Delhi District Court
Cbi vs D. K. Sinha on 31 January, 2012
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
(PC ACT), CBIIII, ROHINI COURTS: DELHI.
CBI No. 28/11
RC No. 4(E)/2006/EOUIV/CBI/N.DELHI
CBI
Versus
1.D. K. Sinha S/o Shashi Bhushan Prasad R/o Flat No. 265, Pocket - II, Sector - 23, Rohini, Delhi - 110095.
2. Narayan Diwakar S/o Chhati Lal R/o G30, Masjid Moth, Greater Kailash - II, New Delhi.
3. Niranjan Singh S/o Sh. Babu Lal R/o 309, Karkardooma, Delhi Government Flats, Delhi - 110092.
4. P.K. Thirwani S/o Late Sh. Moti Lal Thirwani CBI Vs. D. K. Sinha & others Page 1/16 (Kala Sangam CGHS) R/o 348 - E, Pocket - II, Mayur Vihar, Phase - I, Delhi.
5. Raman Kumar Verma S/o Sh. Jagannath R/o F - 444, Karampura, New Delhi - 110015.
(Kala Sangam CGHS) ORDER ON CHARGE:
1. The case of the CBI, in brief, is that Kala Sangam Cooperative Group Housing Society (CGHS) was registered on 20/01/1984 vide registration no. 1370 (H) with 75 members having its office at B12, GT Karnal Road, Delhi. Since the society did not comply with provisions of the Delhi C ooperative Societies Act (DCS Act) such as holding of General Body Meeting for election, conducting audit since its inception etc., it was wound up by Sh. Satish Mathur, the then Deputy Registrar vide order dated 31/08/1990.
2. In February, 2001, accused D. K. Sinha claiming himself to be Secretary of the Society moved an application before accused Narayan CBI Vs. D. K. Sinha & others Page 2/16 (Kala Sangam CGHS) Diwakar, the then RCS, for cancellation of winding up order dated 31/08/1990. Accused Niranjan Singh, the then UDC in the Office of RCS, with the help of forged and fabricated documents attached with said application in the form of proceedings registers containing fabricated proceeding notes since 13/03/1985 till the year 2001, General Body Meeting Proceedings, membership lists and application forms, fabricated balance sheets, receipts and payment details, list of resigned members and enrollment of new members, put up a favourable note before accused Narayan Diwakar to revive the society. Accused Narayan Diwakar, on the basis of note put up by accused Niranjan Singh, having full knowledge that the Society was in process of liquidation since the year 1990, passed revival order on 25/06/2001 without holding an inquiry to this effect. He passed the revival order with immediate effect despite knowing the fact of nonconduction of election and audit of the Society besides irregularities in maintenance of accounts relating to documents of the society.
3. After revival of the Society, accused D. K. Sinha submitted a list of 136 members of the Society before accused Narayan Diwakar for his approval as well as for onward transmission to DDA for allotment of land. During the course of investigation it revealed that most of the CBI Vs. D. K. Sinha & others Page 3/16 (Kala Sangam CGHS) members of the society were shown to have become members of the society since 1986 though they became members in the year, 200001.
Accused Niranjan Singh made a detailed note on 23/07/2001 about approval of final list of members for allotment of land by giving information of enrollment of new members and resignation of old members prior to 30/06/1986 and post 01/07/1986. The said information was given by him on the basis of false, forged and fabricated documents of the society. He did so despite knowing the fact that he was supposed to make a verification in this regard before putting favourable note to RCS. Finally, the list of 136 members was approved by accused Narayan Diwakar on 21/08/2001 which list was sent to DDA for allotment of land vide letter dated 25/10/2001 under signature of Late Sh. M. R. Lekhwal, the then AR (W), through AR (Policy). The DDA issued letter dated 14/10/2003 to the President/Secretary of the Society to furnish options for allotment of land which fact gives confirmation that DDA had already received the list of 136 members from RCS Office duly approved by accused Narayan Diwakar.
4. During investigation, it came to light that accused Narayan Diwakar, vide revival order dated 25/06/2001, had ordered to hold election of the Management Committee. He appointed accused Raman CBI Vs. D. K. Sinha & others Page 4/16 (Kala Sangam CGHS) Kumar Verma, the then Grade - III Officer, as an Election Officer to hold election of the Society. Accused Raman Kumar Verma without convening General Body Meeting submitted a note on 28/10/2001 that General Body Meeting of the Society was conducted. It further came to light during investigation that revival order had commanded the Society to complete its audit within two months. On 26/06/2001, J. S. Sharma, the then AR, appointed accused P.K. Thirwani as Auditor of the Society who carried out audit of the Society for the period 19842001 in one go without visiting office of the Society. Accused P. K. Thirwani even did not try to go through the documents such as cash book, ledger, registration files, membership registers, posting registers, share allotment registers, receipt books, vouchers, files etc while conducting audit of the Society. The documents were seized and scrutinized and it confirmed that audit reports of accused P K Thirwani were bogus. The statements of witnesses namely Sunil Kapil, Rakesh Kamal Sharma and B. K. Gupta as well as Report of GEQD confirmed that no meeting of the Society took place after 06/03/1985 and proceedings were fabricated. The witnesses Smt. Poonam Sanghal, S. D. Sharma, Raj Dharu, Ravi Kishore Sharma, S. K. Sinha, S. C. Shiva, R. N. Sanghal, Smt. Anuja Jain, Smt. Rekha Bhatnagar, Smt. Jaishree Puri, J. N. Saluja, A. S. Dhaman, Sujit Sinha and A. K. Chugh brought it over the record that they joined the CBI Vs. D. K. Sinha & others Page 5/16 (Kala Sangam CGHS) Society in the year, 200001 and not in 1986. Accused D.K. Sinha fabricated proceedings register, general body meeting as shown to have been held after 06/03/1985 till application for revival was moved. Sh. Adarsh Kumar Gupta, Advocate, did not attend the proceedings before the Registrar on 30/05/2001 and 14/06/2001. Poonam Sanghal never attended the proceedings before the Registrar. They were shown to be present in the proceedings before accused Narayan Diwakar which fact falls heavily on his conduct and goes to establish his complicity in the crime.
5. Accused Niranjan Singh submitted note dated 29/05/2001 for revival of the Society on the basis of forged and fabricated documents without verifying contents of the documents placed before him. Accused Narayan Diwakar passed revival order of the Society with immediate effect. Thereafter, accused D. K. Sinha submitted a list of 136 members for transmission to DDA under forged signatures of Poonam Sanghal. Accused Niranjan Singh put a detailed note on 23/07/2001 detailing false and fabricated facts confirming resignations of members and enrollment of new members; proceeding notes showing approval of resignation and enrollment of new members; completion of election and audit till 31/03/2001. Accused Narayan Diwakar made approval of the list on CBI Vs. D. K. Sinha & others Page 6/16 (Kala Sangam CGHS) 21/08/2001 which was transmitted to DDA on 25/10/2001. Therefore, it has become crystal clear that accused D. K. Sinha, claiming himself to be the Secretary of the Society, in connivance with accused Narayan Diwakar and other officials of RCS, on the basis of false, forged and fabricated documents revived the Society in the year, 2001 and got approved list of 136 members which was forwarded to DDA for allotment of land. After completing investigation, chargesheet was filed in the Court against the accused persons for committing various offences under Indian Penal Code 1860 (IPC) and Prevention of Corruption Act 1988 (PC Act).
6. I have heard Sh. S. K. Bhatnagar, Ld. Counsel for accused nos 1, 4 & 5. Ld. Counsel contended that name of accused P. K. Thirwani is not mentioned in the FIR dated 05/01/2006 though the FIR was registered after preliminary inquiry. According to Ld. Counsel, there is no evidence on record to connect the accused P. K. Thirwani with the alleged offences as the audit was done by accused P. K. Thirwani after the revival of the Society. In nutshell, the contention of Ld. Counsel is that accused P. K. Thirwani has no role to play in the revival of the Society and, as such, he is liable to be discharged in this case.
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7. As regards accused R. K. Verma, Ld. Counsel contended that as per Section 31 of the DCS Act, election for the Managing Committee of a Society can be conducted by a person not below the rank of Gazetted Officer. Accused R. K. Verma was merely a LDC and, as such, he had no power to conduct the election. Ld. Counsel further contended that even otherwise all the members of the Managing Committee were elected unopposed and accused R. K. Verma had no role to play in the election of the Managing Committee of the Society. Lastly, Ld. Counsel contended that accused R. K. Verma is not a public servant and, therefore, he cannot be prosecuted for offences under P. C. Act.
8. As regards accused D. K. Sinha, Ld. Counsel contended that ingredients of Section 13 (1) (d)/13 (2) of the P. C. Act are not attracted to the present case and an accused cannot be convicted merely on presumptions. Ld. Counsel further contended that no land was allotted in this case and, as such, there was no loss to anybody. Accused D. K. Sinha is the only private person in the present case and he signed the application for revival of the Society in his own name. Had there been any malafide intention to cheat the Office of RCS and DDA, he would not have signed the application in his own name. Ld. Counsel has drawn the attention of the Court towards the statements of PW3 Sunil Kapil and CBI Vs. D. K. Sinha & others Page 8/16 (Kala Sangam CGHS) PW4 B. K. Gupta to show that these witnesses were coconspirators but they have not been made accused in the present case. According to Ld. Counsel, there is nothing on record to connect accused D. K. Sinha with the alleged offences and, therefore, he is also liable to be discharged.
9. According to accused Narayan Diwakar, he has done nothing wrong while discharging his functions as RCS. RCS does not deal with land as the same is the subject matter of DDA who allots the land in accordance with the Rules framed under DDA Act, 1957 and Disposal of Development Nazul Land Rules, 1981. CBI has committed various illegalities while investigating the matter. He placed reliance upon the judgment titled as Dr. R.R.Kishore v. CBI 2006 VIII AD (Delhi) 545, wherein it was held that if illegal investigation is brought to the notice of the Trial Court at the initial stage, then the court ought not to proceed with the trial but should direct reinvestigation in order to cure the defect in the investigation. Accused Narayan Diwakar has pointed out following illegalities:
(a) Consent of the State was not taken as required U/s 6 of the DSPE Act, 1946.
(b) Absence of notification U/s 3 of DSPE Act.
(c) Registration of case under various provisions of IPC instead of DCS Act which is a Special Act.
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(Kala Sangam CGHS) The contention that the consent of State was not taken is misconceived in the facts and circumstances of the present case. The investigation was referred to CBI in the present matter by the High Court. Once the order for investigation of a case to CBI is passed by the High Court under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a matter for investigation to CBI. Though not referred to and relied upon, for taking view I am supported with the order dated 17.9.2007 passed by Hon'ble Mr. Justice Sh. S.N.Dhingra in Criminal MC No. 2784 of 2007.
10. It is contended that the noncompliance of Sec.3 of DSPE Act, 1946 vitiates the entire investigation. As per Sec. 3 of DSPE Act, 1946, the Central Government makes notification in the official gazette to specify the offences or classes of offences which are to be investigated by Delhi Special Police Establishment. It is contended that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government u/s 3 of the Act and such offences, as notified, are mentioned in DSPE Act, 1946. The offences covered by Sec. 3 of the said Act do not include the offences under the Cooperative laws. Thus, the investigation done by the CBI for the cooperative societies is in violation of Sec.3 as it has no jurisdiction to conduct the investigation. In CBI Vs. D. K. Sinha & others Page 10/16 (Kala Sangam CGHS) my opinion the offences mentioned in the chargesheet are all notified offences U/s 3 of the DSPE Act and, therefore, no fresh notification is/was necessary.
11. All the accused have raised the contention that the DCS Act, is a complete self contained statute and, therefore, provisions of the Indian Penal Code cannot be invoked. The DCS Act, 1972 provides for a well defined system of addressing the issues relating to various private co operative societies and it contains the provisions of fine, appeal, punishment and, as such, the application of provisions of the IPC by the CBI is wholly illegal. It is further contended that the matter is covered under the provision of Section 82(3) of DCS Act which completely debars the prosecution without giving the opportunity of being heard as well as previous sanction of RCS. The offence alleged to have been committed by the accused is punishable under the provisions of Special law and, therefore, the provisions of Indian penal Code, being general law, cannot be invoked. In respect of this contention, accused have relied upon judgments State of Maharashtra Vs. Laljit Rajshi Shah & Ors. AIR 2000 SC 937; and Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd. & Ors. 2007(5) SCALE 366.
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12. The provisions under DCS Act and DCS Rules are for administration of Cooperative Group Housing Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. According to him, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law.
13. I have gone through the judgments cited by the accused. The cited judgments are not applicable to the facts of the present case. Wherever the Legislature in its wisdom deemed fit, they have restricted/prohibited the applicability of other Acts which could be seen from the provision of section 91 of DCS Act, 1972 which provides "The provisions of the Companies Act, 1956 shall not apply to Cooperative Societies Act". But such restriction/prohibition is nowhere mentioned in DCS Act, 1972 debarring the applicability of IPC or PC Act under which the accused persons have been chargesheeted. Thus, DCS Act does not impose any bar to take resort to the provisions of General Criminal Laws.
14. According to accused Narayan Diwakar, he was discharging his quasi judicial functions and as such he cannot be prosecuted. According CBI Vs. D. K. Sinha & others Page 12/16 (Kala Sangam CGHS) to him, under the provisions of Section 40 & 41 of the DCS Act, there is a presumption of genuineness of the documents filed in support of the application.
15. The facts and circumstances of the present case primafacie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. Bogus documents were used. The modus operandi of reconstruction of documents was adopted. The accused Narayan Diwakar followed the procedure with a view to give colour to his acts. Following procedure prescribed under the Act would not validate his acts when they were actuated with conspiracy to cheat the RCS and office of DDA.
16. It has been further contended on behalf of the accused persons that no land was allotted to the society and under these circumstances it cannot be said that DDA was cheated. Accused Narayan Diwakar and his subordinate staff/coaccused were bound to protect the interest of office of RCS. They in furtherance of the conspiracy entered into among them, cheated the institution of office of Registrar Cooperative Societies by doing act of revival of the society and they forwarded the letter to DDA for allotment of land. Therefore, primafacie case of cheating is also CBI Vs. D. K. Sinha & others Page 13/16 (Kala Sangam CGHS) made out against the accused persons.
17. Further, it is contended that there is no complainant in this case and, thus, the registration of FIR in the present case does not satisfy the ingredients of Section 154 Cr.PC. The contention is devoid of any merit. Our High Court of Delhi while hearing the Civil Writ Petition No. 10066/2004 passed order dated 2.8.05 directing the CBI to conduct the thorough investigation in the matter relating to 135 CGHS. In pursuance of the aforesaid order passed by the Delhi High Court in exercise of its inherent powers, an inquiry was conducted by CBI which disclosed commission of cognizable offence by the accused persons in the matter of dishonest and fraudulent revival of society. Therefore, CBI rightly lodged the FIR in the present case. While registering the FIR, the acts and omissions on the part of the accused persons and disclosure of commission of cognizable offences by them were detailed in the FIR. The FIR registered by CBI fully satisfies the ingredients of Section 154 Cr.PC. It is the settled law that once an investigation is directed into alleged offences by the Court, two conditions are necessary to commence the investigation:
(i) The police should have reason to suspect the commission of cognizable offence and;
(ii) A Police Officer should subjectively satisfy himself to the existence of CBI Vs. D. K. Sinha & others Page 14/16 (Kala Sangam CGHS) sufficient grounds to enter into investigation.
These two conditions were duly satisfied at the stage of lodging of FIR in the present case by the CBI before entering into investigation. Thus, the present FIR was rightly registered by the CBI and just because the FIR was not lodged on a complaint received from a complainant/individual is not a ground to discharge the accused.
18. From the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons of having entered into a criminal conspiracy to cheat the Office of RCS and DDA.
19. In view of the above discussion, I am of the opinion that:
(i) Primafacie case is made out against accused D. K. Sinha (A1), Narayan Diwakar (A2), Niranjan Singh (A3), P. K. Thirwani (A4) and Raman Kumar Verma (A5) for committing offences punishable u/s 120B r/w Sections 420/468/471 IPC r/w section 13 (2) r/w section 13 (1) (d) of PC Act, 1988. CBI Vs. D. K. Sinha & others Page 15/16 (Kala Sangam CGHS)
(ii) Primafacie case is made out against accused Narayan Diwakar (A2), Niranjan Singh (A3), P. K. Thirwani (A4) and Raman Kumar Verma (A5) for committing offences punishable u/s 15 r/w section 13 (1) (d) of P. C. Act, 1988.
(iii) Primafacie case is made out against accused D. K. Sinha for committing offences u/s 420/511, 468,471 IPC.
Announced today in open (PRAVEEN KUMAR) court on 31.01.2012. Special Judge, PC Act CBI3, Rohini Court, Delhi.
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