are presently facing the trial. Their testimonies have gone unrebutted and unchallenged and there is nothing on record to disbelieve the same.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 148 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
213. Further, the testimonies of aforesaid prosecution witnesses have been corroborated by the opinion of an Expert ExPW69/I. PW65 Sushil Kumar Singhal deposed that the affidavit dated 10.02.2003 ExPW 65/A was never executed by him and it does not bear his signatures. The signatures on the aforesaid affidavit ExPW65/A have been given questioned documents as Q 91 and Q 92. PW65 further deposed that another affidavit dated 14.1.2003 ExPW65/B was also not executed by him and the same does not bear his signatures. The signatures on the affidavit ExPW65/B allegedly signed by PW65 were given questioned documents as Q 167 and Q 168.
214. It has come on record that as per the report of the expert ExPW69/I, para 10, the person who wrote the S 618 to S 625 ( belonging to Sushil Kumar Singhal (PW65) did not write the questioned document Q 91 and Q 92 and as per para 4 of the said report, the person who wrote S 441 to S 546 also wrote the questioned documents Q 167 and Q 168. It has already come on the record that the specimen signatures S-441 to S 546 ExPW56/C are that of accused Sudhershan Kumar Singhal (A-5, proceedings already stand abated).
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 149 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
215. PW1 Ms Madhu Chaudhary deposed that the affidavit ExPW1/A does not bear her signatures. Signatures on the affidavit ExPW1/A have been given as Q 149 and Q150. She further deposed that proceedings dated 15.12.2002 ExPW1/B also does not bear her signatures and her signatures have been given as Q 21. As per the report of the expert ExPW69/I , para 11, the person who wrote the specimen signatures S-626 to S 629( belonging to PW1 Madhu Chaudhary) did not write the questioned documents Q 21, Q 149 and Q 150 also.
216. PW2 Satish Aggarwal deposed that the affidavit ExPW2/A does not bear his signatures. Signatures on the affidavit ExPW2/A have been given as Q 633 and Q 634. He further deposed that he was never the member of the society and the proceedings dated 15.12.2002 ExPW2/B also does not bear his signatures and his signatures have been given as Q 20. As per the report of the expert ExPW69/I , para 2, the person who wrote the specimen signatures S 1 to S 364 ( belonging to the accused Vinod Kumar Gupta (A-7, proceedings already stand abated) CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 150 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 also wrote the questioned document Q 20. It is further evident from the report ExPW69/I, para 3 of the report, the persons who wrote specimen signatures S 365 to S 440 (belonging to the accused Satish Gupta (A-6, already stand convicted), also wrote the questioned documents Q 633 and Q 634. Meaning thereby, there is a forgery to the aforesaid documents as committed by the accused Satish Gupta (A-6, already stand convicted).
217. PW7 Bhuvaneshwar Garg deposed that the affidavit dated 14.01.2003 ExPW7/A does not bear his signatures. Signatures on the affidavit ExPW7/A have been given as Q 120 and Q 121. He further deposed that the proceedings ExPW1/C also does not bear his signatures and his signatures have been given as Q 38. As per the report of the expert ExPW69/I , para 13, the person who wrote the specimen signatures S 638 to S 644 ( belonging to PW7 Bhuvneshwar Garg) did not write Q 120 & 121 and Q 38 .
218. PW10 Ankur Goenka deposed that the affidavit dated 14.01.2003 ExPW10/A does not bear his signatures. His signatures on the affidavit ExPW10/A have been CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 151 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 given Q 152 and Q 153. He further deposed that another affidavit dated 17.01.2005 ExPW10/B also does not bear his signatures and his signatures on this affidavit have been given as Q 615 and Q 616. He also denied having attended any meeting of the society and deposed that the proceedings dated 15.12.2002 ExPW2/B also does not bear his signatures and his signatures have been given Q document as Q 18. As per the report of the expert ExPW69/I, para 4, the person who wrote the specimen signatures S 441 to S 546 ( belonging to A-5 Sudhershan Kumar Singhal ( proceedings already stand abated ) also wrote Q 18, Q 152, Q 153, Q 615 and Q 616 .
219. PW11 Jai Prakash Gupta deposed that the affidavit dated 14.01.2003 ExPW11/A does not bear his signatures. His signatures on the affidavit ExPW11/A have been given as Q 146 and Q 147. He further deposed that another affidavit dated 17.01.2005 ExPW11/B also does not bear his signatures and his signatures on this affidavit have been given as Q 621 and Q 622. He further deposed that the proceedings dated 15.12.2002 ExPW2/B does not bear his signatures and his signatures have been given Q document as Q 22. As per the report of the expert CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 152 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 ExPW69/I , para 4, the person who wrote the specimen signatures S 441 to S 546 ( belonging to A-5 Sudhershan Kumar Singhal (proceedings already stand abated ) also wrote the questioned documents Q 22 , Q 146 and Q 147 and Q 621 and Q 622 .
220. PW61 Subhash Rustagi deposed that the application for membership ExPW61/A does not bear his signatures and his signatures on ExPW61/A has been given as Q 534. He further deposed that the affidavit dated 14.01.2003 ExPW61/B does not bear his signatures. Signatures of PW61 on the affidavit ExPW61/B have been given as Q 143 and Q 144. He further deposed that the proceedings ExPW2/B also does not bear his signatures and his signatures have been given Q document as Q 23. As per the report of the expert ExPW69/I , para 4, the person who wrote the specimen signatures S 441 to S 546 (belonging to A-5 Sudhershan Kumar Singhal (proceedings already stand abated ) also wrote the questioned documents ( Q 23, Q 534, Q 143 and Q 144.
221. PW6 Surender Kumar Sharma deposed that the affidavit ExPW6/A does not bear his signatures.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 153 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Signatures of PW6 on the affidavit ExPW6/A have been given Q documents as Q 624 and Q 625. He further deposed that the application for membership ExPW6/D does not bear his signatures and his signatures on ExPW6/D have been given as Q 532. He further deposed that the proceedings ExPW2/B also does not bear his signatures and the same have been given as Q 24. As per the report of the expert ExPW69/I , para 4, the person who wrote the specimen signatures S 441 to S 546 ( belonging to A-5 Sudhershan Kumar Singhal ( proceedings already stand abated ) also wrote the questioned documents Q 24 and Q 624 .
222. Another aspect of the matter is that at the time when the request was made to the office of RCS for revival of the society vide communication dated 14.2.2003, it was claimed that there are 27 enrollments of additional members which took place in the year 1984. But the noting file ExPW70/H maintained by the office of RCS is silent about this new enrollment in the year 1984. After the noting dated 26.10.1983, the next noting is dated 16.10.1986. There was no communication during the period between 26.10.1983 to 16.10.1986 i.e almost for CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 154 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 three years. Vide noting dated 16.10.1986, it was proposed that since the society has not submitted the final list of members for allotment of land from DDA, hence Show Cause Notice was placed for signature. This happened in the year 1986. Despite that nothing was done till 1989, when the society was in fact wound up. In case 27 new members were enrolled in the year 1984, then there was no occasion to not to inform the same to the office of RCS.
223. Thus, the prosecution has been able to establish that the proceedings dated 15.12.2002 ExPW2/B recorded on behalf of the society are forged and false and consequently, the communication dated 14.01.2003, which was sent to the office of RCS for revival of the society is based upon the forged proceedings.
(iv) What is the role of accused persons?
Role of accused persons namely Narayan Diwakar (A-1) and Raman Verma(A-3) CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 155 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
224. During the relevant time, accused Raman Verma (A-3) was posted as a dealing assistant in the office of RCS and accused Narayan Diwakar (A-1) was working as Registrar. The present society was wound up on 20.12.1989. Thereafter, an application dated 14.01.2003 on behalf of the society was moved making a request for revival of the society. It is alleged that vide order dated 14.02.2003, accused Narayan Diwakar (A-1) in the capacity of Registrar, RCS, passed the revival order. The said application dated 14.01.2003 was processed by accused Raman Verma (A-3) at the first instance and then it was placed before accused Narayan Diwakar (A-1) who was working as Registrar through accused no.2 J.S Sharma (proceedings already stands abated) in the capacity of the then Assistant Registrar. According to the prosecution, the aforesaid entire proceedings were passed upon the basis of false and forged documents and accused Raman Verma (A-3) and accused Narayan Diwakar (A-1) processed the request of the society by ignoring certain material facts and the revival order was passed. The role of these two accused persons is connected to each other therefore, the same is being discussed together.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 156 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
225. It has already come on record that revival order dated 14.02.2003, was passed on the basis of forged and false documents and proceedings. The said order could not have been passed in case accused Raman Verma (A-3) and accused Narayan Diwakar (A-1) were not a party to the criminal conspiracy hatched by them. The entire proceedings being recorded would give only one conclusion that it was done in furtherance of the said criminal conspiracy and with ulterior motive. The reasons for arriving at such a conclusion, are as under:
i. It is not in dispute that the society was initially registered with the address at 7, Sethi Bhawan, Rajendra Place, New Delhi - 8, which was within the jurisdiction of West Zone. The application dated 25.12.2002 ExPW40/D , which was found to be processed, was moved to South West Zone with a request to take on record the change of address from West Zone to South West Zone. The said application was finally approved vide order dated 16.01.2003 by Sh. Yogi Raj (PW67), the then AR(West) ExPW54/B and accordingly the file was sent to South West Zone. This indicates the guilty mind on the part of the accused persons that instead of moving the application to the West Zone with a request to transfer the file to the South West Zone, the application was directly moved to the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 157 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 South West Zone. Further, the application was promptly processed and approved.
ii. A request for the revival of the society was made vide communication dated 14.01.2003 to the South West Zone even prior to the transfer of file from West Zone to South West Zone. As stated herein above, the final approval on the request of the society dated 25.12.2002 ( this letter is addressed to SW) regarding change of address was finally given on 16.01.2003 but the application for revival of the society was moved on 14.01.2003 Ex. PW65/I-1 & 2 , which is prior to the transfer of the file. On 14.1.2003, the South West Zone was not having the file pertaining to the present society despite that the application was accepted and processed further.
iii. The application dated 14.01.2003 Ex was moved by the accused Sudershan Kumar Singhal (A-5, proceedings already stand abated), in the capacity of Secretary of the society, but he was not even an original member of the society. In the background of the fact that present society was wound up on 20.12.1989 and there was no proceedings for the next 13 years, a request is being made on behalf of such a society, the accused Raman Verma(A-3), who initiated a note dated 14.01.2003 on the basis of said request was at least supposed to peep into the old records of the society readily available with the RCS office, which CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 158 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 was initially ignored deliberately by accused Raman Verma and then by accused Narayan Diwakar (A-1).
iv. The note dated 22.1.2003 ExPW53/A2 recorded "the instant proposal for revival of Anchal Coop G/H society ltd have been forwarded by AR(SW) under section 63 of Delhi Coop Societies Act,1972. If agree, we may issue notice to the President/Secretary of the society for initial hearing u/s 63 of the DCS, Act, 1972 in the court, submitted please".
v. The note dated 04.02.2003 ExPW53/C would indicate that it has been shown that Sh. Satish Gupta (A-6, already convicted) , in the capacity of Vice President of the society, appeared and the proceedings were adjourned for 11.2.2003, by accused Narayan Diwakar (A-1) . At that time, accused Satish Gupta (A-6, already stand convicted) was also not even a member of the society, as evident from the list of members submitted alongwith the request of revival.
vi. As per noting dated 11.02.2003, ExPW53/H accused Satish Gupta ( A-6, already stands convicted) is again shown to have attended the office of RCS in the capacity of Vice President of the Society. As stated herein above accused Satish Gupta (A-6, already stands convicted ) was not even a member of the society despite that he was allowed to CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 159 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 represent the society.
vii. It is very easy for the accused persons to argue that it was the duty of the society to verify the documents and the list of members submitted to the office of RCS and the officers of the RCS had no mechanism to verify the same. It is not denied that the office of RCS had the list of original members and the details of the Managing Committee of the society. When the society was non functional for such a long period, the list of members submitted on behalf of the society in the year 2003 and the person who represented the society, could have easily been verified firstly by the accused Raman Verma (A-3) and then by accused Narayan Diwakar (A-1).
viii. Another incriminating piece of evidence which has come on record that the society was initially registered with 63 members and 27 new enrollments were made in the year 1984 but at that time when the request for revival of the society was made, none of the original members or the office bearers of the Managing Committee of the society were in picture. Not even an effort was made on behalf of the present accused persons to know about the status of the alleged Managing Committee or the members on the background of the fact that after such a long period of CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 160 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 time, after the society was declared defunct and wound up, and new managing committee allegedly took over the control of the society, this also goes against the accused persons.
ix. Another material piece of evidence fixing the responsibility of accused Raman Verma (A-3) and Narayan Diwakar (A-1) is that they accepted the version of the society in the year 2003, which was based upon the forgery and false proceedings to the effect that 27 new members were enrolled on 25.07.1984 pursuant to the resolution of the society dated 25.07.1984.
x. If new members were enrolled in the year 1984, there was no occasion or reason for the society not to inform the same to the office of RCS immediately and it makes crystal clear the involvement of both these accused persons to the criminal conspiracy.
xi. The notings pertaining to the society recorded by the office of RCS placed in the file ExPW70/H, not disputed by the accused persons, would indicate that there is no proceedings recorded qua the new enrollments in the year 1984. The noting dated CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 161 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 22.9.1983 recites " Registration certificate and Bye Laws are placed for signature please" and the last noting during the year 1983 is dated 26.10.1983 which recorded " received copy of the Registered Bye Laws". The next noting is dated 15.10.1986 which says that "
Society has not submitted the final list of members for the allotment of land from the DDA, hence, fair Show Cause Notice is placed for signature". Meaning thereby, there were no proceedings after 26.10.1983 till 15.10.1986 pertaining to the society, which indicate beyond reasonable doubt that the alleged new enrollments on 27.07.1986 were fake and forged.
Role of accused Sanjeev Bharti (A-4)
226. It is the case of prosecution that accused Sanjeev Bharti (A-4) during the relevant time was posted as Stenographer, in the office of RCS Delhi and vide revival order dated 14.2.2003, he was appointed as the Election Officer to conduct the election of the Anchal CGHS within 2 months of the revival. It is alleged that accused Sanjeev Bharti (A-4) submitted a false report dated 27.03.2003 showing that the the election for the managing committee of the society were conducted on 23.3.2003 CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 162 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 whereas the said report and the proceedings of the meeting dated 23.3.2003, which bear signatures of accused Sanjeev Bharti (A-4), are entirely false as the various members who shown to have been elected to the Managing Committee of the Society, have denied having attended any such meeting.
227. It has already come on record that the revival order dated 14.2.2003 was passed by the accused Narayan Diwakar(A-1) . It is not in dispute that vide said revival order accused Sanjeev Bharti (A-4) was appointed as Election Officer to conduct the election of the society. It is also not in dispute that accused Sanjeev Bharti (A-4) conducted the election on 23.03.2003 and the report to this effect was submitted by him on 27.03.2003. During the statement of the accused recorded under section 313 CrPC, accused Sanjeev Bharti (A-4) has not denied the aforesaid facts rather categorically admitted that he conducted the election of the society.
228. Further,the aforesaid facts have clearly come on the record during the cross-examination of PW70 Shri Bharat Singh, who is the IO of the present case. Here I CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 163 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 may refer to the cross-examination of PW 70 Bharat Singh, as done on behalf of the accused Sanjeev Bharti, The relevant portion of cross examination of PW 70 in this regard is being reproduced as under:-
"........It is correct that accused Sanjeev Bharti was appointed as election officer vide order dated 14.2.2003 which is the revival order.It is also correct that A4 Sanjeev Bharti was appointed as Election Officer after the approval list of members was sent by AR(SW) to AR(P) and in turn by AR (P) to DDA. It is also correct that after revival of Anchal CGHS, the election report dated 27.3.2003 was not sent to DDA ever. The said election report is now Ex PW 70/A4/X1....."
229. Now the question arises whether the election as conducted by the accused Sanjeev Bharti was genuine or a false election report dated 27.3.2003 was submitted?
230. The election report dated 27.3.2003, ExPW70/A4/X1 (Mark PW70/DX2) is already on the record. The said report says that the meeting for the purpose of the election of the Managing Committee was called on 23.03.2003 for the post of one President, one Vice President and five Managing Committee Members at the registered office of the society and the results of the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 164 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 same were declared on the same day.
231. It has also already come on the record, as discussed earlier, that vide seizure memo ExPW42/B, certain documents/records pertaining to the society were seized by the IO from the residence of Sanjay Thukral(PW58). One of the documents, as seized, was mentioned at serial no.6 of the said seizure memo, the original proceeding register containing the proceedings dated 15.12.2002 and 23.03.2003 is ExPW70/F. The said proceeding register ExPW70/F is having the proceedings of the minutes dated 23.3.2003, whereby it has been shown that the meetings was attended by around 30 members of the society and the following members were declared elected:
(i) Sh Bhuvneshwar Garg President
(ii) Sushil Kumar Singhal Vice President
(iii) Satish Kumar Aggarwa Member
(iv) Sudershan Kumar Singhal Member
(v) Subhash Rustogi Member
(vi) Madhu Chaudhary Member
(vii) Raj Rani Gupta Member
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 165 of 233 )
CBI No. 121/19
CNR No.DLCT110005402019
232. As stated herein above, it has been shown that the meeting dated 23.3.2003 ExPW1/C was attended by around 30 persons. Some of them have been examined as prosecution witnesses.
233. PW8 Sh. Gyan Chand is shown to have attended the meeting and his name is appearing at serial no.9. He deposed that the signatures appearing on the proceedings ExPW1/C at serial no.9 are not his signatures.
234. PW10 Ankur Goenka is shown to have attended the said meeting but he deposed that the signatures appearing at point X on the aforesaid proceedings ExPW1/C against serial no.12 are not his signatures.
235. PW11 Jai Prakash Gupta is also shown to have attended the said meeting ExPW1/C but he deposed that the signatures appearing against serial no.24 are not his signatures.
236. PW12 G.P.S Angroola, who was the President of the Society at the time of registration, has deposed that he resigned from the membership of the society and had CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 166 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 never attended the meeting dated 15.12.2002 ExPW2/B and 23.3.2003 ExPW1/C.
237. Similarly, PW13 J.K Marwaha who was the Secretary of the Society at the time of registration also deposed that he does not know about the meeting/proceeding dated 23.3.2003 ExPW1/C and he does not know about the members of the Managing Committee, as mentioned in the said minutes of meetings.
238. PW14 Babu Ram also deposed that he had not attended the meeting dated 15.12.2002 ExPW2/B and general body meeting dated 23.3.2003 ExPW1/C.
239. PW40 Devender Kumar Gupta also deposed that he had also not attended the meeting dated 23.3.2003 ExPW1/C and the purported signatures at serial no. 19 are not his signatures.
240. As stated in preceding para's, vide proceedings dated 23.3.2003 ExPW1/C some members were shown to have been declared elected in the Managing Committee. Some of them have been examined as prosecution CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 167 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 witnesses. PW1 Madhu Chaudhary, who is shown to have been elected as a member vide meeting dated 23.03.2003, has categorically stated that her signatures appearing against her name at serial no. 7 on the proceedings dated 23.03.2003, ExPW1/C are not her signatures. She further stated that she had never attended any meeting of the society dated 23.3.2003.
241. PW2 Satish Aggarwal, who is also shown to have been elected as a member vide aforesaid meeting dated 23.3.2003 ExPW1/C, also deposed that the signatures appearing against his name on the aforesaid proceedings dated 23.3.2003 ExPW1/C are not his signatures.
242. PW7 Bhuwaneshwar Garg, who is shown to have been elected as President in the said meeting, deposed that he does not know as to why his name has been shown at Sl. No at point X on the proceedings ExPW1/C and signatures at point X-1 are not his signatures.
243. Similarly, PW61 Subhash Rustogi, who is also CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 168 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 shown to have been elected as a member vide aforesaid meeting deposed that the signatures appearing at point C on the aforesaid proceedings ExPW1/C at Sl No. 6 are not his signatures.
244. PW65 Sushil Kumar Aggarwal, who was allegedly elected as Vice President in the said meeting, deposed that he never attended the meeting of the present society as he was not a member. He further deposed that his signatures appearing at point A against Sl.No 1 on the aforesaid proceedings dated 23.3.2003 ExPW1/C ( mark PW65/G) are not his signatures and he has been falsely shown as Vice President of the society.
245. PW1 Madhu Chaudhary, PW2 Satish Aggarwal, PW7 Bhuwaneshwar Garg, PW61 Subhash Rustogi, and PW65 Sushil Kumar Aggarwal have even denied having become members of the society then the question of electing PW7 Bhuwaneshwar Garg as President and PW65 Sushil Kumar Aggarwal as Vice President did not arise. These witnesses were as such not cross-examined on behalf of the accused persons except for a few questions put by one or two accused persons, but the fact CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 169 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 of the matter is that the testimonies of the aforesaid witnesses to the effect that they had never attended the meeting dated 23.3.2003 and their purported signatures appearing on the aforesaid proceedings ExPW1/C are not their signatures, have gone unrebutted and unchallenged. This is sufficient to hold that the proceedings dated 23.3.2003 ExPW1/C are forged and have been manipulated by the accused Sanjeev Bharti (A-4) in connivance with the other co-accused person.
246. Now, the next question is what is the effect of the report dated 27.3.2003 ExPW70/A4/X-1 (Mark PW70/DX2) which was found to be based upon the forged and false proceedings?
247. The main contention of the accused Sanjeev Bharti (A-4) is that prior to the order of revival dated 14.2.2003, he was not at all in picture regarding proceedings of the society and he had been appointed as election officer vide order dated 14.2.2003, therefore, he cannot be held liable for being a party to the criminal conspiracy along with other co-accused persons in the process of revival of the society; the election of the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 170 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 society has never been a prior condition to its revival and it had a very limited purpose.
248. It was vehemently argued by the Ld. Defence Counsel that the election of a Co-Operative Group Housing Society and the allotment of land to the Society are two different acts and have no relevance to each other. There is nothing on record indicating that the election of the society was must for allotment of land by the DDA as it has come on the record that the DDA allots the land only on the basis of the approved list of members sent to DDA by the office of the RCS, and the election report dated 27.3.2003 was never used for any purpose.
249. The argument addressed on behalf of the accused Sanjeev Bharti (A-4), on the face of it, appears to be an impressive one. One can say that since list of the approved members have already been sent to the DDA for allotment of land after the society was revived vide order dated 14.2.2003, therefore, the election of the society has no relevance at all. But, such an argument can not be accepted in the given facts and circumstances of the present case.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 171 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
250. The revival order dated 14.2.2003, passed by the then Registrar Narayan Diwakar, who is co-accused no.1 in the present case, also recites "...in addition to above, keeping in view the principle of natural justice and cooperative spirit, I hereby appoint Sh. Sanjeev Bharti, Gr III of this department as Election Officer to conduct the election of the Managing Committee of the Society within two months of the issue of this order. The President/Secretary of the society are directed to co-operate with the Election Officer, so appointed, failing which action will be initiated against the Society...". The aforesaid order of the appointment of accused Sanjeev Bharti (A-4) as an Election Officer and then conducting the election of the Society ,is just not a mere formality. The election of the Group Housing Societies, at any time, is an important statutory requirement under the Delhi Co-operative Society Act, 1972, as the then applicable.
251. Even if, for the sake of argument, it is presumed that the holding of an election has no relevance to the allotment of land by the DDA after the list of approved members is submitted to it, it is still not a licence to the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 172 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 accused Sanjeev Bharti (A-4) to commit forgery in the proceedings of the election pertaining to the Group Housing Society. A public servant is always supposed to act fairly and is not expected to create a false record. Creating a false record and submitting the report dated 27.3.2003 itself amounts to cheating also in addition to the forgery.
252. One should not forget that in the present case, accused persons have been charged for attempting to commit an offence in addition to the substantial offence u/s 120 IPC. It is a matter of common knowledge that once an approved/ freezed list of members of society is forwarded by the office of RCS to the DDA for allotment of land, then the next step would be Draw of Lots to be conducted by the DDA.
253. It is true that in the present case, no land has been allotted, so there was no draw of lots. But after the revival of the society, holding a genuine election, could have been a step towards unearthing the entire chain of events on the basis of which forged documents and records were created by the accused persons and the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 173 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 society was revived vide order dated 14.2.2003. Meaning thereby, had the report dated 27.3.2003 been genuine, the accused Sanjeev Bharti (A-4) could have pointed it out, rather than concealing the material facts in furtherance of the criminal conspiracy and recording the forged proceedings dated 23.3.2003 ExPW1/C.
254. One of the main arguments addressed on behalf of accused Sanjeev Bharti (A-4) was that holding an election was not mandatory. Even If the holding of elections was not mandatory, still there was no occasion or reason for the accused, Sanjeev Bharti (A-4), to create false proceedings.
255. In view of my aforesaid discussion, prosecution has been able to establish beyond reasonable doubt that in furtherance of the criminal conspiracy, accused Sanjeev Bharti(A-4) recorded the forged proceedings dated 23.3.2003 ExPW1/C and submitted a false report dated 27.3.2003 ExPW70/A4/X-1 (Mark PW70/DX2).
Role of accused Ashutosh Pant (A-8) CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 174 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
256. The allegations against the accused Ashutosh Pant (A-8) are that he entered into a criminal conspiracy along with other co-accused persons to cheat the office of RCS and DDA by dishonestly and fraudulently inducing them to revive and approve the final list of 90 members of the society which included the fake members, on the basis of false and forged documents for getting the land allotted from the DDA at cheaper rates.
257. It is alleged that pursuant to the said conspiracy, accused Ashutosh Pant (A-8) got prepared the membership register and proceeding register and forged the signatures of members on those proceedings which has been confirmed by the opinion of the GEQD.
258. It is further alleged that one Dharambir Singh Rana, who has been shown in column no.12, get the membership register and proceeding register prepared from the accused Ashutosh Pant (A-8) and subsequently sold these documents to accused Vinod Gupta (A-7, proceedings already stand abated) who further sold these documents to accused Sudershan Gupta (A-5, proceedings already stand abated). The role assigned to the accused CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 175 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Ashutosh Pant (A-8) is that he prepared the membership register and proceeding register by forging the signatures of some members. Although, prosecution has examined 71 witnesses but admittedly, none of the witnesses has said anything in this regard against accused Ashutosh Pant (A-8) alleging that he had prepared the membership register and proceeding register except the testimony of Expert and the IO.
259. It appears from the entire record that accused Ashutosh Pant (A-8) has been made an accused on the basis of GEQD opinion only.
260. During the investigation, specimen writings/ signatures of the accused Ashutosh Pant (A-8) were taken by the IO and the same were sent to the GEQD for examination. GEQD has already given the report ExPW69/I. That being so, now it is to be seen whether the specimen signatures and writings were taken and what is the effect of the opinion of the expert qua accused Ashutosh Pant (A-8).
261. PW46 Sh Vishwa Mittel Bhagi deposed that CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 176 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 during the year 2006, he was working as Administrative Officer in the office of RCS; On 19.06.2006, he received a call from Duty Officer of CBI asking him to reach CBI Office; he attended CBI Office on that day i.e 19.6.2006 at Khan Market and met Duty Officer and the IO. PW46 further deposed that IO told him that they were obtaining specimens of handwriting and signatures of one Ashutosh Pant and Raman Verma; IO requested PW46 to be a witness to said proceedings.
262. PW46 further deposed that aforesaid two persons gave their specimen of handwriting and signatures voluntarily and he (PW46) had also signed on those sheets as a witness. PW46 was shown the specimen of signatures/handwriting sheets pertaining to the accused Ashutosh Pant( A-8) from S-721 to S-920 of D-20, consisting of 200 pages and after going through the same, PW46 stated that the said specimen signature sheets bear his signatures at point A on all the pages and same are Ex.PW46/A (colly.).
263. During his cross examination done on behalf of CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 177 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 the accused Ashutosh Pant (A-8), PW46 replied that he had reached CBI Office at about afternoon and remained there for 2-3 hours; he does not remember the name of the Duty Officer; Duty Officer did not obtain any entry from him; accused Ashutosh Pant (A-8) and Raman Verma (A-
3) were already present at the CBI Office when he met me; he had not checked the identity of those two persons; those two persons were giving specimen of handwriting and signatures on the directions/instructions of the CBI Officers; both of them were sitting at some distance and gave specimen simultaneously and he had put his signatures at the end after both these persons had written the specimen sheets and after the process, his statement was not recorded.
264. During the cross examination of PW46, it has come on the record that he has been a witness to the taking over of specimen signatures and handwritings in around 150-200 cases and he was attached with the CBI office for liasoning work.
265. If PW46 Sh Vishwa Mittel Bhagi is to be believed, then specimen writings and signatures of the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 178 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 accused Ashutosh Pant (A-8) were taken on 19.6.2006 vide ExPW46/A (Colly). The proceedings ExPW46/A (colly) are on the record which indicates that the proceedings were recorded on 19.06.2006. PW46 Sh Vishwa Mittel Bhagi has deposed that specimen writings and signatures of another co-accused Raman Verma (A-3) were also taken on the same day i.e 19.06.2006 vide proceedings ExPW46/B (colly).
266. The Proceedings ExPW46/B (colly) would indicate that specimen writings/signatures pertaining to the accused Raman Verma (A-3) were taken on 01.06.2006. The proceedings ExPW46/A (colly) and ExPW46/B (colly) would indicate that PW46 Sh Vishwa Mittel Bhagi is a witness to the said proceedings.
267. PW70 Bharat Singh, who is the IO of the present case, deposed that he had also obtained the specimen writings/signatures of accused Raman Verma (A-3) on 1.6.2006 in the presence of independent witness Vishwa Mittel Bhagi (PW46) and the same is ExPW46/B. If the IO PW70 Bharat Singh is to be believed then specimen writings/signatures of accused Raman Verma CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 179 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 (A-3) were not taken on 1.6.2006 but PW46 Vishwa Mittel Bhagi has categorically explained as to how and in what manner specimen writings/signatures of both aforesaid accused persons namely Raman Verma (A-3) and Ashutosh Pant (A-8) were taken on 19.6.2006. It is not that there is some typographical mistake about the date or about presence of aforesaid two accused persons in the office of CBI on 19.6.2006 when the specimen writings/signatures of these two accused persons were allegedly taken.
268. There is material contradiction about the taking over of specimen writings/signatures of accused Ashutosh Pant (A-8) which has created a serious doubt in the story of prosecution as far as accused Ashutosh Pant (A-8) is concerned.
269. The aforesaid doubt is further multiplied from the reply given by the IO PW70 Bharat Singh during his cross examination done on behalf of accused Ashutosh Pant (A-8). The said cross examination is not so lengthy and is relevant, therefore, for the sake of convenience, same is reproduced as under:
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 180 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 " The specimen writings taken in the present case were taken by making the person giving the specimen writing copy material from any random material like newspaper given to them for the purpose. I may have also given the documents of this case to such persons for giving them specimen writings. It is incorrect to suggest that I have falsely implicated A8 Ashutosh Pant without any incriminating material against him."
270. According to the IO PW70 Bharat Singh, specimen writings/signatures of accused Ashutosh Pant (A-8) were taken by providing him with any random material i.e newspaper. PW70 was not sure whether he had given the documents of this case to said accused person before taking the specimen writings/signatures. I could not understand as to how on the basis of a newspaper, the specimen signatures/writings of the accused Ashutosh Pant (A-8) were taken?
271. PW69 P.Venugopal deposed that the documents pertaining to the present case was received by the GEQD, Hyderabad from CBI vide letter dated 13.06.2006 ExPW69/A, which were allotted to him for examination. He further deposed that further documents were received by his office from CBI vide letter dated 21.07.2006 CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 181 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 ExPW69/F. A careful perusal of the aforesaid communications would indicate that vide letter dated 13.6.2006 ExPW69/A , specimen writings/ signatures of accused Raman Verma (A-3) from S-697 to S-720 were sent but not of accused Ashutosh Pant (A-8). When it is the case of the prosecution that the specimen writings /signatures of accused Raman Verma (A-3) was taken on 01.06.2000, same were sent to GEQD on 13.06.2006 whereas the specimen writings/signatures of accused Ashutosh Pant (A-8) from S-721 to S-920 were sent to GEQD on 21.7.2006. This also supports the case of defence to the effect that specimen writings/signatures of these two accused persons namely Raman Verma (A-3) and Ashutosh Pant (A-8) were not taken on the said day i.e 19.06.2006, as claimed by PW46 Vishwa Mittel Bhagi and same were taken on different dates, which creates doubt on the story of the prosecution.
272. This takes me to the report of the handwriting expert ExPW69/I. PW69 P.Venugopal deposed that he had arrived at the opinion and the same is Ex. PW 69/I. As per para 15 of the said opinion "The person who wrote the blue enclosed writings stamped and marked S 721 to S 905 and S 907 to CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 182 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 S 920 also wrote the red enclosed writing similarly stamped and marked Q 894".
273. As per the report of the expert, the person who wrote S 721 to S 905 and S 907 to S 920 also wrote the questioned document Q 894. The questioned document Q 894 at serial no. 54 is the purported signatures of Ms. Sunita Juneja (PW18) on the minutes of the meeting held on 09.08.1983 ExPW12/B ( the original of minutes of this meeting are lying in the file D-9 ExPW12/H from page no.1 to 3). It has come on record that specimen signatures from S721 to S905 and S907 to S 920 belong to accused Ashutosh Pant (A-8). As per the opinion of the expert EPW69/I, Q 894 was allegedly forged by accused Ashutosh Pant (A-8). PW18 Ms Savita Juneja deposed that her name and signatures are appearing against serial no. 54 on the minutes of meeting dated 09.8.1983 ExPW12/B. She has not denied that the said signatures do not belong to her. That being so, it would be difficult to hold that accused Ashutosh Pant has forged the signature of PW 18 Smt Savita Juneja.
274. In view of my aforesaid discussion, I am of the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 183 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 opinion that the prosecution has miserably failed to bring on record sufficient evidence against the accused Ashutosh Pant (A-8). A serious doubt has been created on the story of prosecution as set up against the accused Ashutosh Pant (A-8). It is true that on the basis of sole evidence of the expert, accused can be convicted under certain circumstances, but in the present case since there is a doubt about the taking over of the specimen signatures of accused Ashutosh Pant (A-8) and PW18 Savita Juneja has deposed contrary to the report of the Expert , therefore, only on the basis of the report of the Expert, accused Ashutosh Pant (A-8) cannot be held guilty for the alleged offences.
CONSIDERATION OF THE REST OF THE SUBMISSIONS MADE ON BEHALF OF THE ACCUSED PERSONS There is no Sanction under Section 197 Cr.P.C.
275. The learned counsels appearing for the accused persons, who are public servants, vehemently submitted that the sanction under Section 197 of the CrPC was mandatory to prosecute the accused persons CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 184 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 for the offences under the IPC. They would submit that the accused persons cannot be prosecuted for the offences under IPC without valid sanction under Section 197 of the CrPC. The learned counsels prayed that continuation of the criminal prosecution for the offences under the IPC would be nothing but a gross abuse of the process of law and would lead to serious miscarriage of justice.
Section 197 of the CrPC reads as under:
"197. Prosecution of Judges and public servants.--
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)--
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 185 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government"
occurring therein, the expression "Central Government" were substituted.
Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Penal Code, 1860.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted. (3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 186 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
276. Section 197 of the Cr PC provides that when any person who is or was a public servant, not removable from his office save by or with the sanction of the Central Government or State Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 187 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 duties, no Court shall take cognizance of such offence, except with the previous sanction of the appropriate Government.
277. Sub-section (1) of Section 197 of the CrPC shows that sanction for prosecution is required where any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty.
278. Ld counsels appearing for the accused persons have relied upon numbers of judgements as noted hereinabove.The law pertaining to the grant of sanction under Section 197 is no longer res integra. It is not denied that one of the essential requirements of Section 197 Cr. P.C. is that an accused should be alleged of having committed an offence while acting or purporting to act in discharge of his official duty. Almost all judicial precedents on Section 197(1) have turned on these words. But there must be a reasonable connection between the act and the discharge of official duty. The act must bear such CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 188 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
279. Ld counsels for the accused persons have mainly placed reliance on the decision on a case of A. Srinivasulu (supra), wherein in para 29 it was held:-
"29. There is no dispute about the fact that A-1 to A-4, being officers of a company coming within the description contained in the Twelfth item of Section 21 of the IPC, were 'public servants' within the definition of the said expression under Section 21 of the IPC. A-1 to A-4 were also public servants within the meaning of the expression under Section 2(c)(iii) of the PC Act. Therefore, there is a requirement of previous sanction both under Section 197(1) of the Code and under Section 19(1) of the PC Act, for prosecuting A-1 to A-4 for the offences punishable under the IPC and the PC Act."
280. There is no doubt about the observation of the Hon'ble Supreme Court, as made in the case of A.Srinivasulu Raju (Supra), but the observation of Hon'ble Supreme Court made in other cases, including the cases which are of larger Bench, also make it crystal clear that some offences cannot by their very nature, as present one, be regarded as having been committed by public CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 189 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 servants while acting or purported to act in discharge of their official duties.
281. In the case of Devinder Singh v. State of Punjab, (2016) 12 SCC 87, the principles emerging from the various decisions were summarised hereunder:
1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.
3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule.
4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.
5. In case sanction is necessary, it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 190 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of court at a later stage, finding to that effect is permissible and such a plea can be taken first time before the appellate court. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed.
7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.
8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits.
9. In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial.
282. In the case of K. Satwant Singh (supra) as relied upon by Ld PP for CBI , it was held that:-
" 16. Under Section 197 no Court shall take cognizance of an offence committed by a public servant who is removable from his office by the Governor-General-in-Council or a Provincial Government, save upon a sanction by one or the other as the case may be, when such offence is committed by him while acting or purporting to act in the discharge of his official duty. Henderson was charged with intentionally aiding the appellant in the commission of an offence punishable under Section 420 of the Indian Penal Code by falsely stating as a fact, in his reports that the appellants claims were true CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 191 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 and that statement had been made knowing all the while that the claims in question were false and fraudulent and that he had accordingly committed an offence under Section 420/109 of the Indian Penal Code. It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence punishable under Section 161 of the Indian Penal Code, is one of them and offence of cheating or abetment thereof is another. We have no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences (vide Amrik Singh case [(1955) 1 SCR 1302] ). The Act of cheating or abetment thereof has no reasonable connection with the discharge of official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty (vide Matajog Dobey case [(1955) 2 SCR 925] . It was urged, however, that in the present case the act of Henderson in certifying the appellant's claims as true was an official act because it was his duty either to certify or not to certify a claim as true and that if he falsely certified the claim as true he was acting or purporting to act in the discharge of his official duty. It is, however, to be remembered that Henderson was not prosecuted for any offence concerning his act of certification. He was prosecuted for abetting the appellant to cheat. We are firmly of the opinion that Henderson's offence was not one committed by him while acting or purporting to act in the discharge of his official duty. Such being the position the provisions of Section 197 of the Code are inapplicable even if Henderson be regarded as a public servant who was removable from his office by the Governor- General-in-Council or a Provincial Government."
283. In the case of Bhagwan Prasad Srivastava v. N.P. Mishra, (1970) 2 SCC 56, it was held that :-
"4. The object and purpose underlying this section is to CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 192 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. The larger interest of efficiency of State administration demands that public servants should be free to perform their official duty fearlessly and undeterred by apprehension of their possible prosecution at the instance of private parties to whom annoyance or injury may have been caused by their legitimate acts done in the discharge of their official duty. This section is designed to facilitate an effective and unhampered performance of their official duty by public servants by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction for their prosecution as a condition precedent to the cognizance of the cases against them by the courts. It is neither to be too narrowly construed nor too widely. Too narrow and pedantic construction may render it otiose for it is no part of an official duty -- and never can be -- to commit an offence. Incur view, it is not the "duty" which requires examination so much as the "act" because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. One must also guard against too wide a construction because in our Constitutional set up the idea of legal equality or of universal subjection of all citizens to one law administered by the ordinary courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles. Broadly speaking, with us no man, whatever his rank or condition is above the law and every official from the highest down to the lowest is under the same responsibility for every act done without legal justification as any other citizen. In construing Section 197, CrPC, therefore, a line has to be drawn between the narrow inner circle of strict official duties and acts outside the scope of official duties. According to the decision of this Court in Matajog Dubey v. H.C. Bhari [(1955) 2 SCR 925] cited by Shri Sarjoo Prasad on behalf of the appellant there must be a reasonable CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 193 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. In Amrik Singh v. State of Pepsu [(1955) 1 SCR 1302 at 1307] this Court said:
"It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution."
Recently in Baijnath Gupta v. State of M.P. [(1966) 1 SCR 210] this Court further explained that it is the quality of the act that is important and if it falls within the scope and range of the official duties of the public servant concerned the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted.
5. The principle embodied in this section seems to be well understood; the difficulty normally lies is in its application to the facts of a given case. The question whether a particular act is done by a public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case. In the present case the alleged offence consists of the use of defamatory and abusive words and of getting the complainant forcibly turned out of the operation theatre by the cook. There is nothing on the record to show that this was a part of the official duty of the appellant as Civil Surgeon or that it was so directly connected with the performance of his official duty that without so acting he could not have properly discharged it."
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 194 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
284. In the case of Shambhoo Nath Misra v. State of U.P., (1997) 5 SCC 326, it was held that :-
5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.
285. In the case of Rajib Ranjan v. R. Vijaykumar, (2015) 1 SCC 513 , Honble supreme Court held that:-
'18. ... even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted.' "
286. In the case of State of U.P. v. Paras Nath Singh, (2009) 6 SCC 372 , Honble Supreme Court by referring to numbers of other judgments in para 6 held that :-
".......That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B IPC sanction under Section 197 of the Code is a condition precedent for launching the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 195 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 prosecution is equally fallacious. This Court has stated the legal position in Shreekantiah Ramayya Munipalli v. State of Bombay ,AIR 1955 SC 287 and also in Amrik Singh v. State of Pepsu, [AIR 1955 SC 309] that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad v. State of Bihar [(1972) 3 SCC 89 :
'66. ... As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409 of the Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar.'
22. Above views are reiterated in State of Kerala v. V. Padmanabhan Nair [(1999) 5 SCC 690 : 1999 SCC (Cri) 1031] . Both Amrik Singh [AIR 1955 SC 309] and S.R. Munipalli [AIR 1955 SC 287 : (1955) 1 SCR 1177] were noted in that case. Sections 467, 468 and 471 IPC relate to forgery of valuable security, will, etc;
forgery for the purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar........"
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 196 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
287. The above discussion will now require this Court to consider the question as to whether the acts giving rise to the alleged offences had been committed by the accused persons in the actual or purported discharge of his official duties. In a series of pronouncements commencing with K. Satwant Singh (supra) it has been consistently held that it can be no part of the duty of a public servant or acting in the discharge of his official duties to commit any of the offences covered by Sections 120B,406, 409, 420, etc. under Indian Penal Code and the official status of the public servant can, at best, only provide an opportunity for commission of the offences. Therefore, no sanction for prosecution of the public servant for such offences would be required under Section 197 of the Code.
288. Now adverting to the case in hand, the allegations against the accused persons, who were public servants, are that they entered into criminal conspiracy with an intention to cheat the office of RCS and DDA and thereby created false and fabricated records. The society which was declared defunct in the year 1989, was revived CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 197 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 after a gap of 13 years in the year 2003 on the basis of false and forged documents submitted to the office of RCS on behalf of the society. It is not the case that the society was continuously doing and discharging its business from the date of its formation; there was no communication during the period between 1989 and 2003. On the face of it ,one may argue that the acts of the accused persons were committed while acting or purporting to act in discharge of his official duty but in reality it was not so. The present offences committed by the accused persons can not be treated as connected with discharge of their official duties. Therefore there is no requirement of sanction under section 197 Cr P.C.
289. One of the arguments advanced on behalf of the accused Narayan Diwakar (A-1) was that it was necessary for the CBI to obtain the sanction under section 19 of P C Act to prosecute the accused for the offences under the said act as this is a procedural law and the amendments made in section 19 would be effective retrospectively.
290. I am afraid that such an argument has no place in the eyes of law. In the present case it is not denied that at CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 198 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 the time when the cognizance of offences was taken at that time accused Narayan Diwakar (A-1) was no longer in service and he had already retired. That being so in terms of section 19 of prevention of corruption act 1988 (prior to its amendment), no sanction under section 19 was required to prosecute a retired public servant.
291. In a recent case of CBI v. B.A. Srinivasan, (2020) 2 SCC 153, it was held by Honble Supreme Court that:-"
"13. Consequently, there was no occasion or reason to entertain any application seeking discharge in respect of offences punishable under the Act, on the ground of absence of any sanction under Section 19 of the Act. The High Court was also not justified in observing "that the protection available to a public servant while in service, should also be available after his retirement". That statement is completely inconsistent with the law laid down by this Court in connection with requirement of sanction under Section 19 of the Act."
292. Next argument made on behalf of the accused persons was that nothing has been brought on record by the prosecution which could indicate that accused persons had ever received any pecuniary gain or any other CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 199 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 benefits.
293. This will also not extend any benefit to accused persons for the simple reason that hardly any direct evidence is available in case of conspiracy. A criminal conspiracy is generally hatched in secrecy, and it is difficult, if not impossible, to obtain direct evidence. The essential ingredients of criminal conspiracy are:
1. an agreement between two or more persons.
2. agreement must relate to doing or causing to be done either
(a) an illegal act; or
(b) an act which is not illegal in itself but is done by illegal means.
294. To prove the charge of criminal conspiracy the prosecution is required to establish that two or more persons had agreed to do or caused to be done, an illegal act or an act which is not legal, by illegal means. It is immaterial whether the illegal act is the ultimate object of such crime or is merely incidental to that object. To attract the applicability of Section 120-B IPC, it has to be proved that all the accused had the intention and they had agreed to commit the crime. There is no doubt that conspiracy is hatched in private and in secrecy for which direct evidence would rarely be available. It is also not CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 200 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 necessary that each member of a conspiracy must know all the details of the conspiracy.
295. Hon'ble Supreme Court in Yash Pal Mittal v. State of Punjab [(1977) 4 SCC 540 held:
"9. The offence of criminal conspiracy under Section 120-A is a distinct offence introduced for the first time in 1913 in Chapter V-A of the Penal Code. 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- conspirators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 201 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 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. The significance of criminal conspiracy under Section 120-A is brought out pithily by this Court in E.G. Barsay v. State of Bombay [AIR 1961 SC 1762 : thus:
'The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Penal Code, 1860, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable.' We are in respectful agreement with the above observations with regard to the offence of criminal conspiracy."
296. In another case Saju v. State of Kerala, (2001) 1 SCC 378 :, it was held:-
8. In a criminal case the onus lies on the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 202 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 prosecution to prove affirmatively that the accused was directly and personally connected with the acts or omissions attributable to the crime committed by him. It is a settled position of law that act or action of one of the accused cannot be used as evidence against another. However, an exception has been carved out under Section 10 of the Evidence Act in the case of conspiracy. To attract the applicability of Section 10 of the Evidence Act, the court must have reasonable grounds to believe that two or more persons had conspired together for committing an offence. It is only then that the evidence of action or statement made by one of the accused could be used as evidence against the other. This Court in Kehar Singh v. State (Delhi Admn.) [(1988) 3 SCC 609 has held : (SCC pp. 649-51, para 45):
"Section 120-A provides for the definition of criminal conspiracy and it speaks of that when two or more persons agree to do or cause to be done an act which is an illegal act and Section 120-B provides for the punishment for a criminal conspiracy and it is interesting to note that in order to prove a conspiracy it has always been felt that it was not easy to get direct evidence. It appears that considering this experience about the proof of conspiracy that Section 10 of the Indian Evidence Act was enacted. Section 10 reads:
'10. Things said or done by conspirator in reference to common design.--Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 203 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.' This section mainly could be divided into two : the first part talks of where there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, and it is only when this condition precedent is satisfied that the subsequent part of the section comes into operation and it is material to note that this part of the section talks of reasonable grounds to believe that two or more persons have conspired together and this evidently has reference to Section 120-A where it is provided 'when two or more persons agree to do, or cause to be done'. This further has been safeguarded by providing a proviso that no agreement except an agreement to commit an offence shall amount to criminal conspiracy. It will be therefore necessary that a prima facie case of conspiracy has to be established for application of Section 10. The second part of section talks of anything said, done or written by any one of such persons in reference to the common intention after the time when such intention was first entertained by any one of them is relevant fact against each of the persons believed to be so conspiring as well for the purpose for proving the existence of the conspiracy as for the purpose of showing that any such person CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 204 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 was a party to it. It is clear that this second part permits the use of evidence which otherwise could not be used against the accused person. It is well settled that act or action of one of the accused could not be used as evidence against the other. But an exception has been carved out in Section 10 in cases of conspiracy. The second part operates only when the first part of the section is clearly established i.e. there must be reasonable ground to believe that two or more persons have conspired together in the light of the language of Section 120-A. It is only then the evidence of action or statements made by one of the accused could be used as evidence against the other. In Sardar Sardul Singh Caveeshar v. State of Maharashtra [AIR 1965 SC 682 : Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra] Subba Rao, J. (as he then was) analysed the provision of Section 10 and made the following observations : (SCR pp.
389-91):
'This section, as the opening words indicate, will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co-conspirators. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 205 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them. The expression "in reference to their common intention" is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of"
in the English law; with the result, anything said, done or written by a co- conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Another important limitation implicit in the language is indicated by the expressed scope of its relevancy. Anything so said, done or written is a relevant fact only "as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it". It can only be used for the purpose of proving the existence of the conspiracy or that the other person was a party to it. It cannot be used in favour of the other party or for the purpose of showing that CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 206 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 such a person was not a party to the conspiracy. In short, the section can be analysed as follows : (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; (5) it can only be used against a co-conspirator and not in his favour.' "
297. It was further held : (SCC pp. 734-35, paras 278-
80):
"278. From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co-conspirator. Once such prima facie CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 207 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it. It is true that the observations of Subba Rao, J., in Sardul Singh Caveeshar v. State of Maharashtra [AIR 1965 SC 682 :sub nom Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra] lend support to the contention that the admissibility of evidence as between co-conspirators would be (sic more) liberal than in English law. The learned Judge said : (SCR p.
390) 'The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them. The expression "in reference to their common intention" is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in English law;
with the result, anything said, done or written by a co- conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it.'
279. But, with respect, the above observations that the words of Section 10 have been designed used to give a wider scope than the concept of conspiracy in English law, may not be accurate. This particular aspect of the law has been considered by the Privy Council in Mirza Akbar v. King Emperor [AIR 1940 PC 176 :
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 208 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 at p. 180, where Lord Wright said that there is no difference in principle in Indian law in view of Section 10 of the Evidence Act.
280. The decision of the Privy Council in Mirza Akbar case [AIR 1940 PC 176 : has been referred to with approval in Sardul Singh Caveeshar v. State of Bombay [AIR 1957 SC 747, 760 : where Jagannadhadas, J., said : (SCR p. 193) 'The limits of the admissibility of evidence in conspiracy cases under Section 10 of the Evidence Act have been authoritatively laid down by the Privy Council in Mirza Akbar v. King Emperor [AIR 1940 PC 176 :] . In that case, their Lordships of the Privy Council held that Section 10 of the Evidence Act must be construed in accordance with the principle that the thing done, written or spoken, was something done in carrying out the conspiracy and was receivable as a step in the proof of the conspiracy. They notice that evidence receivable under Section 10 of the Evidence Act of "anything said, done, or written, by any one of such persons"
(i.e. conspirators) must be "in reference to their common intention". But their Lordships held that in the context (notwithstanding the amplitude of the above phrase) the words therein are not capable of being widely construed having regard to the well- known principle above enunciated.' "
9. In Suresh Chandra Bahri v. State of Bihar [1995 Supp (1) SCC 80] this Court reiterated that the essential ingredient of criminal conspiracy is the agreement to commit an offence. After referring to CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 209 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 the judgments in Noor Mohd. Mohd. Yusuf Momin v. State of Maharashtra [(1970) 1 SCC 696 : and V.C. Shukla v. State (Delhi Admn.) [(1980) 2 SCC 665 :] it was held in S.C. Bahri case [1995 Supp (1) SCC 80 : as under : (SCC p. 134, para 96).
"[A] cursory look to the provisions contained in Section 120-A reveals that a criminal conspiracy envisages an agreement between two or more persons to commit an illegal act or an act which by itself may not be illegal but the same is done or executed by illegal means. Thus 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 fact-situation criminal conspiracy is established by proving such an agreement. In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120- B read with the proviso to sub-section (2) of Section 120-A IPC, 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 fulfilment 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 CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 210 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 established the act would fall within the trapping of the provisions contained in Section 120-B since from its very nature a conspiracy must be conceived and hatched in complete secrecy, because otherwise the whole purpose may be frustrated and it is common experience and goes without saying that only in very rare cases one may come across direct evidence of a criminal conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn."
298. In view of the above mentioned principles as laid down by Hon'ble Supreme Court, this court is satisfied that accused Narayan Diwakar(A-1), Raman Verma(A-3) and Sanjeev Bharti(A-4) have also conspired to commit the offences in question. There is sufficient evidence proving that these said accused persons were party to the conspiracy and in furtherance of said criminal conspiracy the society was revived on the basis of forged and false documents and proceedings.
299. It is true that it is the obligation of the prosecution to satisfy that accused persons had taken any monetary or pecuniary advantage by abusing their CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 211 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 position. In the present case accused persons have been charged for the offence of criminal conspiracy also. In case of criminal conspiracy direct evidence of any pecuniary or monetary benefits , is hardly available and the same is to be inferred from the circumstances. Pecuniary or monetary advantage may come in innumerable forms making it difficult for the prosecution to establish it but it does not mean that accused persons have not received any such benefits.
300. One of the arguments of Ld. Counsel for the accused Raman Verma (A-3) and Sanjeev Bharti(A-4) is that the authorities who had accorded the sanction under section 19 of the act had never worked in the RCA office therefore they were not competent to remove above mentioned accused persons as they had worked in the office of RCS during the relevant time. That being so, the sanctions granted by PW 15 A.Majumdar and PW59 Vijay Kumar have no value in the eyes of law and solely on this basis these accused persons are entitled for acquittal.
301. Since the requirement of obtaining sanction is contained in Section 19(1) of the PC Act, it would be CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 212 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 proper to reproduce the same. For our purposes, reproduction of sub-section (1) of Section 19 of the PC Act shall suffice which I reproduce herein below:
"19. Previous sanction necessary for prosecution.--
(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, save as otherwise provided in the Lokpal and Lokayuktas Act, 2013--
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office."
302. As is clear from the plain language of the said section, the court is precluded from taking "cognizance"
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 213 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 of an offence under certain sections mentioned in this provision if the prosecution is against the public servant, unless previous sanction of the Government (Central or State, as the case may be) has been obtained. What is relevant for our purposes is that this section bars taking cognizance of an offence.
303. The public policy behind providing immunity from prosecution without the sanction of the State is to insulate the public servant against harassment and malicious prosecution. This protection is only to ensure that a public servant serves the State with courage, confidence, and conviction. Statutory provisions requiring sanction before prosecution either under Section 19 of the PC Act also intend to serve the very same purpose of protecting a public servant. These protections are not available to other citizens because of the inherent vulnerabilities of a public servant and the need to protect them. However, the said protection is neither a shield against dereliction of duty nor an absolute immunity against corrupt practices. The limited immunity or bar is only subject to a sanction by the appointing authority.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 214 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
304. In the case of L. Narayana Swamy v. State of Karnataka, (2016) 9 SCC 598, as relied by Ld PP for CBI, one of the questions referred to was "Whether a public servant who is not on the same post and is transferred (whether by way of promotion or otherwise to another post) loses the protection under Section 19(1) of the PC Act, though he continues to be a public servant, albeit on a different post"? In that case Hon'ble Supreme Court held:-
"21. It clearly follows from the reading of the judgments in Abhay Singh Chautala v. CBI, (2011) 7 SCC 141 and Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 that if the public servant had abused entirely different office or offices than the one which he was holding on the date when cognizance was taken, there was no necessity of sanction under Section 19 of the PC Act. It is also made clear that where the public servant had abused the office which he held in the check-up period, but had ceased to hold "that office" or was holding a different office, then sanction would not be necessary. Likewise, where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognizance, there will be no necessity to take the sanction. However, one discerning factor which is to be noted is that in both these cases the accused persons were public servants in the capacity of Member of Legislative Assembly by virtue of political office. They were not public servants as government employees. However, a detailed discussion contained in these judgments would indicate that the principle laid down therein would encompass and cover the cases of all public servants, including government employees who may otherwise be having constitutional protection under the provisions of Articles 309 and 311 of the Constitution."
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 215 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
305. In the case of K. Veeraswami v. Union of India, (1991) 3 SCC 655 , it was held:-
49. It is said that Section 6 envisages that the authority competent to remove a public servant from the office should be vertically superior in the hierarchy in which the office exists. Section 6 applies only in cases where there is a vertical hierarchy of public offices and the public servants against whom sanction is sought from the sanctioning authority. Where the office held by the public servant is not a part of vertical hierarchy in which there is an authority above the public servant, then, Section 6 can have no application. We have been referred to the observations of Desai, J., in R.S. Nayak v. A.R. Antulay [(1984) 2 SCC 183 "That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 216 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 servant against whom sanction is sought from the office."
50. With the utmost respect, we are unable to agree with the above observations. It seems to us that these observations were not intended to lay down the law that the authority competent to grant sanction for prosecution of a public servant should be vertically superior in the hierarchy in which the office of the public servant exists. That was not the issue in that case. The observations therefore, are not meant to be and ought not to be regarded as laying down the law. It has been said almost too frequently to require repetition that judgments are not to be read as statutes. In our opinion, it is not necessary that the authority competent to give sanction for prosecution or the authority competent to remove the public servant should be vertically superior in the hierarchy in which the office of the public servant exists. There is no such requirement under Section 6. The power to give sanction for prosecution can be conferred on any authority. Such authority may be of the department in which the public servant is working or an outside authority. All that is required is that the authority must be in a position to appreciate the material collected against the public servant to judge whether the prosecution contemplated is frivolous or speculative. Under our enactment the CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 217 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 power has been conferred on the authority competent to remove the public servant. Under the British Prevention of Corruption Act, 1906 the power to give consent for prosecution for an offence under that Act has been conferred upon the Attorney General or Solicitor General.
306. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. Since the validity of "sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 218 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under
an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
307. Nothing has been brought on record indicating that sanctioning authorities had not considered the evidence and the material placed before it before giving the sanction for prosecuting the accused Raman Verma and Sanjeev Bharti.
308. PW15 A.Majumdar who had accorded the sanction in the present case to prosecute the accused Raman Verma(A3), deposed that on receipt of report and calendar of events , both oral as well as documentary, from the CBI, he perused the same and accorded sanction CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 219 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 dated 28-9-2006 Ex PW15/A. He further deposed that he was competent to remove the accused Raman Verma from service as per conduct rules. Although PW15 was cross examined on behalf of the accused Raman Verma at length but even during his cross examination, nothing could be elicited to disbelieve the testimony of PW15. Even during his cross examination , he stated that he had accorded the sanction on the basis of a report as received from CBI. It does not make any difference if PW15 had not sought any legal opinion or there was no other complaint against the accused Raman Verma or he did not make any enquiry or it was not specifically mentioned in the sanction order about any pecuniary loss caused to the government etc.
309. PW59 Vijay Kumar who had accorded sanction against the accused Sanjeev Bharti (A4) deposed that CBI had sent its report through the Directorate of Vigilance seeking sanction for prosecution in respect of the accused Sanjeev Bharti. He further deposed that the said report contained brief facts of the case, gist of statements of the witnesses and evidence along with other documents. After going through the said report and documents very CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 220 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 carefully and after applying his mind, he granted the sanction for prosecution of accused Sanjay Bharti. He proved the sanction order as ExPW59/A. PW59 was also cross-examined on behalf of the accused Sanjeev Bharti but even during his cross-examination his testimony has gone unchanged on material points. nothing could be brought on record by the accused on the basis of which the testimony of this witness can be rejected.
310. Moreover, in the present case, in view of the judgment of Hon'ble Supreme Court passed in the case of L. Narayan Swami( Supra), even if there is no sanction to prosecute the accused persons , it would not affect the case of prosecution as accused persons had abused the office and position while working in the office of RCS during the relevant time but when the cognizance of the offence was taken, they had ceased to hold that office and were holding different offices.
311. During the statement recorded u/s 313 CrPC, while replying to one of the questions, accused Narayan Diwakar (A-1) stated that in the present case, liquidation proceedings were never finalized and in terms of Rule 105 CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 221 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 DCS Rules, 1973, the winding-up proceedings stood terminated automatically after three years. He further stated that as per Rule 105 of the Delhi Cooperative Rules 1973, after passing of winding up order, the Registrar is bound to cancel the winding-up orders by passing an order. In this regard, he has relied upon the judgment passed in a case of Vikas CGHS (Supra).
312. It is true that as per the provision of rule 105 of the DCS Rules 1973, the winding up proceedings of the society shall be closed within one year from the date of the order of winding up, unless the period is extended by the Registrar. The proviso attached to the Rule 105 (1) says that after expiry of 3 years from the date of the order of winding up of the society, deemed that the recommendations proceedings have been terminated subject to certain conditions.
313. The aforesaid provision of law would also not come to the rescue of the accused Narayan Diwakar (A-1). The winding up order dated 14.02.2003 is on the record. A careful examination of the same would reveal that the said order was passed by considering the past CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 222 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 history and proceedings pertaining to the present society and the reasons for which the society was wound up. It is not that the order dated 14.02.2003 was passed only under Rule 105 of DCS Rules, 1973. rather , it was based on the submissions and requests made on behalf of the society. That being so, the accused Narayan Diwakar (A-1) cannot be allowed to take any benefit from the decision of case passed in the Vikas CGHS (Supra).
314. One of the arguments made on behalf of accused Raman Verma (A-3) was that he had simply placed the file before the then Registrar (A-1) and he had not recommended the revival of the society. The aforesaid submission is contrary to the record and is liable to be rejected. The request of the society dated 14.01.2003 was processed initially vide note dated 20.01.2003 by the accused Raman Verma (A-3). In the said note dated 20.01.2003, the proviso of section 63(3) of the DCS Act 1972 were referred to whereby Registrar is empowered to cancel the order of the winding up of society at any time in any case, where in his opinion, the society should continue to exist. Subsequent notings dated 06.02.2003 ( ExPW53/D) and 10.02.2003 (ExPW53/E) were recorded CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 223 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 by accused Raman Verma (A-3). The noting dated 11.02.2003 (ExPW53/F), recites in the beginning that "
the issue on the file relates to the revival of the society u/s 63 (3) of DCS Act 1973. In this connection, this office note on page 12/N may please be referred".
315. On page 16/N, the noting dated 11.02.2003 inter alia incorporates " the secretary of the society has also filed un-audited accounts of the society which shows that the society enrolled following 27 members on 25.07.1984 as per copy of the MC resolution placed at page 175- 176/C. The copy of each of the application form in respect of newly enrolled members and also proof of receipts of share money has also been furnished which may be seen at page 121/C to 174/C. The same has been verified with reference to the original application and original receipts respectively.". Meaning thereby, the documents and records submitted on behalf of the society for revival of the society were duly verified with reference to the original records, though it was not so. If the note dated 11.02.2003 coupled with other notings is taken into consideration together, there would not be any difficulty in arriving at a conclusion that there was a CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 224 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 recommendation on behalf of the accused Raman Verma (A-3) for revival of the society, though not worded explicitly .
316. Moreover, even if, for the sake of argument it is presumed that there was no recommendation by the accused Raman Verma (A-3), in the capacity of dealing assistant for revival of the society still it was the duty of accused Raman Verma (A-3) to point out the forgery and the fact that false proceedings have been submitted. The notings, in this regard are silent. It was the first duty of accused Raman Verma (A-3) to verify the request and the record produced in the year 2003 on behalf of the society, which was found to be forged and false, with the original records of the society submitted at the time when the society was registered.
317. Here, I may mention that I have also gone through the judgments, as relied upon by the accused Raman Verma (A-3) and Sanjeev Bharti (A-4). There is no doubt about the preposition of law as laid down by Hon'ble courts in the said cases but in the given facts and circumstances and the background of the fact that CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 225 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 prosecution has been able to establish the case against them beyond reasonable doubt to the effect that they were party to the conspiracy in question, the aforesaid judgments would not extend any help to them.
DEFENCE EVIDENCE LED BY ACCUSED NARAYAN DIWAKAR (A-1), RAMAN VERMA (A-3) AND SANJEEV BHARTI (A-4)
318. This takes me to the Defence Evidence led on behalf of the accused persons. Accused Narayan Diwakar (A-1) has examined one Sh. Saroj Chandra Pradhan as DW3 in his defence. DW3 deposed that he was posted as a Principal, Delhi State Cooperative Training Centre and remained posted as a System Analyst in the office of RCS during the period from April, 2003 to March, 2008; his job was to look after hardware, software, networking of computer and website of the office of RCS; during the period from 2003-2004, Narayan Diwakar (A-1) was the Registrar. According to DW3, the status of every society including the list of members, management committee members, election status, audit etc. were to be updated CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 226 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 regularly and for this a wide publicity relating to the launch of website of the RCS office was also done ; a helpline number was also created; computerization work was completed and the website of the RCS office was launched. He has also referred to a letter of appreciation given by the then Chief Secretary to Narayan Diwakar (A-1) in the capacity of RCS. DW3 has been cross examined by the Ld. PP for the CBI.
319. Even if the data of the CGHS society pertaining to the list of members, managing committee members, election status was updated regularly on the website of the RCS office, it would not make any difference and would not absolve accused Narayan Diwakar (A-1) from criminal liability. In the present case, allegations against accused Narayan Diwakar (A-1) are that being the Registrar of the RCS office, without verifying the record, he passed an order dated 14.02.2003, whereby, the society which had gone into liquidation has revived. The request made on behalf of the society and the alleged proceedings conducted by the accused persons were forged and fabricated. As discussed, during fixing of the responsibility of accused Narayan Diwakar (A-1), he was CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 227 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 not supposed to act upon the basis of forged and fabricated documents.
320. Accused Sanjeev Bharti (A-4) and Raman Verma (A-3) have examined one Sh. Sandeep as DW1 and Sh Dharmbir Gusain as DW2. DW1 Sandeep has produced the record/file ExDW1/ A pertaining to the sanction accorded in respect of accused Raman Verma (A-3). DW2 Dharmbir Gusain has produced the record pertaining to the sanction accorded in respect of Sanjeev Bharti (A-4).
321. Although, the aforesaid record was summoned by accused Raman Verma (A-3) and Sanjeev Bharti (A-4) but relevancy of the said record remains unexplained. It appears that the aforesaid record had been summoned to show that while granting the sanction to prosecute aforesaid accused persons, sanctioning authority had not applied its mind. But in this regard, nothing has been pointed out from the said record, so produced, on behalf of the accused Raman Verma (A-3) and Sanjeev Bharti (A-4) to establish their claim that sanctions were granted to prosecute them in a mechanical manner and without CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 228 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 applying mind. The testimony of DW1 Sandeep and DW2 Dharambir Gusain would not be of any help to accused Raman Verma (A-3) and Sanjeev Bharti (A-4).
CONCLUSION
322. The accused persons namely Narayan Diwakar(A-1), Raman Verma (A-3) and Sanjeev Bharti (A-4) were charged by the Ld. Predecessor of this court for the offences under section 120 B r/w 420/511 IPC read with section 419/468/471 IPC and section 15 r/w 13(2) read with 13( 1) (d) of PC Act,1988 and also for the substantive offences u/s 13 (1) (d) punishable u/s 13(2) r/w section 15 of the PC Act, 1988.
323. As far as the charge under section 120 B IPC is concerned, this court has already decided, as noted in para 298 of this judgment, that the above accused persons have conspired together to commit the offence in question and there is sufficient evidence proving that they were party to the conspiracy.
324. In addition to that these accused persons are CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 229 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 facing the charges for the substantive offences u/s 15 read with section 13(1)(d) of PC Act, 1988, also.
325. Prior to amendment of section 13 of PC Act, 1988, a public servant is said to commit the offence of criminal misconduct if he (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage or (ii) or by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage or
(iii) while holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest.
326. A perusal of the above provision makes it clear that if the elements of any of the above mentioned three clauses are met, the same would be sufficient to constitute an offence of criminal misconduct under section 13(1) (d). Undoubtedly, all the above three clauses are independent, alternative and disjunctive.
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 230 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019
327. In the present case, these accused persons have been charged for attempt u/s 15 of the PC Act,1988 also. The case of the prosecution against them is of attempt and not of the main offence.
328. Further, while deciding the role of the accused persons namely Narayan Diwakar(A-1), Raman Verma (A-3) and Sanjeev Bharti(A-4) , this court has already reached at a conclusion that they all in furtherance of the above mentioned criminal conspiracy and with ulterior motive, acted on the basis of forged and false communications/letters/reports dated 25.12.2002 ExPW40/D, 14.1.2003 Ex. PW65/I-1 & 2 and 27.3.2003 Ex.PW70/A4/X1, and the proceedings dated 13.11.2002 ExPW40/A15, 15.12.2002 ExPW2/B and 23.3.2003 ExPW1/C and allowed accused Satish Gupta( A-6, already stand convicted) to represent the society, who was not even a member of the society and consequently, the society came to be revived. The above actions of these accused persons squarely come under the ambit of CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 231 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 section 13(1) (d) Prevention of Corruption Act, 1988 r/w section 15 Prevention of Corruption Act, 1988.
Decision
329. In view of my aforesaid discussions, accused persons namely Narayan Diwakar(A-1), Raman Verma (A-3) and Sanjeev Bharti(A-4), are convicted as under:
ii. Accused Narayan Diwakar (A-1) is convicted for the offences u/s 120 B r/w 420/511 r/w 419/468/471 IPC and Sec. 15 r/w 13(2) r/w 13 (1) (d) of PC Act,1988 and also for substantive offences u/s 13(1)(d) punishable u/s13 (2) r/w sec. 15 of Prevention of Corruption Act 1988 iii. Accused Raman Verma (A-3) is convicted for the offences u/s 120 B r/w 420/511 r/w 419/468/471 IPC and Sec. 15 r/w 13(2) r/w 13 (1) (d) of PC Act,1988 and also for substantive offences u/s 13(1)(d) punishable u/s13 (2) r/w sec. 15 of Prevention of Corruption Act 1988 iv. Accused Sanjeev Bharti (A-4) is convicted for the offences under section 120 B r/w 420/511 r/w 419/468/471 IPC and Sec. 15 r/w 13(2) r/w 13 (1) (d) CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 232 of 233 ) CBI No. 121/19 CNR No.DLCT110005402019 of PC Act,1988 and also for substantive offences u/s 13(1)(d) punishable u/s13 (2) r/w sec. 15 of Prevention of Corruption Act 1988.
v. Accused Ashutosh Pant (A-8) is acquitted for the offences under section 120 B r/w 420/511 r/w 419/468/471 IPC and Sec. 15 r/w 13(2) r/w 13 (1) (d) of PC Act,1988 and also substantive offences u/s 420 r/w 511 IPC, 468, 471 IPC.
330. All the above convict persons namely Narayan Diwakar (A-1), Raman Verma (A-3) and Sanjeev Bharti(A-4), shall be heard separately on the point of sentence.
331. Copy of this Judgment is being provided free of cost to each of the Convict persons.
Digitally signed by RAJESH RAJESH KUMAR GOEL
KUMAR GOEL Date: 2023.09.14
02:35:39 +0530
(Rajesh Kumar Goel)
Special Judge (PC Act) (CBI) 16
Rouse Avenue District Courts
New Delhi/12.09.2023
Announced in the Open Court
today : 12.9.2023
CBI Vs. Narayan Diwakar & Ors.
(Anchal CGHS) Date of Judgment 12.09.2023 (Page 233 of 233 )
CBI No. 121/19
CNR No.DLCT110005402019