Delhi District Court
Cbi vs . 1 Yogi Raj, on 14 July, 2014
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 02/2011
RC S18 2006 E0002
U/s 120B r/w 420/468/471 IPC &
U/s 13 (2) r/w 13 (1) (d) & 15 r/w 13 (1) (d) of PC Act
Unique case I.D. No. 02406R0743562006
CBI Vs. 1 Yogi Raj,
Son of Sh. Girdhari Lal,
Resident of AP-77, Shalimar Bagh, Delhi.
2 Udhay Shanker Bhatnagar,
Late Sh. Shiv Shanker Bhatnagar,
Resident of B-479 Type-II,
Delhi Administration Flats, Timar Pur, Delhi.
3 Ram Nath,
Son of late Sh. Bishan Lal,
Resident of 192, Gali No. 9,
Guru Angad Nagar, Laxmi Nagar, Delhi.
4 Faiz Mohammad,
Son of late Sh. Gulam Mohd.
Resident of 4794 Bara Hindu Rao,
Pahari Dhiraj, Sadar Bazar, Delhi.
5 Gokul Chand Aggarwal,
Son of late Sh. Jagdish Parshad Aggarwal,
Resident of A-603, Ashoka Apartment,
Plot No. 36/2, Rohini, Sector-IX, Delhi.
6 Prahlad Kumar Thirwani,
Son of late Sh. Moti Ram Thirwani,
Resident of 348 E, Pocket-II,
Mayur Vihar Phase-I, Delhi.
7 Narayan Diwakar,
Son of late Sh. C. Lal,
Resident of G-30, Masjid Moth,
Greater Kailash-II, New Delhi.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 1 of 90
Date of Institution : 12.12.2006
Date of framing of charge : 13.08.2010
Date on which case was received on
Transfer by this Court : 16.09.2011
Date of conclusion of arguments : 08.07.2014
Date of Judgment : 14.07.2014
Memo of Appearance
Ms. Jyotsna Sharma Pandey, learned PP for CBI.
Sh. R.P. Shukla, learned defence counsel for A-1Yogi Raj
Sh. S.K. Bhatnagar, learned defence counsel for A-2 U.S. Bhatnagar, A-3 Ram
Nath, A-4 Faiz Mohammad, A-6 P.K. Thirwani
Sh. S.P. Mehta, learned defence counsel for A-5 Gokul Chand Aggarwal
Dr. Sushil Kumar, learned defence counsel for A-7 N. Diwakar
JUDGMENT
PROSECUTION SAGA 1.0 Present case relates to deceitful revival attempt of defunct Anand Cooperative Group Housing Society (Anand CGHS).
1.1 CBI had been asked to conduct inquiry with respect to illegal and unlawful revival of numerous defunct Group Housing Societies vide order dated 02.08.2005 of Hon'ble High Court of Delhi passed in CWP No. 10066/2005. Separate enquiries were accordingly made qua each such society. Anand CGHS was also under scanner. As per the outcome of preliminary inquiry, instant case i.e. RC S18 2006/E0002 was registered by CBI EOU-IV Branch, New Delhi on 02.01.2006.
1.2 Anand CGHS, having its registered address at Shop No. 1, Krishna Market, Kalkaji, Delhi, was originally registered with Office of Registrar of CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 2 of 90 Cooperative Societies (RCS) on 16.08.1972. It was given registration number 141/H. It was having 200 members and following office bearers as per the last legitimate election:-
S. No. Name Designation
1 R.L. Dang President
2 S.S. Tandon Vice President
3 K.L. Bhatia Secretary
4 Sardar Singh Treasurer
5 Somnath Member Managing Committee
6 Kailash Chand Member Managing Committee
1.3 Aforesaid shop of Kalkaji also belonged to said Sh. K.L. Bhatia.
Anand CGHS, vide letter dated 16.07.1973 prayed for allotment of land and deposited earnest money of Rs. 5,000/-. Delhi Development Authority (DDA) allotted four acres of land in Pitam Pura vide its letter dated 05.02.1975. However, society failed to deposit the requisite cost of land with DDA and due to non-payment of the 25 per cent of the cost of land to DDA, allotment was cancelled vide letter dated 01.08.1975 sent by DDA. Matter was, however, reconsidered by DDA and society was again directed to deposit 25 per cent cost of land by 30.12.1976 but society, again, defaulted in depositing such cost. DDA accordingly informed RCS office and closed the allotment issue.
1.4 Sh. Ashok Bakshi the then Deputy Registrar of RCS office issued Show Cause Notice dated 17.03.1978 as to why Anand CGHS be not brought under liquidation as it failed to take the land offered to it by DDA and had even taken back the earnest money from DDA. Society was accordingly put under liquidation vide order dated 30.12.1978 passed by Sh. Ashok Bakshi.
1.5 Said society, in fact, made an attempt to revive itself in 1988 and matter was taken up by the office of RCS as well. However, since there was no CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 3 of 90 record or audit, such request was not processed and matter of revival was eventually closed in September 1989.
1.6 So far so good.
1.7 Sh. Gokul Chand Aggarwal (A-5) somehow obtained some documents of Anand CGHS and fabricated and manipulated various other documents for the purpose of illegal revival of such defunct/liquidated society. He prepared books of accounts and various records in order to show that society was maintaining various files/registers e.g. registration file, RCS correspondence file, members correspondence file, membership register, proceedings register, GB meeting register, audit file, election file, share certificate book, application register, resignation file, application forms file, cash book, ledger accounts, share money receipt book and affidavits etc. 1.8 Sh. Gokul Chand Aggarwal (A-5), while impersonating as one non- existing/fictitious person Ram Avatar, alleged to be the secretary of Anand CGHS submitted application dated 14.10.2003 with Sh. Yogi Raj (A-1), Assistant Registrar, North-West, Office of RCS and requested for revival of society and cancellation of winding up order.
1.9 Matter was taken up in the office of RCS.
1.10 Sh. Faiz Mohd. (A-4) Dealing Assistant, in terms of criminal conspiracy and with fraudulent and dishonest intention, proposed name of Sh. Ram Nath (A-3) as Inspecting Officer u/s 54 of Delhi Co-operative Societies Act 1972 (in short DCS Act) to verify and examine the documents of such society. Such proposal was accepted in order to pass on illegal benefit to the applicant Ram Avtar who actually had no connection or association with the society or its genuine members.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 4 of 901.11 A-3 gave a false report without making any enquiry or inspection. In such note/report dated 29.11.2003, he falsely claimed that he had visited the office of society at 21 Siras Pur, Delhi and had even met Sh. Ram Avtar, Secretary of the society whereas the subsequent comprehensive investigation revealed that there was no such person with the name of Ram Avtar and there was no such record kept at such address either. He also falsely claimed in his inspection report that society had met all statutory requirements. He, even, permitted Gokul Chand Aggarwal (A-5) to sign as Ram Avtar in his inspection report as if he was actually the secretary of the society.
1.12 False record had been prepared by A-5 to show that last AGM of the society was held on 29.06.2003 under the chairmanship of one Sh. Man Singh and the election of the Managing Committee had taken place under the chairmanship of one Sh. Tej Bhan in which following persons were elected as office bearers:-
S. No. Name Designation
1 Tej Bhan President
2 Tejpal Vice President
3 Ram Avtar Secretary
4 Dharam Pal Treasurer
5 Hari Om Member Managing Committee
6 Godavari Devi Member Managing Committee
7 Janak Devi Member Managing Committee
1.13 A-4 Sh. Faiz Mohd., without making any scrutiny and while fully
aware that report was incorrect and application was coming from unauthorized quarter, put up note recommending revival of the society and approval of freeze strength of 201 members. Sh. Yogi Raj (A-1), being integral part of such criminal conspiracy, did not verify the documents and recommended and forwarded the matter to Registrar, Cooperative Societies (RCS) for revival of such defunct society.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 5 of 901.14 RCS initially returned the file to the concerned Zone for verification of members and to ascertain the audit and election status of the society.
1.15 Sh. U.S. Bhatnagar (A-2) was posted as UDC with the office of RCS. He, as Zonal Inspector, submitted a false verification report dated 26.12.2003 ( wrongly bears date as 26.12.2004 instead of 26.12.2003) projecting therein that he had conducted 10 per cent random physical check and falsely claimed in his report that the relevant documents annexed in his report i.e. share certificates and receipts had been taken from the members (randomly checked) whereas during the investigation, no such member was found in existence or residing at such addresses and thus the physical verification report was found to be false and forged.
1.16 Sh. Faiz Mohd put up another note falsely mentioning therein that all the formalities had been completed. He also claimed that he had also seen the entire record of society. He also claimed that random check of members had also been done by the Zonal Inspector and prayed for consideration of request for revival.
1.17 A-1 Sh. Yogi Raj, despite being conscious of the false report submitted by A-3 Ram Nath & A-2 U.S. Bhatnagar, forwarded the file to the office of RCS with recommendation to consider the revival of Anand CGHS u/s 63 (3) DCS Act 1.18 Sh. Narayan Diwakar (A-7), Registrar exercising his power u/s 63 (3) DCS Act, did not take any step to ascertain the genuineness of the documents as well as the identity of the so called office bearers of the society and cancelled the winding up order vide order dated 10.03.2004 with the condition that pending audit be completed within two months. Sh. N.S. Khatri was appointed Election Officer and the President and Secretary of the society were directed to cooperate with the Election Officer.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 6 of 901.19 Sh. P.K. Thirwani (A-6), Senior Auditor in the office of RCS was appointed Auditor to audit the accounts of the society for the period 1976-77 to 2002-03 and he also, in connivance with his co-accused, prepared false audit report on the basis of forged documents provided by G.C. Aggarwal (A-5). So much so, P.K. Thirwani (A-6) himself also signed as Tej Bhan, Ram Avtar and Dharam Pal whereas those persons were fictitious and non-existing.
1.20 Accordingly, freeze list was sent to DDA for allotment of land to Anand CGHS. Fortunately, the conspiracy got unearthed before the land could be allotted.
1.21 Investigation revealed that A-5 impersonated as Ram Avtar, a non- existing person and furnished a bogus list of 201 members of the society for approval. Residential addresses of such members including office bearers were either found non-existent or incorrect.
1.22 CBI carried out investigation and seized various record and also obtained report of GEQD and concluded that all such RCS officials had conspired with G.C. Aggarwal (A-5) and abused their official position and processed and passed the order for revival of the society on the basis of forged and fabricated documents so that land was allotted by DDA to such society at reserved price.
COGNIZANCE AND CHARGES 2.0 Charge sheet was filed in the court on 12.12.2006 and cognizance was taken by the court on 02.01.2007 and all the accused were accordingly ordered to be summoned.
2.1 A-1 to A-7 were charged u/s 120-B r/w Section 511/420 and Section 468/471 IPC & u/s 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 7 of 902.2 A-1 was also saddled with substantive offences u/s 471 and sec 511 r/w 420 IPC & u/s 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, A-2 with 468/471 IPC and sec 511 r/w 420 IPC & u/s 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, A-3 with 468/471IPC and sec 511 r/w 420 IPC & u/s 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, A-4 with 471IPC& u/s 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, A-5 with 468/471IPC and sec 511 r/w 420 IPC, A-6 468/471IPC and sec 511 r/w 420 IPC & u/s 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act & A-7 with 471IPC and sec 511 r/w 420 IPC & u/s 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act.
2.3 They all pleaded not guilty and claimed trial.
PROSECUTION WITNESSES 3.0 Prosecution was directed to adduce its evidence and has examined 38 witnesses.
3.1 Witnesses can be classified as under:-
(i) Witnesses related to post offices:-
PW9 Sh. Manoj Kumar, Postman, Kalkaji Post Office.
PW10 Sh. Mahipal Singh, Postman, Kalkaji Post Office.
PW13 Sh. Harbir Singh, Postman Kalkaji Post Office.
PW14 Sh. Deen Dayal, Postman, Sri Niwas Puri Post Office. PW15 Sh. Kanwar Singh, Postman, Samai Pur Badli Post Office. PW16 Sh. Satish Chandra, Postman, Lodhi Road Head Post Office.
(ii) Witnesses related to Notary Public/stamp/false affidavits:-
PW6 Sh. O. Vekateshwarlu, Asstt. Legal Advisor (Notary Cell), Ministry of L&J. PW7 Sh. Gaurav Gupta (son of Notary Public late Sh. Arun Kumar Gupta). PW8 Sh. Satbir, Stamp Vendor.
(iii) Members of Anand CGHS who denied having submitted any such affidavit:-
PW3 Sh. Amrit Lal.CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 8 of 90
PW4 Sh. Ashok Kumar Walia.
PW5 Sh. Satya Pal.
PW12 Sh. Jag Mohan Lal.
PW17 Sh. K.L. Bhatia.
PW18 Sh. Suresh Kumar.
PW19 Sh. Girdhari Lal.
PW21 Sh. Mohan Lal.
PW22 Sh. Shashi Kant Chawla.
PW23 Sh. S.K. Syal.
PW24 Sh. Man Singh.
PW25 Sh. Hakikat Rai Sharma.
(iv) Witnesses from RCS office:-
PW11 Sh. Vijay Kumar, LDC RCS office. PW20 Sh. Virender Kumar Bansal, Assistant Registrar, RCS Office. PW26 Sh. Narender Singh Khatri, LDC, RCS Office. PW28 Sh. Ashok Bakshi, Dy. Registrar, RCS Office. PW29 Sh. Jatinder Singh Sharma, Assistant Registrar (Audit). PW30 Sh. Madan Pal Sharma, Assistant Registrar (Policy). PW31 Sh. Satya Parkash Sharma.
PW33 Sh. Daya Nand Sharma, Assistant Registrar. PW34 Sh. Mahender Singh.
(v) Witnesses related to investigation and sanction:-
PW1 Sh. R. Narayana Swamy (Sanctioning Authority qua A-3 & A-6). PW2 Sh. S.K. Khosla, who forwarded the sanction order qua A-1. PW38 Sh. Vijay Kumar (Sanctioning Authority qua A-2). PW35 Sh. M.C. Joshi, GEQD.
PW36 Insp. Manjeet Singh, investigating officer.
PW37 Sh. Kuldeep Mishra the then Assistant Superintendent Jail in whose presence specimen signatures of A-2, A-4 & A-5 were taken.
(vi) Other witnesses:-
PW32 Sh. Kishore Kumar, CBI, EOU-IV, CGO Complex, Lodhi Road. PW27 Sh. Paras Nath, Assistant Director (Personnel Branch), DDA.
STATEMENTS OF ACCUSED(S) AND DEFENCE EVIDENCE
4.0 All the accused persons were asked to file written statements u/s 313 (5) Cr.P.C.
4.1 I would hasten to add that recording of statements of accused u/s 313 Cr.P.C. is indeed a very important stage. Accused can be questioned and can be asked to explain any circumstance appearing in evidence against him.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 9 of 90Such questions can be put at any stage. However, after the prosecution evi- dence is complete, it is mandatory for the Court to explain the circumstances ap- pearing in evidence against him. Any such accused is required to be questioned generally about the case. However, by virtue of Amendment Act 5 of 2009, which came into effect on 31.12.2009, instead of preparing a questionnaire and putting across the same, any such accused can be permitted to file a written statement and in case any such written statement is filed, it amounts to sufficient compliance of Section 313 Cr.P.C.
4.2 In the present case, prosecution evidence was closed on 18.11.2013 and it was asked from all the accused whether they were desirous of filing any such written statement u/s 313 (5) Cr.P.C. or not. They all were also apprised that they would be required to make a mention about the deposition of all the witnesses and the documents exhibited during the trial in such written statement and would be also required to explain about the incriminating evidence or circumstance or documents proved during the trial. They were also told that they would be also required to specifically mention whether any witness or document was concerning them or not and to reveal their defence as well. In order to enable them, Ahlmad of the Court was also directed to provide them the entire evidence in soft form. Since all the accused expressed their willingness to file written statements u/s 313 (5) Cr.P.C., they were permitted to file the same. Accordingly, they all filed such written statements.
4.3 Suffice it to say that they all pleaded innocence and claimed false implication.
4.4 As far as A-5 is concerned, he did not desire to lead any evidence in defence. Other accused though desired to lead evidence in defence yet fact remains that only one witness entered into witness box as defence witness.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 10 of 904.5 A-3 Ram Nath examined DW1 Narender Singh Khatri in his defence. It is, however, important to mention that such Sh. Narender Singh Khatri was though cited as prosecution witness and had been examined by the prosecution as PW26 yet in the interest of justice, he was permitted to be examined by defence.
4.6 It would also be important to mention here that defence also wanted to examine PW15 Kanwar Singh and PW33 D.N. Sharma in order to substantiate their defence. Accused, however, had also prayed for their examination by moving an application u/s 311 Cr.P.C. and in the interest of justice, defence was, instead, permitted to cross-examine those two witnesses again. Feeling satisfied, they were not examined in defence by the accused.
4.7 Defence also wanted to examine one Sh. J.S. Sharma in their defence but said witness was dropped.
4.8 Therefore, effectively there is only one defence witness i.e. DW1 Narender Singh Khatri.
RIVAL CONTENTIONS 5.0 Ms. Jyotsna Sharma Pandey, Learned Sr. PP for CBI has contended that CBI has been able to prove its case to the hilt.
5.1 According to her, all the public servants-accused were hands-in- glove and were actively and intentionally helping private person i.e. accused Gokul Chand Aggarwal (A-5). They all knew that Anand CGHS was no more active as no one on its behalf ever sent any correspondence after 1988. Either the record was not there in RCS office or such record was got out of sight. A-5 wanted to utilize the name and registration of such dormant society so that it could bag land from DDA. It was possible as allotment was to be on the basis of CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 11 of 90 seniority which naturally related to date of registration.
5.2 A newly created society would not have got any land and, therefore, record was fabricated with active connivance of officials of RCS and it was shown that said society wanted its revival.
5.3 Sh. R.P. Shukla has defended A1 Yogi Raj. His contentions can be summarized as under:-
i FIR could not have been registered as there was no such direction contained in order dated 2.8.05 passed by Hon'ble High Court of Delhi in CWP No. 10066 of 2004.
ii Even if the FIR had been registered unauthorizedly, the investigation could not have been carried out for want of authorization u/s 6 of DSPE Act.
iii Assistant registrar has not deviated from the established norms and has acted upon the reports submitted by his subordinates, from time to time, and at no point of time, he could have inferred that any document was forged or fabricated.
iv If Assistant Registrar was acting in connivance with private persons then he would not have recommended inspection u/s 54 DCS Act.
v As Assistant Registrar, he was found bound to follow the directions of his superior and, therefore, the matter was processed in view of the specific directions contained in order dated 2.8.2000 passed by Sh. R.K. Srivastava the then RCS.
vi He had no reason to meet any of the office bearers and rather the inspection was recommended and he had no reason to disbelieve the inspection report of Ram Nath or the subsequent physical verification report submitted by Sh. U.S. Bhatnagar. Such physical verification report was duly supported with documents and, therefore, the Assistant Registrar could not have smelt anything fishy as in terms of section 41 of DCS Act such record was required to be held as prima facie admissible.CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 12 of 90
vii Lastly, taking shelter behind general defence as envisaged u/s 76 of IPC, prosecution is misconceived.
5.4 He has also relied upon the various authorities which I would deal at appropriate places.
5.5 Sh. S.K. Bhatnagar, Learned defence counsel for A-2 U.S. Bhatnagar, A-3 Ram Nath, A-4 Faiz Mohammad and A-6 P.K. Thirwani has contended that all of them are innocent and have been unnecessarily arraigned as accused. It has been argued that they had merely discharged their respective official duties and had no reason whatsoever to disbelieve or suspect the record submitted before them. It has also been asserted that even otherwise it remained a mere case of preparation and not attempt. It has also been argued that even otherwise, all such public servants enjoyed immunity from prosecution u/s 95 of DCS Act.
5.6 As regards A-2 U.S. Bhatnagar, it has been argued that spot inspection had been carried out as per verbal directions and such inspection report could not be impeached during the trial. He had given report regarding 23 members and CBI has examined only three such members and even they have not been able to prove anything qua A-2. No witness has elaborated as to what norm or guideline was violated by him. It has been claimed that there was no dereliction of duty on his part at all. His house-search did not yield anything incriminating and there is no evidence of his getting any pecuniary advantage either. Sanction for his prosecution u/s 19 PC act has been challenged and it has also been stressed that there was mandatory requirement to obtain sanction u/s 197 Cr.P.C. It has also been claimed that he had no role in revival as such and, therefore, there was nothing to infer him as a co-conspirator.
5.7 As regards A-3 Ram Nath, it has been argued that he had carried out the inspection in normal office routine and moreover there is nothing on CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 13 of 90 record which may show that his inspection report was bogus or false. According to him, even Assistant Registrar has confirmed the genuineness of the claim of society by verifying the same from original record and, therefore, there was no reason for him to have smelt anything fishy and moreover, in such a backdrop, the report given by him had become totally inconsequential. It has been claimed that there is nothing on record which may indicate that he had permitted A-6 to sign as Ram Avtar in inspection report. According to him, CBI deliberately did not make any effort to find out Ram Avtar and premises of society were also not properly searched. Revival order was dispatched to such address by post and no such letter was received back undelivered which rather go on to show that address was correct and genuine. Same issue of invalid sanction and want of sanction u/s 197 Cr.P.C. have been re-agitated.
5.8 As regards A-4 Faiz Mohd., his notings though have been admitted yet it has been vehemently claimed that he was merely a Dealing Assistant who was acting under the directions of his superiors. He had merely put up the papers before his superiors and all the decisions were taken by his superiors only. It has been contended that he cannot be hauled up merely because he had put up the papers before his superior in discharge of his official duties. Moreover, even the note in question i.e. note dated 29.11.2003 was in fact got typed by A-1 Yogi Raj. It has been also claimed that all the RCS officials have rather been cheated by imposter A-5 Gokul Chand Aggarwal who posed as Ram Avtar. It has been claimed that there was no dereliction of duty on his part at all. His house-
search did not yield anything incriminating and there is no evidence of his getting any pecuniary advantage either. It has also been stressed that there was mandatory requirement to obtain sanction u/s 197 Cr.P.C. It has also been claimed that he had no role in revival as such and, therefore, there was nothing to brand him as a co-conspirator.
5.9 As regards A-6 P.K. Thirwani, it has been argued that he had entered the scene after the revival order only and, therefore, there was no CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 14 of 90 question of him being dubbed as conspirator. According to Sh. Bhatnagar, learned defence counsel, he never signed as Tej Bhan, Ram Avtar or Dharam Pal and the report of GEQD had no value as his opinion was not sought on some other crucial questioned signatures. It has been argued that CBI failed to appreciate the difference between writing mere names and putting signatures. It has been contended that even PW29 J.S. Sharma, AR(Audit) did not find anything against him.
5.10 Sh. S.P. Mehta, learned defence counsel for A-5 Gokul Chand Aggarwal has fervently contended that he has been falsely implicated. According to him, he has been dragged into this case on pure conjectures and prosecution has not been able to prove its case qua him in any manner whatsoever. His arguments can be summarized as under:-
a) He had never visited the office of RCS in connection with Anand CGHS and no prosecution witness, including officials of RCS, has even made a whisper to that effect.
b) There is nothing to indicate that he had purchased the stamp papers for affidavits in question.
c) Testimony of PW17 Sh. Bhatia does not impeach him in any way.
d) Obtainment of specimen handwriting of A-5 and its manner were in flagrant violation of law. Such opinion even otherwise does not castigate him.
e) Investigation is tainted and motivated. f) There is no wrongful loss or wrongful gain to anyone. g) There is no false inducement. 5.11 Dr. Sushil Kumar, learned defence counsel has defended
accused N. Diwakar (A-7). He has contended that CBI has not been able to bring on record any fact or circumstance which may indicate his involvement in any manner whatsoever. Dr. Kumar has not disputed that accused N. Diwakar was posted as Registrar in the office of RCS at the relevant time and had dealt with the matter related to cancellation of winding up order in question. It has, CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 15 of 90 however, been argued that he had acted in discharge of his official duties and had primarily relied upon documents placed before him by the society as well as various notings prepared by his subordinates. According to him, nothing could remotely suggest any forgery or fabrication of record. It has also been contended that since accused N. Diwakar was acting in discharge of his official duties, prosecution could not have been launched against him without obtaining mandatory sanction u/s 197 Cr.P.C. It has also been argued that no prosecution witness has whispered even a single word about any involvement of accused N. Diwakar and he cannot be held guilty merely on surmises and conjectures derived from the notings alone. It has also been vehemently stressed that in view of the specific provisions appearing in DCS Act 1972, he was well within his right to cancel the winding up the order u/s 63 (3) of DCS Act. It has also been argued that prosecution has not even attempted to examine the concerned advocate who had allegedly represented the society during such proceedings when the winding up order was recalled and, therefore, prosecution has not been able to prove its case even otherwise. It has also been argued that Court should rather draw adverse inference for holding her back.
5.12 Citing various provision of DCS Act and also relying upon various precedents, it has been averred that even otherwise in any such situation, RCS did not have any option but to cancel the winding up order. Additionally, it has been contended that CBI had conducted a full-fledged preliminary inquiry and FIR was registered thereafter only and as per the outcome of such preliminary inquiry, no case was found made out against accused N. Diwakar and, therefore, his name did not figure as an accused in the FIR in question. This rather indicates that he has been made a scapegoat and his name has been added subsequently with some ulterior motives.
5.13 Finally, reliance has also been placed u/s 76/77 of IPC and it has been claimed that accused cannot be questioned because the act was done by him in good faith for discharging his official duties and, therefore, he was CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 16 of 90 enjoying immunity from prosecution. In support of his contentions, he has also relied upon various judgments which I would advert to at appropriate places.
EVALUATION OF EVIDENCE 6.0 I have carefully perused the entire material available on record and given my thoughtful consideration to the rival contentions.
6.1 I would also hasten to add that all public servants-accused have no qualm regarding office notings or their signatures wherever appearing in the relevant file.
6.2 Let me first see the initial record pertaining to Anand CGHS. Ostensibly, there does not seem to be any dispute qua such record 6.3 Let me, right here, take up the testimony of PW17 Sh. K.L. Bhatia on this aspect of the case.
6.4 PW17 Sh. K.L. Bhatia deposed that he was carrying business related to tent-house during 1970-71 and also was actively involved with the social activities of Congress Party. He knew Sh. R.L. Dang, Sh. Sardar Singh, Sh. K.C. Gujral, Sh. Sant Ram, Sh. Kewal Krishan and some others and they formed a group housing society under the name of Anand Cooperative Group Housing Society. He also deposed that he was General Secretary of such society and Mr. R.L. Dang was its President and Sh. Sardar Singh its Treasurer. He deposed that there were approximately 200 members in such society and DDA had allotted land to their society in 1975. Such land was situated in Old Delhi for which their society was not willing and, therefore, formalities were not completed and resultantly the land was not allotted to them. He also deposed that there was a raid of Income Tax in the year 1977-78 and entire record of their CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 17 of 90 society was seized by IT authorities as well as CBI. Thereafter, Management Committee of their society requested Registrar of Cooperative Societies (RCS) for return of relevant documents like Registration Certificate, Bylaws and other documents as the society was not in a position to function without the same. Thereupon, RCS office informed them that their society was in liquidation.
6.5 I have also seen the testimony of PW27 Sh. Paras Nath, DDA official. He also deposed that there were 200 members in Anand CGHS as per record available with DDA. Such list has been proved by him as Ex. PW27/C (D-10 page-30). He was posted in DDA as Assistant and was dealing with the matters related to CGHS Branch. He deposed that land is allotted to societies as per the policy of allotment and on the basis of recommendation received from office of RCS. Allotment was on the basis of seniority of registration and also subject to availability of land. He deposed that Anand CGHS had applied for allotment of land and such society had also deposited Rs. 5,000/- towards earnest money and was offered 4 acres land in Pitam Pura but society did not deposit any amount towards cost of land and, therefore, allotment of land was closed and intimation was sent to Anand CGHS by DDA on 01.08.1975. He also deposed that Anand CGHS again applied for allotment of land and again land was allotted to Anand CGHS but such society did not deposit any amount and, therefore, case of the society was closed. Relevant noting in this regard has been proved by him as Ex. PW27/D (D-10 page 12N).
6.6 It will be also useful to note that it was PW28 Sh. Ashok Bakshi who was functioning as Deputy Registrar in the office of RCS during 1977-79 and who had passed the liquidation order on 30.12.1978 with respect to Anand CGHS. Such liquidation order has been proved as Ex. PW28/A (D-10 page 63).
6.7 Here, one point is, however, required to be noticed. Such liquidation order is dated 30.12.1978 but when Ram Avtar as secretary of Anand CGHS prayed for revival, he gave another number and another date of such CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 18 of 90 order i.e. order No. LIQ/Coop/GH/5/1144-1203 dated 29.09.1986 It is really bewildering as to why RCS officials did not even try to cross-check from their record whether the details provided by applicant Ram Avtar were correct or not. They could have easily cross-checked such fact from the office of liquidator, from their own record or from DDA. So much so, they did not even try to ascertain about the status of such liquidation proceedings. Their haste and inaction in this regard is certainly bound to raise eyebrows. They also were least bothered that similar request made by such society in 1988 also did not meet with any success and they did not try to gather as to why such society had woken up after 15 years and wanted land. A society is always required to keep office of RCS informed about all details on regular basis. It is indeed surprising that all these years, not even a single correspondence was received from such society by the office of RCS which otherwise went on to claim that it had removed all the objections and was functional.
6.8 As per sec 53 of DCS Act, Registrar shall audit or cause to be audited by a person authorised by him general or special order in writing in this behalf, the accounts of every co-operative society at least once in each year. During such audit, the person auditing the accounts of a co-operative society can examine books, accounts, papers, vouchers, stock and other property of such society and can even summon any officer, agent, servant or member of the society, past or present, who he has reason to believe can give valuable information in regard to transactions of the society or the management of its affairs. RCS officials did not even blink as to why there was no such mandatory audit of such society for last so many years.
6.9 Thus, it becomes apparent that Anand CGHS had been allotted piece of land twice but such allotment was cancelled/closed as society had not taken the requisite steps. Sh. Ashok Bakshi has proved the liquidation order passed by him. As per such liquidation order Ex. PW28/A, society was ordered to be liquidated as it failed to fulfill its objectives. Such liquidation order was CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 19 of 90 passed u/s 63 of Delhi Cooperative Societies Act (DCS Act) and liquidator was appointed u/s 66 of DCS Act. PW28 Sh. Ashok Bakshi also deposed that after the appointment of liquidator, liquidator used to start his own file and used to take appropriate action as per law under the supervision of RCS and during his tenure of two years, he (Mr. Bakshi) did not come across any instance of revival of society which had been otherwise put under liquidation. In his cross- examination, he, though, admitted that there was provision for revival of society yet defence cannot be permitted to dig out any advantage out of such fact. Merely because such provision exists does not mean that RCS officials could have processed the request in flagrant violation of even basic norms.
6.10 PW11 Sh. Vijay Kumar had been appointed liquidator in terms of order passed by Sh. Ashok Bakshi. He deposed that he had gone to the office of such society and had met Sh. K.L. Bhatia and Sh. Sardar Singh. He also deposed that a notice was issued for calling General Body Meeting of Anand CGHS. Such notice has been proved by him as Ex. PW11/A (page-38C of D-5/1). Such GBM was to take place on 29.06.1988 at 11.00 AM at 13 Kasturba Gandhi Marg, Connaught Place, New Delhi under the presidentship of Sh. R.L. Dang and such meeting, in fact, took place and was attended by 79 members. Minutes of the meeting were also prepared and such minutes have been proved as Ex. PW11/B (page-44C to 47C of D5/1). These minutes do indicate that said society, at that point of time i.e. in June 1988, had resolved to revive the society and Sh. Sardar Singh had been authorized to take requisite steps and to sign wherever required to achieve such purpose and objective. PW11 Vijay Kumar deposed that he does not remember as to what was eventually recommended by him. He claimed that he could throw desired light only if such recommendation was shown to him. He, however, did admit that as per minutes of meeting, it was decided that society be revived.
6.11 PW17 Sh. K.L. Bhatia has also deposed that they had prayed for revival of the society and in this regard he has proved his letter Ex. PW17/A. He CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 20 of 90 deposed that his premises i.e. Shop No. 1, Main Market, Kalkaji, was raided by Income Tax Department and such premises was also being used as office of the society and the record of the society was also seized in such raid. Such letter dated 01.01.1988 indicates that society was willing for revival and wanted to function again and, therefore, prayed that some record may be made available to them by the office of RCS.
6.12 It is, however, apparent that society was never revived pursuant to such request of year 1988. Reference be made to notings Ex. PW33/A contained in D-5 proved by PW33 Sh. Daya Nand Sharma who was posted as Assistant Registrar, North-West, RCS in 2003. He was shown file D5/1 related to correspondence in connection with Anand CGHS and he proved the relevant note-sheets as Ex. PW33/A (20 sheets). Initial notings clearly indicate that there was no audit for the period 1988-89. Noting dated 08.03.1989 indicates that since the complete record of the society was under the custody of Income Tax Department since 1978, there was no business conducted by the society and, therefore, there was no question of revival of society. Finally, it was decided that no further action was warranted and the last noting in this regard is of September 1989.
6.13 Thus Anand CGHS, through its genuine office bearers, had prayed for revival of the society in the year 1988 and such request was declined.
6.14 Now comes the crucial development.
6.15 A letter dated 14.10.2003, ostensibly signed by one Sh. Ram Avtar as President/Secretary of Anand CGHS, is received in the office of Assistant Registrar (NW) from Anand CGHS. It discloses that such society had been ordered to be wound up vide order No. LIQ/Coop/GH/5/1144-1203 dated 29.09.1986 on the ground that society had failed to call Annual General Body Meeting and also because the society had failed to hold the election of the CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 21 of 90 Managing Committee and that those shortcomings had been removed by the society. Manifestly, the reason assigned for winding up was different from the actual one. It was also mentioned in such letter that fresh election of the Managing Committee had been conducted on 29.06.2003 in accordance with the relevant provisions and the record pertaining to Resolutions, Election and General Body Meeting would be produced as and when requisitioned. It was also intimated that the Managing Committee had prepared all the Books of Accounts and fresh list of members, as on date, had been drawn up in the prescribed proforma and it was, therefore, requested that winding up order may be cancelled and the society may be permitted to function.
6.16 Such letter dated 14.10.2003 was bearing signatures of said Sh. Ram Avtar at portion Q347. According to CBI, conspiracy had been cooked up and A-5 along with various other officers of RCS came up with request for revival of Anand CGHS and cancellation of winding up order by forging the record and with the intention of cheating and usurping land. According to CBI, such society had actually become totally non-functional and A-5 was somehow able to catch hold of some of such record of Anand CGHS and then fabricated subsequent record in order to show that society was functional and thus, attempt was made to illegally procure land from DDA. As per said letter sent by Sh. Ram Avtar, fresh election of Managing Committee had been conducted on 29.06.2003. General Body Meeting of Anand CGHS allegedly took place on 29.06.2003 at 10.30 AM at its office address 21 Siraspur, Delhi-42 under the chairmanship of Sh. Man Singh and 56 members attended such meeting and such minutes are Ex. PW24/A which were also signed by said Sh. Man Singh at point A. 6.17 However, PW24 Man Singh has exposed the forgery in this regard. His deposition indicates that he was one of the founder members of Anand CGHS. He knew Sh. K.L. Bhatia. He deposed that society in the name of Anand CGHS was formed and its in-charge was one Sh. Sardar Singh and he became member at the request of Sh. Sardar Singh. He deposed that he did not know as CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 22 of 90 to what had happened in that society as he did not take any interest in the affairs of any such society and never attended its meeting and never participated in any election. He also deposed that he never signed anywhere with respect to the affairs of society at any point of time. He was shown such Minutes and he out rightly denied his signatures purportedly at point A on Ex. PW24/A (D5/1 page 56/C). He reiterated that he never attended any meeting and was never associated with the election pertaining to such society. He also denied his signatures on Election Report which purportedly bears his signatures at Q-353 (page 70/C of D5/1) and on meeting notice for meeting dated 29.06.2003 at points Q351 and Q352 (page 77/C of D-5/1). All these documents are part of Ex. PW24/B. 6.18 Thus, election had purportedly taken place under the chairmanship of Sh. Man Singh but Sh. Man Singh has point blank denied participating in any such meeting or having conducted any such election and has also deposed that he never signed any such proceeding.
6.19 On various documents contained in Ex. PW24/B, same Sh. Ram Avtar has also signed as Secretary of Anand CGHS. His signatures are there on points Q337-Q343. As per election, Sh. Tej Bhan was elected as President, Ved Pal as Vice President, Ram Avtar as Managing Committee Member besides other members. Sh. Ram Avtar was appointed Secretary on the proposal of Tej Bhan (President) and name of Dharam Pal was proposed as Treasurer and they both were accordingly elected to the aforesaid posts.
6.20 Let me now see as to who had actually prayed for the revival of the society vide letter dated 14.10.2003.
6.21 According to the specific case of CBI, it is A-5 Gokul Chand Aggarwal who had impersonated as Ram Avtar and had been interacting with the various officials of RCS for the illegal and unauthorized revival of Anand CGHS.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 23 of 906.22 A-5 Gokul Chand Aggarwal has pleaded innocence. According to him, he had no concern with the society in question and he was neither its member nor its office bearer and he never signed in any capacity whatsoever in connection with the any of the alleged documents related to Anand CGHS. He also claimed that he never visited the office of RCS in connection with alleged revival. His such stand is very much apparent from the comprehensive written statement filed by him u/s 313 (5) Cr.P.C.
6.23 Let me see as to who can establish that it was A-5 only who had been appearing before the office of RCS and representing Anand CGHS pursuant to application dated 14.10.2003.
6.24 I have seen various notings contained in D-5/1. As already noticed, there is no dispute with respect to the notings and the signatures of various RCS officials appearing thereon. PW33 Sh. Daya Nand Sharma was shown the correspondence file pertaining to Anand CGHS running into 314 pages which also contained 21 noting sheets and he identified signatures of accused Yogi Raj, Faiz Mohd., Ram Nath and N. Diwakar. When his deposition was recorded, all the concerned public servants-accused also claimed that they did not dispute their signatures on such notings. Statements of A-1, A-2, A-3, A-4 & A-7 were recorded by the Court on 15.02.2013 in which they specifically claimed that they did not dispute their signatures and handwritings which were made by them during discharge of their official duties and they also stated that they had no objection to the exhibition of report of Sh. M.C. Joshi, GEQD.
6.25 Someone, in flesh and blood, must have been interacting with the RCS officials but it is surprising as to why none of such RCS official mustered courage and revealed the name of that person. None of them admitted before the Court that it was A-5 Gokul Chand Aggarwal who had been interacting with them and who had been representing Anand CGHS. For totally unfathomable CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 24 of 90 reasons, they have chosen to remain tight-lipped and even during the course of final arguments, they did not dare to raise accusing finger towards A-5 Gokul Chand Aggarwal. Should I assume their silence to be an indicator of their being co-conspirator with A-5 Gokul Chand Aggarwal? Suffice it to say that in written statement u/s 313 (5) Cr.P.C. only A-4 Faiz Mohd. had shown some guts in this regard. In Para-13 of his written statement (Ex. A-4), he claimed that RCS officials had been apparently duped by said impersonator Sh. Gokul Chand Aggarwal who posed as Ram Avtar, Secretary of society.
6.26 Though CBI was having sufficient evidence with it, yet, I strongly feel that in such type of matters, it would have certainly given extra impetus to its case if it had chosen to make at least one such RCS official as approver so as to acquire additional corroboration on this crucial aspect of the case.
6.27 I would hasten to supplement that one Sh. Ram Avtar was, in fact, a genuine member of Anand CGHS whose name is found mentioned at serial no. 88 of the list of members. As per the charge-sheet, Sh. Ram Avtar has been labeled as non-existing/fictitious person. Defence cannot be permitted to take out any advantage on this score. CBI merely wants to emphasize and stress that application had come from one Ram Avtar who signed as Secretary of Anand CGHS but in fact actual Anand CGHS had never authorized any such Ram Avtar and it is only in that context that that Ram Avtar has been claimed to be a non-existing/fictitious person.
6.28 In the notings, presence of such Ram Avtar is nowhere specifically mentioned but undoubtedly, concerned RCS officials must be in touch with him. As per report of Insp. Ram Nath, he had gone to the office of the society and met Ram Avtar, Secretary of the society who had produced the relevant record. Matter was thereafter sent to the Court of RCS for consideration where one Ms. Rita Kaul, Advocate represented the society.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 25 of 906.29 Naturally, such Rita Kaul is found to be an important witness. Her statement u/s 161 Cr.P.C. was recorded during the investigation and as LW19 she had claimed that Sh. Gokul Chand Aggarwal had introduced himself as legal advisor/ liaison officer of such society and engaged her. Such key witness was not examined by the prosecution. During course of the arguments, Ms. Jyotsna Sharma Pandey, learned PP for CBI informed the Court that this witness was not examined as she did not choose to reveal the truth when she was examined by another Court in other connected matter of similar nature as she had been won over by the accused. Be that as it may, fact remains that I am compelled to draw adverse inference against the prosecution because of her non-examination during the trial and as a necessary corollary, it is assumed that she would not have spoken anything against A-5 Gokul Chand Aggarwal.
6.30 PW34 Sh. Mahender Singh also remained posted in RCS office and he was in North-West Zone till 2005. He claimed that there were two Assistant Registrars in North-West RCS office i.e. he himself and A-1 Yogi Raj. He deposed that accused Gokul Chand Aggarwal also used to frequently visit RCS office and used to meet A-1 Yogi Raj. So much so, he also claimed that whatever letter or correspondence used to be meant for Gokul Chand Aggarwal, he used to give the same to him under acknowledgment/ signatures as per the orders of Sh. Yogi Raj. He also deposed that he could not identify his signatures as such Gokul Chand Aggarwal used to make different types of signatures. He also deposed that Gokul Chand Aggarwal used to collect letters with respect to two or three societies. Needless to say that during the trial, PW34 Sh. Mahender Singh also correctly identified Sh. Gokul Chand Aggarwal.
6.31 Sh. Mehta, learned counsel for A-5 has contended that testimony of PW34 Mahender Singh does not take the case of CBI anywhere as his testimony is vague and unspecific. He has also claimed that no definite reference was made by said witness to any document on which Sh. Gokul Chand Aggarwal might have signed before him and this witness also did not make reference to CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 26 of 90 any specific document which might have received by Gokul Chand Aggarwal directly from him. Undoubtedly, his testimony is not very pinpointed and clear- cut but it does indicate that accused Gokul Chand Aggarwal used to frequently visit the RCS office and also used to meet accused Yogi Raj. He also used to collect letters with respect to two or three societies and used to sign differently. This particular aspect of the case could not be dislodged even when this witness was grilled by the counsel for A-5 Gokul Chand Aggarwal during the cross- examination. Moreover, A-5 has not bothered to explain as to why he had been going to RCS office.
6.32 Now comes a very significant evidence against A-5 Gokul Chand Aggarwal.
6.33 During investigation, CBI took the help of handwriting expert and sent various questioned handwritings and signatures to CFSL Chandigarh and as per the report of such expert, it was eventually found that it was A-5 Sh. Gokul Chand Aggarwal who had been signing as Ram Avtar besides other office bearers.
6.34 On this aspect, defence has seriously disputed the manner of taking specimen handwriting/signatures. It has been argued that specimen handwriting/signatures had been taken without the orders of the Court and moreover accused was coerced to write specimen writing in a specific manner which was absolutely against the principles of taking specimen handwriting/signatures for the purpose of comparison.
6.35 Specimen handwriting of Gokul Chand Aggarwal had been taken when he was in judicial custody and was lodged in Central Jail Tihar. In this regard, reference be made to the testimony of PW37 Sh. Kuldeep Mishra who was posted as Assistant Superintendent, Central Jail No. 4 during the relevant period. He has deposed that CBI officials had come to Tihar for obtaining CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 27 of 90 specimen signatures of some of the accused who were lodged in Tihar Jail and he deposed that signatures of accused Gokul Chand Aggarwal had been taken by CBI in his presence. Such specimen sheets have been proved as Ex. PW35/A (S-1 to S-22 of D-10). It will be also important to mention that specimen handwriting/signatures of Gokul Chand Aggarwal were taken on one more subsequent occasion i.e. on 25.10.2006 and such specimen handwriting sheets have been proved as Ex. PW35/C collectively (S-71 to S-190). Undoubtedly, specimen handwriting had been taken without any express and very specific order of the Court. PW36 Sh. Manjeet Singh (IO) has also admitted such fact though he clarified that since he had taken the permission from the Court to interrogate him, taking of specimen handwriting and signatures was also with the permission from the Court. He, however, admitted that he did not recall whether he had taken any specific permission from the Court for taking specimen handwriting. He claimed that he was provided a separate room and one assistant was deputed by Jail Superintendent and then he had taken the specimen handwriting. He also deposed that specimen handwriting of any such person is taken by showing questioned documents and any such accused is then asked to write in the same manner. He denied that procedure adopted by him for taking specimen handwriting was wrong. He also denied that such specimen handwriting had been taken when witness Kuldeep Mishra was not present. I would like to mention right here that there is no specific suggestion that these specimen handwritings were not of Gokul Chand Aggarwal. There is also no suggestion that Gokul Chand Aggarwal had been coerced to give specimen handwriting.
6.36 Undoubtedly, as per one judgment of our own High Court relied upon by defence and cited as Sapan Haldar & Anr. Vs. State 191 (2012) DLT 225, Delhi High Court, investigating officer has no power to take specimen handwriting or signatures but there is one Apex Court ruling on the same issue which is to the contrary. In the case of Ravindra Singh @ Dara Singh Vs. Republic of India AIR 2011 SC 1436, Hon'ble Apex Court has, in no uncertain CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 28 of 90 terms, held that investigating officer has power to take specimen signature during the investigation even without permission of the Court and that report of any such expert based on such specimen signatures/writing could be used as evidence. Reference be also made to Umesh Kumar Vs. State of A.P. 2013 (IX) AD SC 581 which declares that even if a document is obtained in improper and illegal manner, there is no bar to its admissibility provided such document is relevant and its genuineness is also substantiated. Viewed from any angle, I do not find merit in the defence contention that the specimen handwriting/ signatures could not have been taken without the orders of the Court. Moreover, accused Gokul Chand Aggarwal was already running in judicial custody in some other case and was lodged in Tihar Jail and investigating officer had gone to interrogate him with a specific permission of the Court. Since interrogation was as per order of the Court, while interrogating, such investigating officer was not prohibited or debarred from taking specimen handwriting of any such accused under interrogation. As I have already observed above, there is no suggestion to PW36 Sh. Manjeet Singh (IO) or to PW37 Sh. Kuldeep Mishra (attesting witness) that A-5 Gokul Chand Aggarwal was coerced to give specimen handwriting/ signatures and, therefore, it has to be necessarily inferred that A-5 had given his specimen handwriting/signatures voluntarily.
6.37 PW35 Sh. M.C. Joshi had examined the documents in question. His qualifications evidently make him fall within the category of expert. He is having vast experience in the field of examination of handwriting and at the relevant point of time, he was Assistant Government Examiner of Questioned Documents, Directorate of Forensic Sciences, Ministry of Home Affairs, Government of India and was posted in Chandigarh. He was supplied with questioned documents as well as the specimen handwritings of various accused including A-5 Gokul Chand Aggarwal and after careful and thorough scientific examination, he gave opinion(s).
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 29 of 906.38 As regards A-5 Gokul Chand Aggarwal, he gave opinions twice. His first opinion/report is Ex. PW35/E (part of D-21) and his supplementary opinion/report is Ex. PW35/G (part of D-43) and as per his both the reports, questioned handwriting had been written by one and same person i.e. A-5 Gokul Chand Aggarwal (author of specimen handwriting from S-1 to S-22, S-64 to S-78 and S-171 to S-190). Such questioned handwritings are as under:
S. Q Description of document D, Page & Exhibit Signed as No. Number Number 1 Q301 List of members of Anand CGHS D-5/1, 449 Tej Bhan, President of Anand CGHS. 2 Q302 List of members of Anand CGHS D-5/1, 449 Ved Pal, Vice President of Anand CGHS. 3 Q304 List of members of Anand CGHS D-5/1, 451 Tej Bhan, President of Anand CGHS. 4 Q305 List of members of Anand CGHS D-5/1, 451 Ved Pal, Vice President of Anand CGHS. 5 Q307 List of members of Anand CGHS D-5/1, 453 Tej Bhan, President of Anand CGHS. 6 Q308 List of members of Anand CGHS D-5/1, 453 Ved Pal, Vice President of Anand CGHS. 7 Q310 List of members of Anand CGHS D-5/1, 455 Tej Bhan, President of Anand CGHS. 8 Q311 List of members of Anand CGHS D-5/1, 455 Ved Pal, Vice President of Anand CGHS. 9 Q313 List of members of Anand CGHS D-5/1, 457 Tej Bhan, President of Anand CGHS. 10 Q314 List of members of Anand CGHS D-5/1, 457 Ved Pal, Vice President of Anand CGHS. 11 Q316 List of members of Anand CGHS D-5/1, 459 Tej Bhan, President of Anand CGHS. 12 Q317 List of members of Anand CGHS D-5/1, 459 Ved Pal, Vice President of Anand CGHS. 13 Q319 List of members of Anand CGHS D-5/1, 461 Tej Bhan, President of Anand CGHS. 14 Q320 List of members of Anand CGHS D-5/1, 461 Ved Pal, Vice President of Anand CGHS. 15 Q332 Affidavit of Tej Bhan D-5/1, 517 Tej Bhan.
Ex. PW7/C4 16 Q333 Affidavit of Tej Bhan D-5/1, 517 Tej Bhan.
Ex. PW7/C4 17 Q348 List of promoter members D-5/1, 1049 (back) Tej Bhan. 18 Q365 Balance-sheet as on 31.03.03 of D-22, 2717 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
19 Q367 Balance-sheet as on 31.03.03 of D-22, 2717 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
20 Q368 Receipt & payment A/c for the D-22, 2719 Tej Bhan, President of Anand CGHS.
period ending 31.03.03 of Anand Part of Ex. PW29/B
CGHS.
21 Q370 Receipt & payment A/c for the D-22, 2719 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.03 of Anand Part of Ex. PW29/B
CGHS.
22 Q371 Certificate of cash-in-hand of Anand D-22, 2721 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
22 Q381 Balance-sheet as on 31.03.02 of D-22, 2741 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
23 Q383 Balance-sheet as on 31.03.02 of D-22, 2741 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
24 Q384 Receipt & payment A/c for the D-22, 2743 Tej Bhan, President of Anand CGHS.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 30 of 90
period ending 31.03.02 of Anand Part of Ex. PW29/B
CGHS.
25 Q386 Receipt & payment A/c for the D-22, 2743 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.02 of Anand Part of Ex. PW29/B
CGHS.
26 Q387 Certificate of cash-in-hand of Anand D-22, 2745 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
27 Q389 Balance-sheet as on 31.03.01 of D-22, 2749 Tej Bhan, President of Anand CGHS.
Anand CGHS
28 Q391 Balance-sheet as on 31.03.01 of D-22, 2749 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
29 Q392 Receipt & payment A/c for the D-22, 2751 Tej Bhan, President of Anand CGHS.
period ending 31.03.01 of Anand Part of Ex. PW29/B
CGHS.
30 Q294 Receipt & payment A/c for the D-22, 2751 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.01 of Anand Part of Ex. PW29/B
CGHS.
31 Q395 Certificate of cash-in-hand of Anand D-22, 2753 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
32 Q397 Balance-sheet as on 31.03.00 of D-22, 2757 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
33 Q399 Balance-sheet as on 31.03.00 of D-22, 2757 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
34 Q400 Receipt & payment A/c for the D-22, 2759 Tej Bhan, President of Anand CGHS.
period ending 31.03.00 of Anand Part of Ex. PW29/B
CGHS.
35 Q402 Receipt & payment A/c for the D-22, 2759 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.00 of Anand Part of Ex. PW29/B
CGHS.
36 Q403 Certificate of cash-in-hand of Anand D-22, 2761 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
37 Q405 Balance-sheet as on 31.03.99 of D-22, 2765 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
38 Q407 Balance-sheet as on 31.03.99 of D-22, 2765 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
39 Q408 Receipt & payment A/c for the D-22, 2767 Tej Bhan, President of Anand CGHS.
period ending 31.03.99 of Anand Part of Ex. PW29/B
CGHS.
40 Q410 Receipt & payment A/c for the D-22, 2767 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.99 of Anand Part of Ex. PW29/B
CGHS.
41 Q411 Certificate of cash-in-hand of Anand D-22, 2769 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
42 Q413 Balance-sheet as on 31.03.98 of D-22, 2773 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
43 Q415 Balance-sheet as on 31.03.98 of D-22, 2773 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
44 Q416 Receipt & payment A/c for the D-22, 2775 Tej Bhan, President of Anand CGHS.
period ending 31.03.98 of Anand Part of Ex. PW29/B
CGHS.
45 Q418 Receipt & payment A/c for the D-22, 2775 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.98 of Anand Part of Ex. PW29/B
CGHS.
46 Q419 Certificate of cash-in-hand of Anand D-22, 2777 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 31 of 90
47 Q421 Balance-sheet as on 31.03.97 of D-22, 2781 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
48 Q423 Balance-sheet as on 31.03.97 of D-22, 2781 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
49 Q424 Receipt & payment A/c for the D-22, 2783 Tej Bhan, President of Anand CGHS.
period ending 31.03.97 of Anand Part of Ex. PW29/B
CGHS.
50 Q426 Receipt & payment A/c for the D-22, 2783 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.97 of Anand Part of Ex. PW29/B
CGHS.
51 Q427 Certificate of cash-in-hand of Anand D-22, 2785 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
52 Q429 Balance-sheet as on 31.03.96 of D-22, 2789 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
53 Q431 Balance-sheet as on 31.03.96 of D-22, 2789 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
54 Q432 Receipt & payment A/c for the D-22, 2791 Tej Bhan, President of Anand CGHS.
period ending 31.03.96 of Anand Part of Ex. PW29/B
CGHS.
55 Q434 Receipt & payment A/c for the D-22, 2791 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.96 of Anand Part of Ex. PW29/B
CGHS.
56 Q435 Certificate of cash-in-hand of Anand D-22, 2793 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
57 Q437 Balance-sheet as on 31.03.95 of D-22, 2797 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
58 Q439 Balance-sheet as on 31.03.95 of D-22, 2797 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
59 Q440 Receipt & payment A/c for the D-22, 2799 Tej Bhan, President of Anand CGHS.
period ending 31.03.95 of Anand Part of Ex. PW29/B
CGHS.
60 Q442 Receipt & payment A/c for the D-22, 2799 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.95 of Anand Part of Ex. PW29/B
CGHS.
61 Q443 Certificate of cash-in-hand of Anand D-22, 2801 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
62 Q445 Balance-sheet as on 31.03.94 of D-22, 2805 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
63 Q447 Balance-sheet as on 31.03.94 of D-22, 2805 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
64 Q448 Receipt & payment A/c for the D-22, 2807 Tej Bhan, President of Anand CGHS.
period ending 31.03.94 of Anand Part of Ex. PW29/B
CGHS.
65 Q450 Receipt & payment A/c for the D-22, 2807 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.94 of Anand Part of Ex. PW29/B
CGHS.
66 Q451 Certificate of cash-in-hand of Anand D-22, 2809 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
67 Q453 Balance-sheet as on 31.03.93 of D-22, 2813 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
68 Q455 Balance-sheet as on 31.03.93 of D-22, 2813 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
69 Q456 Receipt & payment A/c for the D-22, 2815 Tej Bhan, President of Anand CGHS.
period ending 31.03.93 of Anand Part of Ex. PW29/B
CGHS.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 32 of 90
70 Q458 Receipt & payment A/c for the D-22, 2815 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.93 of Anand Part of Ex. PW29/B
CGHS.
71 Q459 Certificate of cash-in-hand of Anand D-22, 2817 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
72 Q461 Balance-sheet as on 31.03.92 of D-22, 2821 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
73 Q463 Balance-sheet as on 31.03.92 of D-22, 2821 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
74 Q464 Receipt & payment A/c for the D-22, 2823 Tej Bhan, President of Anand CGHS.
period ending 31.03.92 of Anand Part of Ex. PW29/B
CGHS.
75 Q466 Receipt & payment A/c for the D-22, 2823 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.92 of Anand Part of Ex. PW29/B
CGHS.
76 Q467 Certificate of cash-in-hand of Anand D-22, 2825 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
77 Q469 Balance-sheet as on 31.03.91 of D-22, 2829 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
78 Q471 Balance-sheet as on 31.03.91 of D-22, 2829 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
79 Q472 Receipt & payment A/c for the D-22, 2831 Tej Bhan, President of Anand CGHS.
period ending 31.03.91 of Anand Part of Ex. PW29/B
CGHS.
80 Q474 Receipt & payment A/c for the D-22, 2831 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.91 of Anand Part of Ex. PW29/B
CGHS.
81 Q475 Certificate of cash-in-hand of Anand D-22, 2833 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
82 Q477 Balance-sheet as on 31.03.90 of D-22, 2837 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
83 Q479 Balance-sheet as on 31.03.90 of D-22, 2837 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
84 Q480 Receipt & payment A/c for the D-22, 2839 Tej Bhan, President of Anand CGHS.
period ending 31.03.90 of Anand Part of Ex. PW29/B
CGHS.
85 Q482 Receipt & payment A/c for the D-22, 2839 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.90 of Anand Part of Ex. PW29/B
CGHS.
86 Q483 Certificate of cash-in-hand of Anand D-22, 2841 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
87 Q485 Balance-sheet as on 31.03.89 of D-22, 2845 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
88 Q487 Balance-sheet as on 31.03.89 of D-22, 2845 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
89 Q488 Receipt & payment A/c for the D-22, 2847 Tej Bhan, President of Anand CGHS.
period ending 31.03.89 of Anand Part of Ex. PW29/B
CGHS.
90 Q490 Receipt & payment A/c for the D-22, 2847 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.89 of Anand Part of Ex. PW29/B
CGHS.
91 Q491 Certificate of cash-in-hand of Anand D-22, 2849 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
92 Q493 Balance-sheet as on 31.03.88 of D-22, 2853 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 33 of 90
93 Q495 Balance-sheet as on 31.03.88 of D-22, 2853 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
94 Q496 Receipt & payment A/c for the D-22, 2855 Tej Bhan, President of Anand CGHS.
period ending 31.03.88 of Anand Part of Ex. PW29/B
CGHS.
95 Q498 Receipt & payment A/c for the D-22, 2855 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.88 of Anand Part of Ex. PW29/B
CGHS.
96 Q499 Certificate of cash-in-hand of Anand D-22, 2857 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
97 Q501 Balance-sheet as on 31.03.87 of D-22, 2861 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
98 Q503 Balance-sheet as on 31.03.87 of D-22, 2861 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
99 Q504 Receipt & payment A/c for the D-22, 2863 Tej Bhan, President of Anand CGHS.
period ending 31.03.87 of Anand Part of Ex. PW29/B
CGHS.
100 Q506 Receipt & payment A/c for the D-22, 2863 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.87 of Anand Part of Ex. PW29/B
CGHS.
101 Q507 Certificate of cash-in-hand of Anand D-22, 2865 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
102 Q509 Balance-sheet as on 31.03.86 of D-22, 2869 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
103 Q511 Balance-sheet as on 31.03.86 of D-22, 2869 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
104 Q512 Receipt & payment A/c for the D-22, 2871 Tej Bhan, President of Anand CGHS.
period ending 31.03.86 of Anand Part of Ex. PW29/B
CGHS.
105 Q514 Receipt & payment A/c for the D-22, 2871 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.86 of Anand Part of Ex. PW29/B
CGHS.
106 Q515 Certificate of cash-in-hand of Anand D-22, 2873 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
107 Q517 Balance-sheet as on 31.03.85 of D-22, 2877 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
108 Q519 Balance-sheet as on 31.03.85 of D-22, 2877 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
109 Q520 Receipt & payment A/c for the D-22, 2879 Tej Bhan, President of Anand CGHS.
period ending 31.03.85 of Anand Part of Ex. PW29/B
CGHS.
110 Q522 Receipt & payment A/c for the D-22, 2879 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.85 of Anand Part of Ex. PW29/B
CGHS.
111 Q523 Certificate of cash-in-hand of Anand D-22, 2881 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
112 Q525 Balance-sheet as on 31.03.84 of D-22, 2885 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
113 Q527 Balance-sheet as on 31.03.84 of D-22, 2885 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
114 Q528 Receipt & payment A/c for the D-22, 2887 Tej Bhan, President of Anand CGHS.
period ending 31.03.84 of Anand Part of Ex. PW29/B
CGHS.
115 Q530 Receipt & payment A/c for the D-22, 2887 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.84 of Anand Part of Ex. PW29/B
CGHS.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 34 of 90
116 Q531 Certificate of cash-in-hand of Anand D-22, 2889 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
117 Q533 Balance-sheet as on 31.03.83 of D-22, 2893 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
118 Q535 Balance-sheet as on 31.03.83 of D-22, 2893 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
119 Q536 Receipt & payment A/c for the D-22, 2895 Tej Bhan, President of Anand CGHS.
period ending 31.03.83 of Anand Part of Ex. PW29/B
CGHS.
120 Q538 Receipt & payment A/c for the D-22, 2895 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.83 of Anand Part of Ex. PW29/B
CGHS.
121 Q539 Certificate of cash-in-hand of Anand D-22, 2897 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
123 Q541 Balance-sheet as on 31.03.82 of D-22, 2901 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
124 Q543 Balance-sheet as on 31.03.82 of D-22, 2901 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
125 Q544 Receipt & payment A/c for the D-22, 2903 Tej Bhan, President of Anand CGHS.
period ending 31.03.82 of Anand Part of Ex. PW29/B
CGHS.
126 Q546 Receipt & payment A/c for the D-22, 2903 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.82 of Anand Part of Ex. PW29/B
CGHS.
127 Q547 Certificate of cash-in-hand of Anand D-22, 2905 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
128 Q549 Balance-sheet as on 31.03.81 of D-22, 2909 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
129 Q551 Balance-sheet as on 31.03.81 of D-22, 2909 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
130 Q552 Receipt & payment A/c for the D-22, 2911 Tej Bhan, President of Anand CGHS.
period ending 31.03.81 of Anand Part of Ex. PW29/B
CGHS.
131 Q554 Receipt & payment A/c for the D-22, 2911 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.81 of Anand Part of Ex. PW29/B
CGHS.
132 Q555 Certificate of cash-in-hand of Anand D-22, 2913 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
133 Q557 Balance-sheet as on 31.03.80 of D-22, 2917 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
134 Q559 Balance-sheet as on 31.03.80 of D-22, 2917 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
135 Q560 Receipt & payment A/c for the D-22, 2919 Tej Bhan, President of Anand CGHS.
period ending 31.03.80 of Anand Part of Ex. PW29/B
CGHS.
136 Q563 Certificate of cash-in-hand of Anand D-22, 2921 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
137 Q565 Balance-sheet as on 31.03.79 of D-22, 2925 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
138 Q567 Balance-sheet as on 31.03.79 of D-22, 2925 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
139 Q568 Receipt & payment A/c for the D-22, 2927 Tej Bhan, President of Anand CGHS.
period ending 31.03.79 of Anand Part of Ex. PW29/B
CGHS.
140 Q570 Receipt & payment A/c for the D-22, 2927 Dharam Pal, Treasurer of Anand CGHS.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 35 of 90
period ending 31.03.79 of Anand Part of Ex. PW29/B
CGHS.
141 Q571 Certificate of cash-in-hand of Anand D-22, 2929 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
142 Q573 Balance-sheet as on 31.03.78 of D-22, 2933 Tej Bhan, President of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
143 Q575 Balance-sheet as on 31.03.78 of D-22, 2933 Dharam Pal, Treasurer of Anand CGHS.
Anand CGHS Part of Ex. PW29/B
144 Q576 Receipt & payment A/c for the D-22, 2935 Tej Bhan, President of Anand CGHS.
period ending 31.03.78 of Anand Part of Ex. PW29/B
CGHS.
145 Q578 Receipt & payment A/c for the D-22, 2935 Dharam Pal, Treasurer of Anand CGHS.
period ending 31.03.78 of Anand Part of Ex. PW29/B
CGHS.
146 Q579 Certificate of cash-in-hand of Anand D-22, 2937 Dharam Pal, Treasurer of Anand CGHS.
CGHS. Part of Ex. PW29/B
147 Q322 Affidavit of Ram Avtar D-5/1, 501 Ram Avtar, Secretary of Anand CGHS.
Ex. PW7/C1
148 Q323 Affidavit of Ram Avtar D-5/1, 501 Ram Avtar, Secretary of Anand CGHS.
Ex. PW7/C1
149 Q324 - Affidavit of Ram Avtar D-5/1, 503-513 Ram Avtar, Secretary of Anand CGHS.
Q329 Ex. PW7/C2
150 Q330 & Affidavit of Ram Avtar D-5/1, 515 Ram Avtar, Secretary of Anand CGHS.
Q331 Ex. PW7/C3
151 Q366 Balance-sheet as on 31.03.03 of D-22, 2717 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
152 Q369 Receipt & payment A/c for the D-22, 2719 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.03 of Anand Part of Ex. PW29/B
CGHS.
153 Q372 List of present Managing D-22, 2723 Ram Avtar, Secretary of Anand CGHS.
Committee of Anand CGHS. Part of Ex. PW29/B
154 Q373 List of present Managing D-22, 2725 Ram Avtar, Secretary of Anand CGHS.
Committee of Anand CGHS w.e.f. Part of Ex. PW29/B
1978-79 to 2002-2003.
155 Q374 List of Books of Accounts & D-22, 2727 Ram Avtar, Secretary of Anand CGHS.
Records Part of Ex. PW29/B
156 Q375 to List of members resigned during the D-22, 2729 to 2739 Ram Avtar, Secretary of Anand CGHS.
Q380 year 02-03 & list of members Part of Ex. PW29/B
enrolled during the year 02-03.
157 Q382 Balance-sheet as on 31.03.02 of D-22, 2741 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
158 Q385 Receipt & payment A/c for the D-22, 2743 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.02 of Anand Part of Ex. PW29/B
CGHS.
159 Q388 List of members resigned during the D-22, 2747 Ram Avtar, Secretary of Anand CGHS.
year 01-02 & list of members Part of Ex. PW29/B
enrolled during the year 01-02.
160 Q390 Balance-sheet as on 31.03.01 of D-22, 2749 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
161 Q393 Receipt & payment A/c for the D-22, 2751 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.01 of Anand Part of Ex. PW29/B
CGHS.
162 Q396 List of members resigned during the D-22, 2755 Ram Avtar, Secretary of Anand CGHS.
year 00-01 & list of members Part of Ex. PW29/B
enrolled during the year 00-01.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 36 of 90
163 Q398 Balance-sheet as on 31.03.00 of D-22, 2757 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
164 Q401 Receipt & payment A/c for the D-22, 2759 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.00 of Anand Part of Ex. PW29/B
CGHS.
165 Q404 List of members resigned during the D-22, 2763 Ram Avtar, Secretary of Anand CGHS.
year 99-00 & list of members Part of Ex. PW29/B
enrolled during the year 99-00.
166 Q406 Balance-sheet as on 31.03.99 of D-22, 2765 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
167 Q409 Receipt & payment A/c for the D-22, 2767 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.99 of Anand Part of Ex. PW29/B
CGHS.
168 Q412 List of members resigned during the D-22, 2771 Ram Avtar, Secretary of Anand CGHS.
year 98-99 & list of members Part of Ex. PW29/B
enrolled during the year 98-99.
169 Q414 Balance-sheet as on 31.03.98 of D-22, 2773 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
170 Q417 Receipt & payment A/c for the D-22, 2775 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.98 of Anand Part of Ex. PW29/B
CGHS.
171 Q420 List of members resigned during the D-22, 2779 Ram Avtar, Secretary of Anand CGHS.
year 97-98 & list of members Part of Ex. PW29/B
enrolled during the year 97-98.
172 Q422 Balance-sheet as on 31.03.97 of D-22, 2781 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
173 Q425 Receipt & payment A/c for the D-22, 2783 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.97 of Anand Part of Ex. PW29/B
CGHS.
174 Q428 List of members resigned during the D-22, 2787 Ram Avtar, Secretary of Anand CGHS.
year 96-97 & list of members Part of Ex. PW29/B
enrolled during the year 96-97.
175 Q430 Balance-sheet as on 31.03.96 of D-22, 2789 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
176 Q433 Receipt & payment A/c for the D-22, 2791 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.96 of Anand Part of Ex. PW29/B
CGHS.
177 Q436 List of members resigned during the D-22, 2795 Ram Avtar, Secretary of Anand CGHS.
year 95-96 & list of members Part of Ex. PW29/B
enrolled during the year 95-96.
178 Q438 Balance-sheet as on 31.03.95 of D-22, 2797 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
179 Q441 Receipt & payment A/c for the D-22, 2799 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.95 of Anand Part of Ex. PW29/B
CGHS.
180 Q444 List of members resigned during the D-22, 2803 Ram Avtar, Secretary of Anand CGHS.
year 94-95 & list of members Part of Ex. PW29/B
enrolled during the year 94-95.
181 Q446 Balance-sheet as on 31.03.94 of D-22, 2805 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
182 Q449 Receipt & payment A/c for the D-22, 2807 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.94 of Anand Part of Ex. PW29/B
CGHS.
183 Q452 List of members resigned during the D-22, 2811 Ram Avtar, Secretary of Anand CGHS.
year 93-94 & list of members Part of Ex. PW29/B
enrolled during the year 93-94.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 37 of 90
184 Q454 Balance-sheet as on 31.03.93 of D-22, 2813 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
185 Q457 Receipt & payment A/c for the D-22, 2815 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.93 of Anand Part of Ex. PW29/B
CGHS.
186 Q460 List of members resigned during the D-22, 2819 Ram Avtar, Secretary of Anand CGHS.
year 92-93 & list of members Part of Ex. PW29/B
enrolled during the year 92-93.
187 Q465 Receipt & payment A/c for the D-22, 2823 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.92 of Anand Part of Ex. PW29/B
CGHS.
188 Q468 List of members resigned during the D-22, 2827 Ram Avtar, Secretary of Anand CGHS.
year 91-92 & list of members Part of Ex. PW29/B
enrolled during the year 91-92.
189 Q470 Balance-sheet as on 31.03.91 of D-22, 2829 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
190 Q473 Receipt & payment A/c for the D-22, 2831 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.91 of Anand Part of Ex. PW29/B
CGHS.
191 Q476 List of members resigned during the D-22, 2835 Ram Avtar, Secretary of Anand CGHS.
year 90-91 & list of members Part of Ex. PW29/B
enrolled during the year 90-91.
192 Q478 Balance-sheet as on 31.03.90 of D-22, 2837 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
193 Q481 Receipt & payment A/c for the D-22, 2839 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.90 of Anand Part of Ex. PW29/B
CGHS.
194 Q484 List of members resigned during the D-22, 2843 Ram Avtar, Secretary of Anand CGHS.
year 89-90 & list of members Part of Ex. PW29/B
enrolled during the year 89-90.
195 Q486 Balance-sheet as on 31.03.89 of D-22, 2845 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
196 Q489 Receipt & payment A/c for the D-22, 2847 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.89 of Anand Part of Ex. PW29/B
CGHS.
197 Q492 List of members resigned during the D-22, 2851 Ram Avtar, Secretary of Anand CGHS.
year 88-89 & list of members Part of Ex. PW29/B
enrolled during the year 88-89.
198 Q494 Balance-sheet as on 31.03.88 of D-22, 2853 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
199 Q497 Receipt & payment A/c for the D-22, 2855 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.88 of Anand Part of Ex. PW29/B
CGHS.
200 Q500 List of members resigned during the D-22, 2859 Ram Avtar, Secretary of Anand CGHS.
year 87-88 & list of members Part of Ex. PW29/B
enrolled during the year 87-88.
201 Q502 Balance-sheet as on 31.03.87 of D-22, 2861 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
202 Q505 Receipt & payment A/c for the D-22, 2863 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.87 of Anand Part of Ex. PW29/B
CGHS.
203 Q508 List of members resigned during the D-22, 2867 Ram Avtar, Secretary of Anand CGHS.
year 86-87 & list of members Part of Ex. PW29/B
enrolled during the year 86-87.
204 Q510 Balance-sheet as on 31.03.86 of D-22, 2869 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 38 of 90
205 Q513 Receipt & payment A/c for the D-22, 2871 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.86 of Anand Part of Ex. PW29/B
CGHS.
206 Q516 List of members resigned during the D-22, 2875v Ram Avtar, Secretary of Anand CGHS.
year 85-86 & list of members
enrolled during the year 85-86.
207 Q518 Balance-sheet as on 31.03.85 of D-22, 2877 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
208 Q521 Receipt & payment A/c for the D-22, 2879 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.85 of Anand Part of Ex. PW29/B
CGHS.
209 Q524 List of members resigned during the D-22, 2883 Ram Avtar, Secretary of Anand CGHS.
year 84-85 & list of members Part of Ex. PW29/B
enrolled during the year 84-85.
210 Q526 Balance-sheet as on 31.03.84 of D-22, 2885 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
211 Q529 Receipt & payment A/c for the D-22, 2887 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.84 of Anand Part of Ex. PW29/B
CGHS.
213 Q532 List of members resigned during the D-22, 2891 Ram Avtar, Secretary of Anand CGHS.
year 83-84 & list of members Part of Ex. PW29/B
enrolled during the year 83-84.
214 Q534 Balance-sheet as on 31.03.83 of D-22, 2893 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
215 Q537 Receipt & payment A/c for the D-22, 2895 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.83 of Anand Part of Ex. PW29/B
CGHS.
216 Q540 List of members resigned during the D-22, 2899 Ram Avtar, Secretary of Anand CGHS.
year 82-83 & list of members Part of Ex. PW29/B
enrolled during the year 82-83.
217 Q542 Balance-sheet as on 31.03.82 of D-22, 2901 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
218 Q545 Receipt & payment A/c for the D-22, 2903 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.82 of Anand Part of Ex. PW29/B
CGHS.
219 Q548 List of members resigned during the D-22, 2907 Ram Avtar, Secretary of Anand CGHS.
year 81-82 & list of members Part of Ex. PW29/B
enrolled during the year 81-82.
220 Q550 Balance-sheet as on 31.03.81 of D-22, 2909 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
221 Q553 Receipt & payment A/c for the D-22, 2911 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.81 of Anand Part of Ex. PW29/B
CGHS.
222 Q556 List of members resigned during the D-22, 2915 Ram Avtar, Secretary of Anand CGHS.
year 80-81 & list of members Part of Ex. PW29/B
enrolled during the year 80-81.
223 Q558 Balance-sheet as on 31.03.80 of D-22, 2917 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
224 Q561 Receipt & payment A/c for the D-22, 2919 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.80 of Anand Part of Ex. PW29/B
CGHS.
225 Q564 List of members resigned during the D-22, 2923 Ram Avtar, Secretary of Anand CGHS.
year 79-80 & list of members Part of Ex. PW29/B
enrolled during the year 79-80.
226 Q566 Balance-sheet as on 31.03.79 of D-22, 2925 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
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227 Q569 Receipt & payment A/c for the D-22, 2927 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.79 of Anand Part of Ex. PW29/B
CGHS.
228 Q572 List of members resigned during the D-22, 2931 Ram Avtar, Secretary of Anand CGHS.
year 78-79 & list of members Part of Ex. PW29/B
enrolled during the year 78-79.
229 Q574 Balance-sheet as on 31.03.78 of D-22, 2933 Ram Avtar, Secretary of Anand CGHS.
Anand CGHS. Part of Ex. PW29/B
230 Q577 Receipt & payment A/c for the D-22, 2935 Ram Avtar, Secretary of Anand CGHS.
period ending 31.03.78 of Anand Part of Ex. PW29/B
CGHS.
231 Q580 List of members resigned during the D-22, 2939 Ram Avtar, Secretary of Anand CGHS.
year 77-78 & list of members Part of Ex. PW29/B
enrolled during the year 77-78.
232 Q581 List of members as on 30.06.1978. D-22, 2941 Ram Avtar, Secretary of Anand CGHS.
Part of Ex. PW29/B
233 Q582 List of members as on 30.06.1978. D-22, 2943 Ram Avtar, Secretary of Anand CGHS.
Part of Ex. PW29/B
234 Q583 List of members as on 30.06.1978. D-22, 2945 Ram Avtar, Secretary of Anand CGHS.
Part of Ex. PW29/B
235 Q584 List of members as on 30.06.1978. D-22, 2947 Ram Avtar, Secretary of Anand CGHS.
Part of Ex. PW29/B
236 Q585 List of members as on 30.06.1978. D-22, 2949 Ram Avtar, Secretary of Anand CGHS.
Part of Ex. PW29/B
237 Q586 List of Managing Committee D-22, 291 Ram Avtar, Secretary of Anand CGHS.
members as on 36.06.1978. Part of Ex. PW29/B
238 Q587/A Option-cum-appointment letter for D-22, 2703 Ram Avtar, Secretary of Anand CGHS.
conducting statutory audit for Ex. PW29/A
2002-2003/concurrent audit for
2003-2004 including pending audit
(not prior to 1999-2000).
6.39 Aforesaid reports of Sh. Joshi would definitely indicate that it was
A-5 Sh. Gokul Chand Aggarwal who had been writing and signing as Tej Bhan, Ram Avtar and Dharam Pal. Undoubtedly, letter dated 14.10.2003 was also allegedly bearing signatures of accused Gokul Chand Aggarwal wherein he signed as Ram Avtar at point Q347 but unfortunately for the prosecution, there is no definite positive opinion with respect to said signatures at Q347. Though on various other documents, as per said reports of Sh. Joshi, it was A-5 Gokul Chand Aggarwal who had signed as Ram Avtar, Tej Bhan and Dharam Pal. One such crucial document is Ex. PW29/A. It is a form which had been filled for the purposes of appointing auditor and as per deposition of PW29 Jatinder Singh Sharma, who was posted as A.R. (Audit) in the RCS office, such appointment-
cum-option letter dated 10.03.2004 bearing serial No.2757 was put up before CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 40 of 90 him for conducting audit of Anand CGHS and after obtaining approval of RCS, he (PW29 Jatinder Singh Sharma) appointed Sh. P.K. Thirwani, Senior Auditor to conduct the pending audit of the society vide order dated 12.03.2004. Such appointment letter has been exhibited as Ex. PW29/A and signatures of PW20 Sh. Jatinder Singh Sharma are at point A. He also identified signatures of P.K. Thirwani at point B and also of official of the society at point C. Such signatures at point C i.e. Q587A are of the person who signed on behalf of Anand CGHS as Ram Avtar and as per the report of Sh. M.C. Joshi, these signatures were of A-5 Gokul Chand Aggarwal. Importantly, there is no cross-examination by A-5 Gokul Chand Aggarwal as no question was put to PW20 Sh. Jatinder Singh Sharma in this regard i.e. regarding signatures of concerned official of Anand CGHS at point Q587A.
6.40 Sh. S.P. Mehta has contended that since CBI did not obtain a favourable opinion from GEQD, it entered into another exercise and again obtained specimen handwriting/ signatures of A-5 and sent the same to GEQD and then GEQD obliged CBI by giving a favourable opinion.
6.41 I have seen the record very carefully. It becomes apparent that specimen handwriting of A-5 was initially taken on 24.01.2006 and the concerned questioned documents and specimen sheets were sent to CFSL, Chandigarh for expert opinion and GEQD gave his first report on 25.08.2006. Such first report has been proved as Ex. PW35/E. Thereafter, IO inspector Manjeet Singh obtained another specimen handwriting and signatures of A-5. These were obtained on 25.10.2006 and are contained in sheets S-171 to S-190 which have been collectively exhibited as Ex. PW35/C. These were taken when the accused was on bail and the second opinion given by same set of experts is of 29.10.2007 which has been proved as Ex. PW35/G. 6.42 Merely because specimen handwriting of A-5 had been obtained twice, it would not tantamount to hold that the second report of expert was CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 41 of 90 procured one or manipulated. There are still some documents on which there is no positive opinion.
6.43 It is also important to mention that cross-examination of GEQD also indicates that investigating agency had obtained another specimen handwriting of A-5 G.C. Aggarwal on the basis of request made by GEQD only. He was put a specific question in this regard by the defence itself and the question and corresponding answer are as under:
Q You have stated that you demanded more specimen writings reading Ram Avtar of Gokul Chand Aggarwal from CBI, I put it to you that what was your interest in demanding the same and in how many other cases you asked for the same?
A I was not having any other interest in asking further specimen writings of G.C. Aggarwal except the fact that on comparison of earlier specimen writing mark S-64 to S-78 with the relevant questioned items reading Ram Avtar some similarities were observed but some features along with simplifications were not being accounted for due to which further specimen writing G.C. Aggarwal reading as Ram Avtar were requested.
6.44 Thus there cannot be said to be any impropriety in obtaining specimen second time.
6.45 PW35 Sh. M.C. Joshi, GEQD was asked numerous questions. I have seen questions and corresponding answers put to him and his evidence remains unshaken, fully believable and reliable. He was asked as to what precautions were to be taken for taking specimen handwritings. He claimed that he could not comment because that was the job of the concerned investigating officer. He, however, supplemented that any expert generally and invariably wants to ascertain the commonality of the writing characteristic between the two sets. He also deposed that sufficient handwritings had been supplied to him for CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 42 of 90 comparison. He also deposed that specimen handwritings were found freely written with continuity, speed and freedom. He also deposed that he did not observe any material dissimilarity characteristics between questioned and specimen writing. It would be also important to mention that expert had labelled the writer of specimen writing as a 'versatile' writer and, therefore, a specific question in this regard was put to him. It will be worthwhile to extract such question and corresponding answer:
Q The opinion "that the writer of specimen writing is a versatile writer who has got more than one form of character at his command and can switch over at will from one design of letter to the other design etc." is contrary to the Handwriting Principles (i. e. 'the handwriting of every mature writer is personal and individual to him, two different persons cannot write in similar style, a writer cannot exceed his writing skill and ability, a person cannot adopt different styles of writings at different times as to change one's normal style of writing is an exceedingly difficult task, handwriting does not exclusively depends upon the physical movement of the hand or the writing instrument used)?
A It is correct that a person cannot exceed from the skill of the writing what he possesses but authorities do say that some improvement over that is possible with sufficient exercise and practice. In this case, I have written the word "versatile writer" to prove the point that he writes few characters varying in form but the same were duly accounted for from his specimen writings.
6.46 All in all, his examination clearly indicates that he noted various features which confirmed that all such questioned writings and specimen writings were written by one and the same person and the minor variations noted were mere natural variations.
6.47 There is nothing to show that Sh. Joshi did not apply proper procedure for comparison purpose. Opinion of expert is a relevant fact as per Section 45 of Indian Evidence Act.CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 43 of 90
6.48 Thus, though Sh. Joshi has been grilled exhaustively yet fact remains that defence could not show any infirmity either in the report or in the deposition of expert. Expert has come out unscathed despite such comprehensive cross-examination. In Murari Lal vs. State Of Madhya Pradesh 1980 AIR 531SC, it has been laid down that there is no rule of law that opinion evidence of a hand-writing expert must never be acted upon unless substantially corroborated. Here, the court has, even otherwise, corroboration from neutral corner. An expert opinion is required to be tested by the acceptability of the reasons given by him. An expert only deposes and not decides. Here. GEQD has withstood the test of cross-examination and has furnished the court with the necessary scientific criteria for testing the accuracy of his conclusion. I have also myself evaluated such reasoning in the backdrop of questioned and specimen handwritings and the opinion given by Sh. Joshi cannot be faulted with.
6.49 A-5 Gokul Chand Aggarwal has not bothered to explain as to how his signatures are appearing on the aforesaid questioned places. He has not bothered to explain as to why he had been going to the office of RCS. His keeping mum on this aspect and offering no explanation clearly indicates his complicity and it becomes abundantly clear that it was he who had been representing Anand CGHS. It becomes perceptible that he had been interacting with RCS officials on behalf of Anand CGHS. It was he who had produced various documents related to Anand CGHS.
6.50 It will also now be important to make a reference towards various affidavits furnished by the alleged members of Anand CGHS. It is very much apparent from the notings contained in D5/1, which have been proved as Ex.
PW33/A collectively, that the Secretary of the society had filed an affidavit in respect of enrollment of the members along with the final list of 201 members. Comprehensive noting dated 27.02.2004 prepared by A-4 Faiz Mohammad and thereafter approved by A-1 Yogi Raj clearly indicates that the individual affidavits of all such 201 members had also been submitted by the society. All such CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 44 of 90 affidavits were at page No.1-C to 201-C of the relevant file. All these affidavits have been proved as Ex. PW7/B1 to PW7/B198, Ex. PW3/B, Ex. PW4/B and Ex. PW5/B. These affidavits are purportedly and ostensibly given by members of Anand CGHS wherein they all have undertaken that they were not members of any other Group Housing Cooperative Society in Union Territory of Delhi and they also did not own any lease hold or free hold plot or house in Union Territory of Delhi either in their names or in the names of their spouse or dependents including unmarried children.
6.51 All such affidavits were purportedly purchased on two different dates i.e. 30.01.2004 and 21.02.2004 and non judicial stamp papers of Rs. 10/- each had been sold by one Sh. Satvir, stamp agent having licence No. 489 who was designated stamp agent for Janakpuri area and affidavits, typed on such stamp papers, were attested by one Sh. Arun Kumar Gupta who was Notary Public approved by Government of India vide registration No. 741/97.
6.52 Let me now see as to what such stamp vendor has to offer.
6.53 PW8 Sh. Satvir has deposed that he was designated stamp agent for Janakpuri area in the year 2004. He was shown all such 201 affidavits Ex. PW7/B1 to PW7/B198 as well as Ex. PW3/B, Ex. PW4/B and Ex. PW5/B and he noticed the rubber stamp appearing on the reverse of all said affidavits and admitted that all these stamp papers had been purchased from him. He deposed that he had sold the same and also made entry in this regard in his register. Such entries have been proved by him as Ex. PW8/A (D-12). He claimed that the person who had purchased said stamp papers from him claimed himself to be a property dealer and he had given a list for purchasing the stamp papers in bulk and he told his name as Gokul. He also deposed that he could not identify him correctly but that Gokul looked like one of the two accused present in court and then he indicated towards accused Gokul Chand Aggarwal and also towards accused N. Diwakar. He, however, claimed that said person CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 45 of 90 was a man having thin built. This shows that he is focusing more on A-5. Curiously there is no cross examination on this aspect either on behalf of accused Gokul Chand Aggarwal or on behalf of accused N. Diwakar. This clearly indicates that these stamp papers had been purchased by one Gokul. In view of unrebutted evidence of PW8 Sh. Satvir and keeping in mind the various other facts and circumstances of the case already discussed herein above, such Gokul can be none other than the accused Gokul Chand Aggarwal facing trial at the moment.
6.54 Evidence of identification of an accused in the court by a witness is substantive evidence whereas that of identification in test identification parade is not substantive one and the same can be used only to corroborate identification of accused by a witness in court. Failure to hold test identification parade does not make the evidence of identification in court inadmissible but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction unless it is corroborated by any other evidence. In exceptional circumstances, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence can also form the basis of conviction. The effect of not holding a prior test identification parade has been examined in considerable detail by a three-Judge Bench in MALKHANSINGH AND OTHERS V. STATE OF MADHYA PRADESH, 2003 (5) JT (SC) 323. Reference be also made to of DANA YADAV @ DAHU V. STATE OF BIHAR 2002 A.I.R. (SC) 3325.
6.55 In the present case though ideally, CBI should have taken requisite steps to hold TIP and should have got A-5 G.C. Aggarwal identified from the concerned stamp vendor and also from the concerned RCS official but the omission on this score does not go to the root of the matter particularly in view of the other corroborating incriminating evidence.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 46 of 906.56 Besides aforesaid affidavits, PW8 Satvir had also sold non judicial stamp papers Ex. PW7/C-1 to PW7/C-4. Ex. PW7/C-1 and C-3 are the affidavits purportedly signed by Sh. Ram Avtar and his signatures are at point Q322 to Q331. Fourth affidavit Ex. PW7/C-4 is purportedly an affidavit filed by Tej Bhan (President of Anand CGHS) having purported signatures of Tej Bhan at point Q332 to Q333 and I have already discussed above that all such signatures have been found to be of none other than Ram Avtar. Thus the testimony of PW8 Satvir also nails down A-5 Gokul Chand Aggarwal.
6.57 These affidavits were found to be forged and fabricated.
6.58 Testimony of PW7 Sh. Gaurav Gupta clearly indicates the same.
6.59 Sh. Arun Kumar Gupta, advocate was Notary Public who expired way back on 15.01.2002. His death certificate has been proved as Ex. PW7/A. Since he had already died, there was no question of his attesting any such affidavit in February 2004.
6.60 PW7 Gaurav Gupta was shown all such affidavits and he claimed that all these affidavits were not bearing signatures or initials of his father. He thus out-rightly denied and disowned signatures of his father at point X on all such affidavits. Merely, because the seal of his father had been appearing would not take defence contention anywhere as the unrebutted testimony of PW7 Gaurav Gupta clearly go on to show that all these affidavits were forged and fabricated as these were shown to have been attested by the Notary Public Sh. Arun Kumar Gupta on 23.02.2004 whereas Sh. Arun Kumar Gupta had died on 15.01.2002. Testimony of PW6 Sh. O. Vekateshwarlu also indicates that Sh. Arun Kumar Gupta had been appointed as Notary Public and he had expired on 15.01.2002.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 47 of 906.61 A-5 Gokul Chand Aggarwal had been representing Anand CGHS and it can be safely inferred that he was the one who had obtained all these non judicial stamp papers and then fabricated the affidavits and submitted the same in the office of RCS in order to cheat and in order to obtain land illegally and dishonestly. He was not authorized by the actual society and he took advantage of the fact that such society was completely inactive and lying dormant. He, therefore, prepared false documents and projected himself as the authorized representative of such society. Bogus minutes of meeting were prepared and application for revival of society was moved praying for cancellation of winding up order.
6.62 I would also like to mention here that PW3 Sh. Amrit Lal Walia, PW4 Sh. Ashok Kumar Walia and PW5 Sh. Satya Pal have also out rightly denied having signed any such affidavit as member of Anand CGHS. They all were shown their respective affidavits and they all denied having signed any such affidavit on 23.02.2004. They all claimed that their name, parentage and address were correctly mentioned in the affidavits but they never signed such respective affidavits nor put any signatures as deponent on such affidavits. They all also claimed that they have never gone or appeared before Sh. Arun Kumar Gupta, Notary Public for the purposes of attestation.
6.63 Besides the testimony of the concerned witnesses discussed above, reference be also made to testimony of various other witnesses. PW17 Sh. K.L. Bhatia has deposed that after 1988-89, Anand CGHS did not take any interest or step in the affairs of the society or its revival. He was also shown the affidavits purportedly signed by Sh. Sardar Singh, Sh. Mohan Singh and Sh. Kikar Singh and he categorically claimed that all these were bearing forged signatures. He deposed that he knew all of them as they had been associated with him in the affairs of the society and he had seen them writing and signing and, therefore, he was conversant with their signatures also.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 48 of 906.64 Similarly, PW12 Sh. Jagmohan Lal admitted that he had become member and one Mr. Bhatia was the office bearer of such society but he also denied his signatures on affidavit Ex. PW7/B116 (page 117-C of D-6). So much so, he also denied his signatures on application form dated 05.04.1974 (Ex. PW12/A). PW18 Sh. Suresh Kumar has also deposed that his father had become member of Anand CGHS and he claimed that his father used to sign in Urdu and he never knew Hindi. He was also shown affidavit Ex. PW7/B112 and he claimed that it was not bearing signatures of his father who always used to sign in Urdu. Such affidavit was apparently forged as even otherwise the affidavit was purportedly executed on 23.02.2004 but the deponent i.e. Sh. Jamman Lal (father of PW18 Suresh Kumar) died way back in 1994. Similarly, another actual member PW19 Sh. Girdhari Lal had also denied his signatures on affidavit Ex. PW7/B120. He has also, in the similar manner, denied his signatures even on the application form Ex. PW19/A (page 374-C of D-6). Similarly, PW21 Sh. Mohan Lal Gulati also knew the founder members Sh. R.L. Dang and Sh. K.L. Bhatia and he admitted that he became member of Anand CGHS but he denied participating in meeting and he also disowned his signatures on affidavit Ex. PW7/B105. To the same effect is the testimony of PW22 Sh. Shashi Kant Chawla who had denied his signatures on affidavit Ex. PW7/B139 and also on membership form Ex. PW22/A (D-6 page 395-C). One Sh. Surender Kumar Kapil was also member of such society and he died on 24.01.1993. His death certificate has been proved as Ex. PW23/A and, thus, there was no occasion for his signing any affidavit in 2004.
6.65 One Sh. Sardar Singh was also a founder member of Anand CGHS. However, when he was tried to be contacted during investigation, it was learnt that he had already died. Statement of his son Jagdeep was recorded u/s 161 Cr. P.C. However, during trial, even Sh. Jagdeep expired before his deposition could be recorded in the court.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 49 of 906.66 The society was having its office at Shop No.1, Krishna Market, Kalkaji, Delhi and nobody knows as to how the address of society was, all of a sudden, changed to 21, Siras Pur, Delhi-42. No actual member has said a thing in this regard either. Naturally, if such address is changed, the intimation is required to be sent to RCS office. There is, however, no such intimation. Such fact was merely recorded in bogus minutes of June 2003.
6.67 Such address was even otherwise found to be fake. Such property of 21, Siras Pur, Delhi was owned by one Sh. Nar Singh. During investigation, he categorically claimed that no society was ever run from his said premises of 21, Siras Pur. He also claimed that no person with the name of Ram Avtar and Tej Bhan ever resided in his such house as tenant. Unfortunately, even he died during the trial before the court could record his deposition. However, reference be made to the testimony of PW15 Sh. Kanwar Singh who was posted as Postman during the relevant period and used to distribute dak for Beat No. 5, Siras Pur. He was shown registered envelope Ex. PW15/A (D-39). Such registered letter was dispatched by CBI and was addressed to the President/Secretary, Anand CGHS Ltd., 21 Siras Pur, Delhi-42 and such registered letter returned unexecuted. PW15 Sh. Kanwar Singh had been entrusted with the task of serving such registered letter and despite his repeated visits, he could not find any such addressee at said house. He deposed that he contacted the landlord of the house who told that there was no firm or society with that name at that address. In his examination-in-chief, he nowhere revealed the name of landlord but in his cross-examination, Sh. Kanwar Singh categorically revealed the name of the landlord as Nar Singh. I do not find any reason to disbelieve the testimony of PW15 Kanwar Singh.
6.68 I have also seen the testimony of various other Postmen i.e. PW9 Sh. Manoj Kumar, PW10 Sh. Mahipal Singh, PW13 Sh. Harbir Singh, PW14 Sh. Deen Dayal and PW16 Sh. Satish Chandra and they all were also unable to deliver the registered letters on the respective addressees. Testimony of PW13 CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 50 of 90 Harbir Singh also indicates that no one with the name of Ram Avtar was residing at house No. 1898/18, Govind Puri Extension, Kalkaji.
6.69 It has also been argued from the side of defence that the deposition of postmen has no real credibility or sanctity. I am, however, not impressed with such contention. Any such postman is also a public servant and there is a presumption u/s 114 of Indian Evidence Act that an official act has been performed regularly. Undoubtedly, it would have been better if investigating agency had also recorded statements of the neighbours and adjacent residents in order to fully demonstrate that the addresses were fake and that no such person/member had been residing at the given addresses. Still keeping in mind the material placed before the court, it cannot be said that the reports given by the concerned postmen are liable to be discarded. It cannot be said that merely because the envelopes had been dispatched by CBI, the postmen would give a false report or that they would give reports as per the whims and fancies of CBI.
6.70 Thus the testimony led by prosecution and the various documents proved during the trial clearly indicate that there was never any genuine, authorized and lawful attempt for revival of society or for cancellation of winding up order after 1988. Anand CGHS was never active after 1988-89. Its members have categorically claimed that they never attended any meeting after 1988. Minutes of meeting dated 29.06.2003 are found to be forged as exposed by PW24 Sh. Maan Singh. There was never any audit or election for all these 15 years and all of a sudden, an application is received purportedly on behalf of Anand CGHS for revival of society and cancellation of winding up order.
6.71 My foregoing discussion also indicate that it was A-5 Gokul Chand Aggarwal who had been appearing in the office of RCS and before the office of Assistant Registrar (North West) in connection with the unauthorized, illegal and dishonest revival of such society. It cannot be said to be a case of mere preparation. Number of documents were forged and were presented in the office CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 51 of 90 and so much so, after the alleged order of revival, a freeze list was also sent to Assistant Registrar (Policy) on 11.03.2004 with request to forward the same to DDA for allotment of land. However, the illegal activities came to light before any land could be allotted and it is only in that perspective that the case is being projected as a case of attempted cheating. Otherwise, for all practical purposes, the cheating was complete.
6.72 PW20 Sh. Virender Kumar Bansal also remained posted in RCS and he deposed about the procedure related to DCS Act & Rules made thereunder. He also handed over various documents to CBI. He had handed over files related to various societies including Anand CGHS. His seizure memos have been proved as Ex. PW20/A and Ex. PW20/B. It will be useful to make mention about one file handed over by PW20 Sh. V.K. Bansal to IO Manjeet Singh. Such file is D-32 and has been proved as Ex. PW36/M and this file, inter alia contains 43 undelivered letters. These letters had been sent by the office of RCS regarding re-verification of membership and were dispatched on 30.12.2004. These undelivered letters also corroborate that the record furnished was false and fabricated and the addresses of its alleged members were wrong.
6.73 It cannot be said that A-5 G.C. Aggarwal has been unnecessarily involved. My foregoing discussion clearly indicates his complicity. There is no merit in the defence contention that there was no cheating as there is no complainant who might have claimed before the Court that there was any false inducement. Sh. S.P. Mehta, learned defence counsel has contended that there is no wrongful loss to anyone and there is no corresponding wrongful gain to anyone and, therefore, crucial ingredients of cheating are completely missing. He has also speculated that the loss could have been either DDA or to the RCS and there is no such evidence on record.
6.74 To me, in such type of complicated and tricky matters, there may not always be a complainant, in body and soul, before the Court in stricto sensu.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 52 of 90Apparent objective of the conspiracy was to grab the land. It becomes very much palpable that for all practical purposes, the real aggrieved person would be the next eligible society which would have been allotted the land, otherwise. Therefore, there is attempt to cause wrongful loss to such eligible society and there is an attempt to have wrongful gain by A-5 purportedly representing a society which was defunct and not eligible at all.
EVALUATION OF ROLE OF PUBIC SERVANTS 7.0 Let me now see the role of RCS officials.
7.1 Surprisingly, during the course of arguments, they all have tried to exculpate themselves and have passed on the buck upon their co-accused. They have evidently indulged into a blame game. Dealing Assistant has claimed that he had merely put up the papers and was not concerned with the revival. He has also claimed that note was rather prepared by Assistant Registrar whereas Assistant Registrar wants to assert that he, believing the noting prepared by Dealing Assistant, had merely forwarded the file to the court of RCS. RCS has contended that in view of the scrutiny and verification reports placed before him, he had no option but to pass the order of cancellation of winding up of the Anand CGHS.
7.2 Let me see the relevant notings all over again.
7.3 These notings are very important and vital and court can always draw logical and natural inferences from such notings. I am fortified in this regard by the judgment delivered by our own High Court in the case of Runu Ghosh Vs. CBI Criminal Appeal 482 of 2002 decided on 21.12.2011.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 53 of 907.4 Notings have been collectively exhibited as Ex. PW33/A and it has already been observed in the foregoing discussion that all the concerned public servants-accused do not dispute these notings and their respective signatures appearing thereon.
7.5 The first such noting is of 19.11.2003 and is at page 6/N (internal page). This noting has been prepared by A-4 Faiz Mohammad. In his statement u/s 313 (5) Cr.P.C., A-4 has not disputed his notings dated 19.11.2003, 08.12.2003, 29.12.2003 and 26.02.2004. He also admits his signatures. However, according to him, he had signed the same during his routine office work and the verification aspect was undertaken by his superior i.e. Sh. Yogi Raj, Assistant Registrar. According to him, he had not violated any provision of DCS Act or Rules made thereunder and he cannot be held responsible for the revival of Anand CGHS. He also claims that he was posted as Inspector in RCS office and he had, even otherwise, never dealt with the case of revival of society and was not even computer savvy and the noting in question, though signed by him, was in fact got typed by A-1 Sh. Yogi Raj. He also claimed that RCS officials have been duped by A-5 Gokul Chand Aggarwal who posed as Ram Avtar, Secretary of society. According to him, he had no knowledge about commission of any offence and as Dealing Assistant he had no means to evaluate the genuineness of the documents submitted by the society. He was only required to put the papers before his superiors and moreover, there was no norms specifying and elaborating his duties. It has also been argued from his side that there was no evidence of criminal conspiracy.
7.6 Dealing Assistant cannot be permitted to shift the blame on to his superiors. As Dealing Assistant, it was rather his primary job to find out the previous record pertaining to such society and then to put up an appropriate note. He very well knew that such society had not sent any correspondence whatsoever after 1988. Earlier, admittedly Anand CGHS through its genuine office bearers had prayed for revival which request was closed in September, CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 54 of 90 1989. Dealing Assistant should have got skeptical when such society had approached RCS after a gap of around 14-15 years. He, however, was least concerned in this regard. In his note dated 19.11.2003, A-4 Faiz Mohammad also claimed that the society had been liquidated vide order dated 29.09.1986. He did not even bother to cross check such fact and I have already observed above that such particulars and date regarding liquidation order were found to be wrong and incorrect. Naturally, there would have been some record in the office of RCS with respect to winding up and liquidation. As a Dealing Assistant, A-4 Faiz Mohammad was required to collect entire such record either from his own office or from the office of concerned liquidator or from DDA. He did not take any step in that direction and rather believed the version of applicant as gospel truth. So much so, he did not even ask for the identity proof of the applicant. It was very much required as the society had approached RCS office after 14-15 years. Moreover, the winding up order had earlier been passed as the society was not even found willing to take the land which had been allotted by DDA not once but twice. The reason given in the revival application was altogether different. In such notings, A-4 also mechanically confirmed that the date of liquidation order was 29.09.1986. The society had claimed vide its letter dated 14.10.2003 (which is evidently false and fabricated) that the elections had been conducted in June, 2003 and all the short comings had been removed. However, he did not try to seek the entire record regarding meetings, audit, election which might have been held during the intervening period of 14-15 years. He proposed that Ram Nath may be appointed as inspecting officer to verify and examine the record of the society which proposal was eventually approved by A-7 N. Diwakar on 21.11.2003.
7.7 There is needless quickness on the part of RCS officials. The application in question was dated 14.10.2003 which was diarized in the record in the record of AR (North West) on 17.10.2003. Inspection was approved on 21.11.2003. There is a general conception in the minds of the public that the government departments work very slow and at a snail pace but the present CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 55 of 90 case, in a direct contrast, indicates that a government department was working with extra ordinary alacrity and swiftness of a rabbit. Moreover haste was shown for a society who was otherwise in a deep slumber.
7.8 Now comes the role of A-3 Ram Nath.
7.9 He goes to the office of the society and also meets Sh. Ram Avtar, Secretary of the society. Such Ram Avtar produces all the records before him and also reveals that the society had shifted its address from 1 Main Market, Kalkaji, Delhi to 21 Siras Pur, Delhi. He claimed that membership register was complete in all respects and accounts were audited up to 30.06.1977. He also reports that society had prepared up to date accounts till 31.03.2003 which had been verified by him. He also claims that as per the proceedings register, the last meeting was held on 29.06.2003 and all the records were found under the safe custody of Sh. Ram Avtar. He finally observed as under:-
"The present Managing Committee has maintain (sic) the records as per the statutory requirements and is instrumental in its efforts for revival of the society for providing dwelling units to its members for having shelter of their own."
7.10 Such inspection report has been proved as Ex. PW33/B1. Before discussing in detail his such report, it would be useful to recall the stand of A-3 Ram Nath. His explanation given u/s 313 (5) Cr.P.C. is very cryptic. He has simply passed on the buck to CBI claiming that CBI has failed to prove that he had permitted Gokul Chand Aggarwal to sign as Ram Avtar. He has also claimed that CBI has failed to prove that 21 Siras Pur, Delhi was a non-existing address.
7.11 When his statement in support of his written statement u/s 313 (5) Cr.P.C. was recorded, he admitted that he had conducted the inspection of the CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 56 of 90 society and had gone to the registered address of Siras Pur and whatever record was made available to him by the official of such society was seen by him and he prepared the report accordingly. In the next breath, he claimed that he did not recollect the name of that person.
7.12 His such report Ex. PW33/B1 and Ex. PW33/B2 is nothing but a bundle of lies. It has already come on record that the address of 21 Siras Pur, Delhi-42 was not the authentic address of such society. There was no question of there being any record lying there. He also claimed that as per the proceedings register, last meeting was held on 29.06.2003. However, that was not the last meeting. Rather it was the only meeting. There is no record whatsoever prior to 29.06.2003 and such fact was enough to raise doubt. However, the manner in which the report was prepared was sending a wrong message. It was suggestive of the fact that the proceedings were complete and the meetings were being held regularly till 2003. As I have already noticed above, Ram Nath has come up with evasive answers and has not even bothered to explain as to whom he had met and when he had gone to 21 Siras Pur. It was expected of him that he would have at least given the name of that person or would have at least identified him. If at all, he felt that he had been cheated at the hands of A-5 Gokul Chand Aggarwal, he should have explicitly claimed so. His keeping mum on this crucial aspect makes him co-conspirator with A-5 Gokul Chand Aggarwal and others. I have seen inspection report Ex. PW33/B1 and also its cover index Ex. PW33/B2. It also bears signatures of Ram Avtar at Q336. Undoubtedly, there is no positive opinion connecting with A-5 with such signatures of A-5 Q336 but fact remains that Inspecting official has held back the name and identity of such official of society whom he had met and I am compelled to draw adverse inference against him and also compelled to infer the criminal conspiracy.
7.13 Sh. S.K. Bhatnagar, learned counsel for A-3 Ram Nath, Inspecting Officer has contended that there was no pre-requisite for inspection u/s 54 of CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 57 of 90 DCS Act and moreover no procedure regarding inspection has been laid down anywhere. It has also been argued by him that no departmental action was ever taken against the Inspecting Officer and this also clearly indicates that he had not misused or abused his office. It has been again stressed by Sh. Bhatnagar that revival was not based on his inspection report and rather revival order was passed by RCS after perusing entire record. I am, however, not impressed with such argument. Even if there was no laid down procedure for inspection, Inspecting Officer had no business to give a false report. His false report also manifestly paved way for revival of society.
7.14 On the basis of such false report A-3 Ram Nath, A-4 Faiz Mohammad prepared another noting dated 08.12.2003. Faiz Mohammad has claimed himself not to be a computer literate. According to him, such note was got typed by A-1 Yogi Raj. This also shows that he was rather a part of conspiracy. He did not try to verify the record himself and believed the false inspection report prepared by Sh. Ram Nath without any hesitation and murmur.
7.15 Despite such inspection report, as per the directions of RCS, the record of the society was called for re-verification and random check was done by Zonal Inspector.
7.16 Here comes the involvement of A-2 Sh. U.S. Bhatnagar.
7.17 He was deputed to physically verify the addresses on random basis. He carried out physical verification and his report is at internal page 91-C to 160-C of D-5. There is no dispute that Sh. U.S. Bhatnagar had conducted such inspection. He admitted so even in his written statement filed u/s 313 (5) Cr.P.C. His explanation is also found to be vague and cryptic. He wants to claim that he had though gone for the inspection but he had no means to verify the authenticity of the documents produced before him during such spot inspection.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 58 of 90I have also seen the documents which he had collected during the spot verification. He contacted 23 members as per the following details:-
VERIFICATION DATED 23.12.2003 Sl. No. Names of Members Membership No. Place of Residence 1 Ajmer Singh 56 Kalkaji 2 Ved Prakash 58 Sarojini Nagar 3 Jagdish Kumar 74 Kalkaji 4 Girdhari Lal (PW19) 80 Kalkaji 5 Prahlad Singh 91 Kalkaji 6 Satya Pal (PW5) 130 Geeta Colony 7 Manohar Lal 140 Kalkaji 8 Dharam Pal 166 West Patel Nagar 9 Amrit Lal Walia (PW3) 183 Amar Colony 10 Ashok Juneja 190 Kalkaji VERIFICATION DATED 24.12.2003 Sl. No. Names of Members Membership No. Place of Residence 1 Ramesh Chand 48 Kalkaji 2 Suresh Kumar 57 Kalkaji 3 Arjun Dass 66 Kalkaji 4 Luv Nath Kapur 77 Ashok Vihar 5 Om Prakash 84 Kalkaji 6 Virender Kumar 93 Rohtak Road 7 Karam Singh 129 Tilak Nagar 8 Mahender Lal 141 Greater Kailash 9 M.C. Gupta 155 East Moti Bagh 10 Wariam Singh 171 Subhash Nagar 11 Virender Kumar 182 Kalkaji 12 Vijay Batra 200 Narayana 13 Khadikar 201 Gulabi Bagh 7.18 Again, it is not explained as to why undue haste was shown while carrying out such inspection. The society was lying dormant for 14-15 years and why the officials of RCS were working day in and day out for its revival.
Inspection of 23 members, located in different parts of the city, in two days during CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 59 of 90 working hours only is indeed some speed. Moreover, Sh. U.S. Bhatnagar did not attempt to collect any document related to identity of any such 23 members. He was satisfied with the copies of share certificates and receipts shown by them. These receipts were of the year 1974 and the verification had been allegedly done in the year 2003 and any normal prudent man, in such a situation, would have insisted for identity proof to ensure that the person whom he had met was actually such member. These records i.e. share certificates and receipts could have been very easily manufactured. If the latest identity proof of all such members had been collected, the situation might have been totally different.
7.19 Moreover, three of such members have been examined by the prosecution. PW3 Amrit Lal Walia, PW5 Sh. Satya Pal and PW19 Sh. Girdhari Lal have out rightly denied filing or signing any affidavit. Undoubtedly, it was bounden duty of the investigating agency and also of prosecution to have shown such verification reports to them as well and to have a clear answer from them that they had not signed any such verification report either. There is found to be a lacuna on this aspect but that does not mean that the case does not stand proved. All these witnesses were available for cross examination and even the defence did not attempt to confront them with their respective signatures on such spot verification reports. Perhaps defence was also conscious that these reports were nothing but forged and false.
7.20 Moreover, if Sh. U.S. Bhatnagar was of the opinion that he had in fact visited all the aforesaid 23 addresses for spot verification, there was no one to prevent him to have called any such member in his defence in order to demonstrate before the court that he had actually visited those addresses and was able to contact the members and had obtained their signatures also. He has deliberately not ventured into any such thing as he knew that falsity in his report would then be exposed to the hilt.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 60 of 907.21 Be that as it may, fact remains that such verification report is not a correct report. It must have been prepared sitting somewhere else in terms of conspiracy between RCS officials and Sh. Gokul Chand Aggarwal.
7.22 Thereafter, the matter was placed before the court of RCS. I have seen the proceedings which took place in the court of RCS and nowhere presence of President or Secretary of Anand CGHS is found recorded. Sh. N. Diwakar was a seasoned and responsible officer holding a very high position. He must have also immediately learnt that such society had appeared on the stage after a long hiatus of 14-15 years and he should have ensured the personal appearance of the President and Secretary of the society and should have also taken on record their identity proofs. Nothing of that sort was done by him. Matter was taken up by the court of RCS on 09.03.2004 and at that time, one Ms. Rita Kaul, advocate had appeared on behalf of the society. Sh. N. Diwakar permitted the society to be represented by an Advocate without there being any Vakalatnama. There is no authorization or Vakalatnama in the record of RCS and it is very surprisingly as to how he permitted Smt. Rita Kaul to represent the society without any written authorization. Arguments were heard same day and the matter was reserved for orders. Sh. N. Diwakar did not find any necessity of insisting on personal appearance of office bearers of the society and did not even try to interact with them. It was obligatory because the society had woken up from its deep slumber and had made representation after 14-15 years.
7.23 Accused N. Diwakar also passed the order of cancellation of winding up in a manner as if he was hearing an appeal. He had no business to do that. In the garb of passing on undue benefit to a private person, he started finding defects in liquidation order which had been passed more than two decades back. He also did not try to find out as to why the liquidator was not able to carry out the process of winding up. This also shows his active involvement with such private person. Moreover, as per Section 46 of DCS Act, every CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 61 of 90 cooperative society is required to submit statements and balance sheet in the prescribed form to Registrar annually and in the present case, Registrar did not even try to notice that no such statement had been furnished by the society.
7.24 Sh. Yogi Raj also cannot be permitted to claim that he had merely presented the record. His own noting dated 27.02.2004 indicates that the documents submitted by the society had been verified by him also. Again, as is the case with the other public servants-cum-accused, even the Assistant Registrar Sh. Yogi Raj has nowhere bothered to apprise the court as to who was that representative of the Anand CGHS who had been appearing in the court of RCS or who had been interacting with him from time to time. He also does not want to expose A-5 Gokul Chand Aggarwal for the reasons best known to him.
7.25 As far as A-6 P.K. Thirwani is concerned, it has been argued that he was not in the scene before the cancellation of winding up order and he, therefore, cannot be dubbed as co-conspirator. In his statement u/s 313 (5) Cr.P.C., A-6 admitted that he had done the audit of Anand CGHS but he supplemented that these were on the basis of the documents furnished by the accountant of the society. Undoubtedly, his role begins at a subsequent stage but then conspiracy is not an act of single transaction. It is a chain consisting of numerous inseparable links. Merely, because he was asked to conduct the audit after the cancellation of winding up order, does not mean that he had no role to play or was not part of the conspiracy. In such type of intricate and complex matters related to conspiracy, it is sometimes difficult to pin-pointedly decipher as to when such conspiracy actually starts and when it actually comes to an end. There are number of players and keeping in mind their respective roles, they chip in as and when they are required. Moreover, the final aim and objective of such conspiracy was to have an eventual order of allotment from DDA and to achieve the same, audit was sine qua non. Such audit report prepared by A-6 P.K. Thirwani is contained in D-22 and has been proved as Ex. PW29/B collectively (pages 1 to 124). Check list for submission of such audit report has CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 62 of 90 been proved as Ex. PW29/C (part of D-22) and option-cum-appointment letter has been proved as Ex. PW29/A. Signatures of Sh. Gokul Chand Aggarwal, while impersonating as Ram Avtar, are found at point Q587A on Ex. PW29/A and in the audit report at various places same Gokul Chand Aggarwal signed as Tej Bhan and Dharam Pal also besides Ram Avtar. Report of GEQD clearly exposes Gokul Chand Aggarwal in this regard and signatures of P.K. Thirwani are also on such audit report and it is very much loud and clear that P.K. Thirwani permitted accused Gokul Chand Aggarwal to sign as Tej Bhan, Ram Avtar and Dharam Pal.
7.26 Names of Tej Bhan, Ram Avtar and Dharam Pal are mentioned on internal page No. 124 of report Ex. PW29/B. Even as per the proforma, such officials i.e. President, Secretary and Treasurer were required to sign. These names are found to be in the hands of accused P.K. Thirwani as per the report of GEQD. Even if I treat those as mere names and not signatures, P.K. Thirwani cannot run away from the various other signatures appearing in his audit report which he also counter-signed. These signatures were put by A-5. Even as per the audit report, only two AGMs were held during the period under audit i.e. from 1977-78 to 2002-03. As per the audit report, 22 M.C. Meetings were held. However, no record of such M.C. Meeting has seen the light of the day. Share certificates were also found to be issued to some of the members only. No bank record was checked and verified during such audit which was also somewhat mandatory. Senior Auditor Sh. P.K. Thirwani did not smell anything fishy even when he found that there was no bank transaction for more than 20 years. He completed the audit by merely directing to obtain a balance confirmation certificate from the bank. He should not have completed the audit and should have examined the bank record himself.
7.27 According to Sh. Bhatnagar, the auditor cannot be said to be a part of any conspiracy. It has been argued that he had rather pointed out various infirmities and objections. I am, however, not impressed with this contention at CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 63 of 90 all as though he noted several points but fact remains that he also permitted A-5 to sign the same in an apparent fraudulent and illegal manner. The audit was also completed with extra ordinary quickness and was finished in a day.
7.28 Moreover, as per Ex. PW17/A, the genuine request for revival of Anand CGHS was made on 01.01.1988 and at that time Sh. R.L. Dang was President, Sh. K.L. Bhatia was Secretary and Sh. S. Singh was cashier. This record was naturally right there in the office of RCS. However, as per the audit report even for the period ending 30.06.1987 and 30.06.1988 the President was Sh. Tej Bhan, Secretary was Sh. Ram Avtar and Treasurer was Sh. Dharam Pal. This fact was never highlighted by the RCS officials rather it seems to me that it was deliberately suppressed by them.
7.29 I have also seen the evidence of solitary defence witness DW1 Sh. Narender Singh Khatri and I think that concerned accused or even his co- accused cannot dig out any advantage from his testimony. Any inspector, provided with a challenging and enormous task of visiting the spot and verifying the record, cannot be heard saying that revival order had nothing to do with his inspection report. He is also a very important character like his other co-accused and without the help of his false report, the revival was not possible.
7.30 RCS officials also cannot take any shelter behind Sec 34 DSC Act while claiming that Act was required to be construed liberally and they had no magic wand to assess the authenticity of documents and also that as per sec 41 of DCS Act, rather all such documents were to be assumed as prima facie evidence. If such analogy is accepted than any stranger would merely walk in RCS office and would get a favourable order in no time. If such contention is accepted then where is the requirement of deployment of government officials at all levels? Job of all such RCS officials was to scrutinize the record and correlate those with the official record and then to decide the application in the most judicious manner. Undoubtedly, even RCS officials can be duped by any CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 64 of 90 smart trickster in any given case. After all, they are also human beings. But, here the situation is totally different and all the concerned RCS officials rather deliberately entertained the impersonator. There would have certainly been some tacit understanding that they all would get something in return once the land was allotted by DDA. The other ugly and greedy side of human nature overpowered their better side and in terms of some unstated arrangement, they did not even blink for a second while clearing the decks for allotment.
7.31 It will be very curious to note that such unauthorized private person i.e. A-5 Gokul Chand Aggarwal had been interacting with the officials of RCS with respect to two matters. To his utter dismay and misfortune, both such matters are pending adjudication before this court itself. The other case is of Ashoka CGHS (CC No. 26/2011) in which he impersonated as one Hemant. Here he has assumed the identity of one Ram Avtar in particular. Public servants-accused did give a damn to such plain and evident act of A-5 Gokul Chand Aggarwal and permitted him to interact and even sign as two different persons during the same period. This fact itself is a big pointer towards their active and malafide involvement and signifies their collusion with A-5 Gokul Chand Aggarwal.
7.32 Thus, the conspiracy is writ large and it becomes very much evident and palpable that RCS officials were hell bent in passing undue and dishonest advantage to an unauthorized person i.e. Sh. Gokul Chand Aggarwal. All the norms and basic principles were kept aside and in a jiffy, everything was done. All such officials of RCS were hardly bothered about the unusual characteristics of such bogus application and did not feel perturbed as to why such society had approached them so belatedly and without mandatory record. Order was passed with undue haste without scrutinizing own record or record from official liquidator. No attempt was made to collect ID proof of Ram Avtar who was allegedly secretary of such Anand CGHS. Had they been even touch careful, they would have certainly come to know that the person approaching them was not a representative of society at all. Moreover, the case of revival was CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 65 of 90 never pertaining to North-West Zone. It is quite possible that registered address of society in question was shown changed so that such request could be entertained by the public servants-accused in question and not by the actual dealing zone. This also suggests some tacit understanding between them and A-5 well in advance. Thus, in a calculated and pre-planned manner, Anand CGHS was revived and freeze list was sent to DDA for allotment of land. Fortunately, the conspiracy got unearthed before the land could be allotted. Thus the involvement of all the public servants accused is clearly made out.
LEGAL ISSUES RAISED BY THE PUBLIC SERVANTS 8.0 It is now appropriate to take up the legal issues raised by the public servants.
8.1 Needless to say that the object behind the requirement of obtaining sanction of prosecution a public servant is to have a check on frivolous, mischievous and unscrupulous attempts to prosecute a honest public servant for acts arising out of due discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. Admittedly, sanction is required to be given after considering the relevant material but it is not must for any such sanctioning authority to mandatorily examine the original record and, therefore, even if it is assumed that the original record was not sent to the competent authority, it would not render the sanction invalid.
8.2 While relying on Mohd. Iqbal Ahmad v. State of A P 1979(2) SCR 1007, wherein it has been held that a trial without a sanction renders the proceedings ab initio void, Sh. S.K. Bhatnagar has contended that sanction u/s 19 of Prevention of Corruption Act has not been obtained from the competent CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 66 of 90 authority. However, he has not been able to develop this argument in any substantial manner. I have seen the testimony of concerned sanctioning authorities. I have also seen their cross-examination and I have not been able to find out any material which may even remotely indicate that sanction was obtained from incompetent authority.
8.3 PW1 Sh. R. Narayana Swamy had accorded sanction qua two of the accused persons i.e. A-3 & A-6. PW2 Sh. S.K. Khosla had authenticated the sanction order qua A-1 and PW38 Sh. Vijay Kumar had accorded sanction of prosecution of A-2. PW2 Sh. S.K. Khosla has deposed that sanction for prosecution of accused Yogi Raj was granted by Lieutenant Governor, Delhi who was competent authority to remove him and such sanction order was authenticated by him. PW1 Sh. R. Narayana Swamy was posted as Chief Secretary, Govt. of NCT of Delhi at the relevant time and nothing has been brought on record by the defence to show that he was not competent to accord the sanction.
8.4 Sh. S.K. Bhatnagar has attempted to contend that sanction for prosecution should have been taken from that particular official only who was posted as Competent Authority at the time of the commission of offence. I am, however, not impressed this argument at all. It is only required to be seen whether the sanction has been obtained by the competent authority or not. It is the office which matters and not the person occupying the office. Conspiracy was unearthed subsequently and after thorough investigation, when the roles of the respective public servants were ascertained and their involvement was noticed, steps were taken to obtain sanction for their prosecution and, therefore, in such scenario, obtainment of sanction for prosecution from the then competent authority cannot be said to be wrong by any stretch of imagination and, therefore, Sh. S.K. Bhatnagar cannot dig out any advantage from Parkash Singh Badal and Anr vs State Of Punjab 2006(4) Crimes 388 SC and R.S. Nayak v A.R. Antulay (1984 (2) SCC 183). Moreover, merely because there is CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 67 of 90 any omission, error or irregularity in the matter of according sanction, that would not affect the validity of the proceeding unless such error, omission or irregularity results in failure of justice. Reference in this regard be also made to decision of Apex Court in the case of State of Bihar & Ors. Vs. Rajmangal Ram [Criminal Appeal No. 709-710 of 2010 (DOD: 31.03.2014)]. Here, there is nothing to show or prove that there was any failure of justice or serious prejudice to the accused because of the alleged improper sanction.
8.5 It has been contended by all Public Servants-accused(s) that no mandatory sanction has been obtained u/s 197 Cr.P.C. and, therefore, the proceedings are bad in law. Such contention is also somewhat misplaced.
8.6 There is no fun in seeking sanction for prosecution twice. Prevention of Corruption Act is special statute and sanction given under Section 19 of PC Act automatically embraces the similar provision of sanction contained in Section 197 of Cr.P.C. Moreover, if defence contention is accepted that even after obtaining sanction under Section 19 of PC Act, another sanction under Section 197 of Cr.P.C. would also be required to be obtained. Thus, the very purpose of Section 19 of PC Act and the legislative intent would stand negated and frustrated by such interpretation.
8.7 In the case of Neera Yadav Vs CBI (2006)2 All L.J. 442 also, it has been observed by Full Bench of Allahabad High Court that for the offences covered under Prevention of Corruption Act, 1988 sanction under Section 19 is sufficient and no further sanction is required under Section 197 of Cr.P.C. It has been observed in that case as under:-
(I) For prosecution under Prevention of Corruption Act, 1988, once sanction under Section 19 of the said Act is granted, there is no necessity for obtaining further sanction under Section 197 of the Code of Criminal Procedure.CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 68 of 90
(II) Where a public servant is sought to be prosecuted under the provisions of Prevention of Corruption Act read with Section 120-B, I.P.C. and sanction under Section 19 of Act of 1988 has been granted, it is not at all required to obtain sanction under Section 197 Cr.P.C. from the State Government or any other authority merely because the public servant is also charged under Section 120-B, I.P.C.
(III) The offences under the Prevention of Corruption Act, 1988 as well as charge of criminal conspiracy, cannot be said to constitute "acts in discharge of official duty."
8.8 Reference be also made to Dharambir Khattar and others vs. Central Bureau of Investigation (2009) 159 DLT 636.
8.9 As regards accused N. Diwakar, sanction u/s 19 of PC act was not required because he was no longer in service when the chargesheet was filed for the purposes of taking cognizance. Similarly, no sanction u/s 19 of PC Act qua accused Faiz Mohd. was sought as he had already retired by the time charge- sheet had been laid before the Court.
8.10 It is naturally little bit complex whether in such a situation, CBI should have obtained sanction u/s 197 of Cr.P.C. or not. Defence has relied upon following judgments on the point of sanction u/s 197 Cr.P.C.:-
1 State of M.P. Vs. Sheetla Saha 2009 (VIII AD) SC 630 2 C.P. Thakur Vs. CBI 2009 (110) DRJ Page 1 3 K.R. Purushothaman Vs. State of Kerala (2005) 12 SCC 631 4 R.B. Pillai Vs. State of Kerala AIR 1996 SC 90.
5 Dawarika Prasad Vs. State 1996 (2) CC Cases 6 Delhi 8.11 Keeping in mind the peculiar facts of the aforesaid cases, I am of the view that the defence cannot dig out any advantage from the aforesaid judgments. I need not remind myself that such accused have also been charged for committing criminal conspiracy. In Harihar Prasad v. State of Bihar (1972) 3 CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 69 of 90 SCC 89 it has been held that as far as the offence of criminal conspiracy punishable under section 120-B was concerned, it could not be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. It was thus held that it was not 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 and, therefore, want of sanction under Section 197 of the Code of Criminal Procedure was no bar to prosecution.
8.12 Here, accused N. Diwakar had no business to enter into criminal conspiracy with others. His such act of criminal misconduct does not make him entitled to seek immunity under the protective umbrella of Section 197 of the Code of Criminal Procedure. The upshot of the aforementioned discussion is that whereas sanction in terms of Section 197 Cr. P.C. is required to be obtained when the offence complained against the public servant is attributable to discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained has nothing to do with the same.
Merely because he was Registrar at that moment and passed an order as Registrar would not mean that sanction was required because his act of entering into criminal conspiracy had nothing to do with his official business.
8.13 Dr. Sushil Kumar Gupta has also relied upon various following judgments:-
Sl. Title of the case along with citation Issue No. 1 Union of India Vs Major J.S. Khanna & Ors - 1972 Lack of procedure does not Cr.LJ-849 amount to commission of offence 2 K.R. Purushothaman Vs State of Kerala - (2005) Inapplicability of Section 13 12 SCC-631 (1) (d) 3 A. Subair Vs State of Kerala 2009 CRI. L.J. 3450 Inapplicability of Section 13 (1) (d) 4 Major S.K. Kale Vs State of Maharashtra - 1977- Onus of proof in case of Sec. AIR (SC) - 822 13 (1) (d) CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 70 of 90 5 S.P. Bhatnagar Vs State of Maharashtra - AIR What amounts to abuse of (SC) - 1979-826 position? 6 Abdulla Mohammed Pagarkar Vs. State - AIR Irregularities in execution of (SC) - 1980-499 work - Not a misconduct 7 Subhash Parbat Sonvana Vs. State of Gujarat Analysis of word "obtains" as Cr.L.J.-2002-2787 mentioned in Section 13 (1) (d) of PC Act. 8 R. Balakrishna Pillai Vs. State of Kerala AIR-2004- Existence of Actus Reus and SC-1012. Mens Rea is must. 8.14 I have seen all the aforesaid judgments and I have no hesitation in
holding that defence cannot dig out any benefit from these precedents in the present context at least.
8.15 It is not a simple case of public servants acting carelessly or inattentively. Present is also not a case of mere breach of procedure. It's not a run-of-the-mill kind case of demand and acceptance. It is an unusual and atypical case whereby attempt was made to ensure that pecuniary advantage is received by a person who was not even authorized by the concerned society to appear before RCS with any request. Prosecution has proved its case in affirmative and onus has not been shifted at all. In Major J.S. Khanna (supra), Supreme Court observed that regarding the allegation that the firm Auto Stores was non-existent firm, there was no conclusive evidence to show that the accused officers knew that there did not exist any such firm. As regards the allegation that the goods were purchased without following the usual procedure, the Supreme Court held that it was possible that the goods might have been required immediately especially in an emergency like the one which was then prevailing and an officer might find it difficult, if not impossible, to go through the routine procedure possible and desirable in peace time. It was also held that though the accused might not have been careful or was grossly negligent yet his action was not actuated with criminal intent. As regards the irregularities in procedure committed by the accused, it was held that a procedure might not be in accordance with the rules prescribed for purchases, but that such a breach or CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 71 of 90 procedure did not surely mean fraud or any other criminality. Here the facts are entirely different. In Major S.K. Kale(supra) also, the facts projected before the court did not show that the accused had used any corrupt or illegal means. In S.P. Bhatnagar (supra), the accused officials of the Indian Oil Corporation were alleged to have shown favour to the accused contractors in regard to a contract of rock cutting and filling work by manipulating the records and by issuing work order with inflated figures and by accepting false bills submitted by the contractor. Supreme Court held that analysis of the circumstantial evidence did not lead to an unerring certainty that the accused 1 and 2 (the Engineering Manager and Senior Engineer respectively of the Indian Oil Corporation) acted with dishonest or corrupt motive or abused their position in having the contract in question entrusted to the accused No.4 or that they had a hand in the removal of the level plan and work sheet from the file and substitution by false documents. In Abdulla Mohammed Pagarkar (supra), after going through evidence on record, the Supreme Court held that though the work was got executed in flagrant disregard of the relevant rules, such disregard did not amount to any of the offences alleged against them. It was also held that the onus of proof of the existence of every ingredient of the charge always rested on the prosecution and never shifted. There cannot be any qualm with such legal proposition but facts presented and proved before me tell a different tale and reveal misuse and abuse of office.
8.16 Moreover, each case has its own peculiarity and special features. Factual matrix of any two cases would never be same and, therefore, disposal of cases by blindly placing reliance on a precedent is not proper because one additional or different fact may make a world of difference between conclusions in two cases. Reference in this regard be made to Union of India & Anr. vs. Arulmozhi Iniarasu & Ors (2011) 9 SCR 12.
8.17 Learned defence counsels have vehemently contended that it was not a case of attempted cheating even. It has been argued that since CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 72 of 90 DDA had also sent back the matter for re-verification, there was no attempt either. According to them, at best it would remain in the realm of preparation. In this regard, reliance has been placed on Malkiat Singh & Anr Vs State Of Punjab 1970 AIR 713, wherein it has been held that the test for determining whether acts constitute mere preparation and not an attempt is whether the overt acts already done are such that if the offender changes his mind and does not proceed further, the acts already done would be completely harmless. There cannot be any qualm with the legal proposition but it becomes very much evident, in the instant case, that there was clear cut case of attempt to cheat. Various documents were fabricated and forged and were submitted. I would rather go to the extent of commenting that the moment an application from unauthorized quarter was entertained by the officials of RCS in terms of criminal conspiracy, the offence of attempted cheating was complete.
8.18 It has next been contended that the registration of FIR was bad in law as no consent from the competent government had been obtained. This argument is fallacious. Present FIR has been registered on the basis of clear cut directions issued by Hon'ble High Court of Delhi in its order dated 02.08.2005 passed in WP (C) No.100066 of 2004. A copy of this order was placed on record by the defence during the course of final arguments and the Hon'ble Division Bench of High Court of Delhi directed CBI to conduct thorough investigation in all the matters of 135 Cooperative Societies. It was also directed that CBI Director would formulate a specific investigating team headed by an officer not below the rank of DIG to investigate the whole matter and pursuant to such specific directions, the preliminary inquiry was conducted in the present matter also and as per the outcome of such preliminary inquiry, FIR was registered. No illegality can be found on this aspect of registration of FIR.
8.19 Reliance on Maya Wati Vs. Union of India 2012 (Criminal Law Journal) 4282 Supreme Court is misplaced in the present context. In that case Apex Court had directed inquiry with respect to the various irregularities CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 73 of 90 committed by the officials/persons in Taj Heritage Corridor Project and simultaneously, it was also directed that the assets of concerned officials/individuals as related to the aforesaid project be also investigated in order to ascertain whether there was misappropriation of funds with regard to out flow of Rs. 17 crores released for the construction of said project. CBI, misinterpreting such directions, also registered a separate case related to disproportionate assets against Ms. Maya Wati and it was in that context that Hon'ble Apex Court had held that there was no specific direction regarding lodging of FIR in the matter of disproportionate assets.
8.20 In the present case, as is evident from the aforesaid directions contained in order dated 02.08.2005, the directions were pinpointed and CBI was specifically asked to investigate all the matters related to 135 Cooperative Societies and, therefore, there was no requirement of obtaining any consent of State Government or Central Government as the case may. State of West Bengal v. The Committee for Protection of Democratic Rights 2010 (2) S.C.A.L.E. 467 is a landmark judgment wherein the Supreme Court has held that High Court can direct CBI to investigate an offence without the consent of the state government within whose territorial jurisdiction the offence is alleged to have taken place. Relevant extract is as under:-
" In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly."CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 74 of 90
8.21 Sh. N. Diwakar has relied upon various provisions of DCS Act and Rules made thereunder and while heavily relying upon those provisions and one judgment of Hon'ble Delhi High Court given in the case of Vikas CGHS Vs. RCS (CWP No.1767 of 1986 DoD 21.11.1986), it has been argued that RCS had no option but to order the cancellation of winding up order as the liquidation proceedings were not completed within the stipulated period. I have carefully gone through the aforesaid judgment of Vikas CGHS and there cannot be any qualm with respect to the related provisions and the powers of RCS. However, the case of Vikas CGHS was on a different footings altogether. In that matter even after the order of liquidation, the land had been allotted by DDA and even the RCS had himself requested liquidator not to take any action as the time had been given to the concerned society. In that case, even the construction was mid-way and acting on the writ of Vikas CGHS, it was, therefore, held that the order dated 10.07.1986 regarding appointment of liquidator to receive all the records of the society was without any legal authority.
8.22 It would also be useful to extract section 63 of DCS Act, 1972 and Rule 105 of DCS Rules, 1973 which are as under:-
Sec 63: Winding up of co-operative societies.
(1) If the Registrar, after an inquiry has been held under section 55, or an inspection has been made under section 56, or on receipt of an application made by not less than three-
fourths of the members of a co-operative society, is of opinion that the society ought to be wound up, he may issue an order directing it to be wound up. (2) The Registrar may of his own motion make an order directing the winding up of cooperative society-
(a) where it is a condition of the registration of the society that the society shall consist of at least ten members and the number of members has been reduced to less than ten, or
(b) where the co-operative society has not commenced working or has ceased to function in accordance with co-operative principles. (3) The Registrar may cancel an order for the winding up of a co-operative society, at any time, in any case where, in his opinion, the society should continue to exist.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 75 of 90(4) A copy of such order shall be communicated by registered post to the society and to the financing institutions, if any, of which the society is a member. (5) Notwithstanding anything contained in this section no co-operative bank shall be wound up except with the previous sanction in writing of the Reserve Bank.
Rule 105: Termination of Liquidation Proceedings The winding up proceedings of a society shall be closed within one year from the date of the order of the winding up, unless the Registrar extends the period. Provided that the Registrar shall not grant any extension for a period exceeding six months at a time and three years in the aggregate, and shall immediately after the expiry of three years from the date of the order for winding up of the society, deem, that the liquidation proceedings have been terminated if there are no central amounts due to the Governments or the Financing Bank by the society and pass an order terminating the liquidation proceedings.
Explanation - : In the case of co-operative society which is under liquidation at the time of commencement of the Act, the order for winding up of the society shall be deemed for the purpose of this rule to have been passed on the date of such commencement.
2. Notwithstanding anything contained in the foregoing sub-rule the Registrar shall terminate the liquidation proceedings on receipt of the final report from the liquidator. The final report of the liquidator shall state that the liquidation proceedings of the society have been closed, and how the winding up has been conducted and the property and the claims of the society have been disposed of and shall include a statement showing a summary of the account of the winding up including the cost of liquidation, the amount (if any) standing to the credit of the society in liquidation, after paying off its liabilities including the share or interest of members, and suggest how the surplus should be utilised.
3. The liquidator before submitting the final report may call a meeting of general body of the society and place the report before it if permitted by the Registrar.
8.23 It becomes very much evident that Registrar could terminate the liquidation proceedings but in the present matter, the power has been used and the provision has been invoked in an apparent malafide manner. The records were not checked and rather were overlooked. Representatives of the societies CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 76 of 90 were not called in person. Their identification documents were not collected. Without audit report, a conditional order was passed by RCS despite the fact that the society was lying completely inactive for last 14-15 years. The provision could have been invoked but the invocation of the provision was with undue haste and in a malafide manner and, therefore, no advantage can be drawn by Sh. N. Diwakar from aforesaid judgment given in Vikas CGHS case.
8.24 Dr. Sushil Kumar has also relied upon one judgment of our own High Court given in the case of A.K. Ganju Vs. CBI (Criminal MC 2384 of 2011 DoD 22.11.2013). Said judgment also does not come to his rescue because in that case the Hon'ble High Court had found that CBI had failed to establish as to which unauthorized construction had been done by which accused and who were the officials posted with whom the conspiracy was hatched and by which petitioner. It was also felt that the charge sheet was vague and there was no evidence against the petitioners and even the witnesses had not supported the case of prosecution. It was in that peculiar context that the charge sheet in said case had been quashed. Here, as I have already discussed above that the investigation had been conducted on the basis of the specific directions given by the Hon'ble High Court of Delhi and, therefore, the conducting of preliminary inquiry and subsequent registration of FIR cannot be faulted with.
8.25 It does not really matter that the name of Sh. N. Diwakar was not shown as accused at that time of registration of FIR. Registration of FIR is only a starting step and not the concluding step. Moreover, FIR need not be an encyclopedia of the case and no accused can be permitted to claim exoneration on this insignificant aspect.
8.26 Dr. Sushil Kumar has also contended that even the predecessor of Sh. N. Diwakar had been cancelling the liquidation order in the similar manner and, therefore, there cannot be said to be any malafide on the part of Sh. N. Diwakar. Sh. R.P. Shukla has also strongly relied upon one order dated CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 77 of 90 02.08.2000 of Sh. R.K. Srivastava, previous RCS. A copy thereof was also shown during the course of final arguments.
8.27 I am of the view that no benefit can be extracted from the aforesaid order. Undoubtedly, liquidation proceedings were required to be terminated within the stipulated time frame and opportunity is required to be given to the concerned Managing Committee of the Society so that the revival request is considered properly. In the garb of such general order, no public servant can throw all the mandatory cautions to the winds. Matter of any such society, which was making request for revival after 14-15 years, should have been taken up with extra care and caution. In the present case whereas excessive haste was shown and no care whatsoever was taken and the bogus documents were relied upon without even cross checking the official record. False inspection reports and random spot verification reports were collected in terms of conspiracy and winding up order was cancelled in an apparent mala fide manner.
8.28 Reliance has also been placed upon Section 93 DCS Act as well as on Section 76 and 79 of IPC and it has been argued that all such public servants are entitled to general defence and recognized general explanation and they cannot be held as offenders for an act which has been done by them in discharge of their public duties. However, these provisions contain words "good faith". My foregoing discussion would clearly indicate that the acts of public servants were not in good faith at all and, therefore, they cannot take shelter behind aforesaid provisions.
8.29 Sh. N. Diwakar has also claimed that while acting as Registrar, he was discharging his duties as a judge and, therefore, he could not have been prosecuted at all. He had attempted to raise this issue earlier also but did not meet with any success. Reference in this regard be made to one judgment given by our own High Court on the basis of his own petition. In such judgment i.e. Narayan Diwakar Vs. CBI 129 (2006) DLT 258 it has been categorically held CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 78 of 90 that any Registrar while exercising and discharging functions under DCS Act, 1972 cannot be deemed to be a judge and consequently cannot claim any protection from prosecution or other legal proceedings.
8.30 Sh. S.K. Bhatnagar, learned defence counsel has also contended that the alleged irregularities, if any, could have given rise to prosecution of offence under DCS Act and, therefore, the prosecution under IPC and PC Act was bad in law. I am not impressed with such contention at all. Offences provided under DCS Act are in the nature of penalty only and it does not take care of the specific acts of cheating, forgery and corruption. Moreover, with respect to any prosecution for violation of provisions of DCS Act, prosecution cannot be launched without the previous sanction of the Registrar. Here, the Registrar himself is involved. It will, therefore, be paradoxical and incongruous to have sanction from Registrar for his own prosecution. Moreover, as noted above, there was a conspiracy between public servants on one hand and a private person on the other and to achieve the final objective of such conspiracy i.e. unauthorized allotment of land, an application coming from unauthorized quarter was entertained and bogus records were accepted. False reports were generated and all these acts of cheating, forgery and corruption are not covered under the penalties or minor offences envisaged under DCS Act.
8.31 Sh. R.P. Shukla has also contended that Sh. Yogi Raj was not having any malafide intention and if at all he had any such intention then why he would have permitted inspection u/s 54 of DCS Act. I do not find any significance in such contention either. Even RCS had sent back the file for re-verification purposes and his such act would not mean that he was acting in good faith and, therefore, should be exonerated. The overall conduct clearly indicates malafide intention on the part of all the public servants.
8.32 It is settled proposition that it is not necessary that all the conspirators should participate from the inception to the end of the conspiracy.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 79 of 90Some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy after playing their respective roles. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them would surely be liable for such offences. To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts.
8.33 Relying on State of Maharashtra Vs. Som Nath Thapa JT 1996 4 SC 615, Ram Narain Popli Vs CBI 2003(3)SCC 641 and Kehar Singh and Ors. v. The State (Delhi Administration), AIR (1988) SC 1883, it has been argued that there is nothing to show meeting of minds and it has also been contended that mere knowledge would not be per se sufficient to make anyone co-conspirator. I have seen all the aforesaid judgments very carefully and I am of the considered opinion that defence cannot dig out any advantage from said judgments. In Ram Narain Popli (Supra), it has rather been held that for an offence punishable under section 120-B, prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act and the agreement may be proved by necessary implication.
8.34 Thus such agreement may be express or implied, or in part express and in part implied. In Kehar Singh (Supra), it has been observed that conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same and prosecution often has to rely on evidence of acts of various parties to infer that those were done in reference to their common intention. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 80 of 90 persists till the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or otherwise. In A. Wati AO vs. State of Manipur, AIR 1996 SC 361, the accused I.A.S. Officer was party to conspiracy in giving contract in question to a black listed firm at an exorbitant rate and it was held that the involvement of the appellant in the conspiracy is so apparent that it cannot be said that there was any straining of the circumstances to connect the appellant with the crime and thus the guilt of the accused was proved beyond doubt.
8.35 The actus rues in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is also not necessary that each conspirator should have been in communication with every other. In Yash Pal Mittal v. State of Punjab [1977] 4 SCC 540, it has been laid down that the very agreement, concert or league was the ingredient of the offence and it was not necessary that all the conspirators must know each and every detail of the conspiracy as long as they were co-participators 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.
8.36 Thus, though there may be plurality of means sometimes even unknown to one another, amongst the conspirators, there must be unity of object or purpose. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others.
8.37 There can be no two opinions about the fact that in such type of complex cases where public servants gel and mingle with private person, it is unfeasible to secure direct evidence. Here the manner in which the private person was entertained without even bothering to cross-check any record clearly suggest that all the concerned public servants had united together and were CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 81 of 90 working in same direction with common ulterior and corrupt objective. Their acts and omissions provide a window to their mind(s). Undue haste shown to a sleepy stranger is also suggestive of dishonest intention. Circumstances proved during the trial clearly form a chain of events showing clear-cut and defined participation of each player.
8.38 It has been argued by Sh. S.K. Bhatnagar that when there was a specific statute i.e. DCS Act, there was no occasion for CBI to have prosecuted the accused under general law and in this regard Sh. S.K. Bhatnagar has heavily relied upon the case of Suresh Nanda Vs C.B.I 2008(3) SCC 674. Facts of that case were entirely different and in that case during search, passport of applicant was seized and impounded by police and his request for release of passport was declined and in that case, an issue was raised as to whether seizure u/s 102 or 104 of Cr.P.C. would prevail over section 10 of Passports Act which section also provided variation, impounding and revocation of the passports and travel documents. It was in that context that it was held that for the purpose of impounding of passport, special law would prevail over general law.
8.39 Sh. S.K. Bhatnagar has also contended that as per the decision given by Apex Court in State of Maharashtra Vs. Laljit Raj Ji Shah AIR 2000 SC 937, the officials of RCS cannot be said to be public servants and, therefore, they could not have been prosecuted. I have seen said judgment very carefully. In that case, accused persons were not the officials of RCS and were rather Chairman and members of the Managing Committee of cooperative societies. It was only as per Section 161 of Maharashtra Cooperative Societies Act 1960 that these private persons were also deemed to be public servants. They were prosecuted under relevant penal provision of Prevention of Corruption Act also and it was, in that context, that it was held that they could not be prosecuted under the provision of Prevention of Corruption Act as they could not be said to be public servants falling within the definition of Section 21 of Indian Penal Code. Here, we are not concerned with any such member of Managing Committee of CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 82 of 90 society. Here, we are concerned with the public servants employed in the office of RCS and they were certainly discharging public duties and fell within the definition of public servants and, therefore, defence cannot dig out any advantage from said judgment.
8.40 Accused N. Diwakar has also relied upon one judgment of our own High Court cited as Tilak Upbhokta Sahkari Store Ltd Vs. Registrar Cooperative Societies AIR 2003 Delhi 1. I have seen said judgment very carefully and there is no doubt that liquidation order of society is extreme punitive measure and should be, therefore, resorted to as a last alternate. It is also not in dispute that any such society under liquidation should always be given good chance and opportunity to remove defects and shortcomings. However, in the present case, situation is totally different and accused N. Diwakar did not take any real corrective measures. He finished the matter in one hearing. He never bothered to call the concerned office bearers of such society which was even otherwise very important because the society had approached the office of RCS after a very long interval. The manner in which he decided the matter does not show that he was bothered about taking any curative or corrective measures. His goal was only to get the society revived as quickly as possible and in order to do so, he rather found faults in the order of winding up as if he was sitting in appeal over such order.
8.41 Sh. Bhatnagar has relied upon Anil Kumar Bose Vs State Of Bihar 1974 AIR 1560 wherein it has been held that the evidence adduced must establish beyond reasonable doubt means rea on their part of the accused and also that it will not be correct to impute guilty intention merely from the failure on the part of the accused to perform his duties or to observe the rules of procedure laid down in the duty chart in a proper manner which could be said to be an administrative lapse only. My foregoing discussion clearly indicates that it was not a mere case of failure in performing duties.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 83 of 908.42 Sh. Bhatnagar has relied upon S. SWAMINATHAN VS STATE OF DELHI 2008 CR.L.J. 1957 and has contended that Auditor and Inspector had merely certified the record and were not liable for forgery or for any other offence. However, situation is not akin here. In that case, a chartered accountant had merely certified a statement of fact based on the record produced by a company and it was held that charge of a conspiracy could not be framed against the chartered accountant unless there was some more material against such chartered accountant. Here, these accused are not private professionals. Rather, they happen to be public servants who had been shouldered with responsible work and they cannot seek exoneration on the basis of said authority.
CONCLUSION 9.0 Before concluding, it will be useful to extract clause (d) in Sub- Section (1) Section 13 of PC Act which reads as follows--
"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) 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".
9.1 It is clear from a reading of clause (d) that all the three wings of clause (d) of Sec. 13(1) are independent and alternative and disjunctive for constituting the ingredients for the offence under sec. 13(1)(d) as is clear from the use of the word 'or' at the end of clause. Thus under Sec.13 (1) (d) (i) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would satisfy the requirement of criminal misconduct CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 84 of 90 under Section 13(1)(d) of the Prevention of Corruption Act 1988. On the same reasoning "obtaining a valuable thing or pecuniary advantage merely by abusing official position" as contemplated under Section 13(1)(d)(ii) in itself would satisfy the ingredients of criminal misconduct under Section 13(1)(d) of the Act, 1988. Similarly under 13(1)(d)(iii) obtaining for any person any valuable thing or pecuniary advantage without any public interest is a separate ingredient by itself.
9.2 Gist of the offence under Section 13(1)(d) is that anyone abusing his position as a Public Servant obtains for himself or for any other person any valuable thing or pecuniary advantage.
9.3 The word "abuse" means misuse i.e., using his position for something for which it is not intended. Abuse can be inferred from various circumstances viz absence of power, exceeding jurisdiction in order to cause gain to others, completely irrelevant consideration or leaving out relevant and material consideration, malafide, unreasonableness, uncalled-for and excessive haste, undue favour to any party or person etc. Such abuse is naturally by "corrupt" or "illegal" means. Whether any public servant did abuse his position or not would essentially depend upon the facts of each case and no absolute rule can be postulated.
9.4 In Ram Prakash Singh vs. State of Bihar, AIR 1998 SC 296, appellant was working as Development Officer in the Life Insurance Corporation of India. Deep Narayan Singh who was co-accused, was also working with LIC as Asst. Branch Manager, Patna. It was alleged by the prosecution that both these accused hatched a criminal conspiracy and in pursuance thereof introduced some false and fake insurance proposals to the Corporation in the name of non-existing persons as also without the knowledge and consent of the insurer in order to earn undue credit and promotions in the LIC on the basis of their inflated business. It was contended in support of the appeal that there was no loss to the Corporation since the insurance policies were not issued. It was CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 85 of 90 also urged that the appellant did not gain any benefit out of these proposals. It was held by Apex court that it needs to be emphasized that the appellant being a Development Officer owed a greater responsibility to the LIC as well as to the clients and any such faked or forged proposals were bound to harm the reputation of the LIC and accordingly conviction under relevant provisions of PC Act and IPC was upheld. It is also important to mention that said case was also of attempted cheating. Under the Old Act, offence of criminal misconduct and offence of attempt to commit criminal misconduct were punishable under the same section and attracted same sentence. In the new Act whereas, offence of attempt has been separated and is relatively milder.
9.5 Here also, there is perceptible attempt to cause wrongful loss to the actual eligible society, in terms of seniority.
9.6 A defunct society was revived illegally and was made eligible for land allotment as its original registration was of the year 1972. Thus, there was an attempt to pass on pecuniary advantage to A-5 purportedly representing Anand CGHS. All the concerned officials of RCS abused and misused their public offices in such endeavour.
9.7 The act of concerned officials of RCS cannot be said to an act of mere negligence or dereliction of duty. They were rather actively involved and were hell-bent in ensuring that unauthorized and illegal request of A-5 was met with success. All the concerned officials of RCS were united together and were consciously and knowingly helping one another for the purposes of attaining a common objective. They all displayed obstinate indifferences to the consequences of their acts and omissions and their conduct clearly depict complete disregard to the basic and commonsensical norms and therefore, their acts are nothing but criminal misconduct.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 86 of 909.8 Now a very pertinent question arises. Whether it's a case of criminal misconduct or a case of attempted criminal misconduct? Trial is though not for attempt but for full-fledged offence.
9.9 It is manifest that all the concerned public servants had abused and misused their office. All had played their role to the perfection and also to the hilt. The moment letter was sent to DDA for allotment, nothing further was left for such RCS officials to do. Their objective was that a person portraying himself to be an authorized representative gets land. A defunct society was, therefore, revived. Thus, it was not a case of preparation from any angle.
9.10 Though, concerned public servants had misused and abused their office, the other crucial ingredient of obtainment of pecuniary advantage is still required to be established. Naturally, they all must have indulged in misconduct either because they had already been suitably rewarded or must have done so in anticipation of any gain for themselves or for anyone else.
9.11 Qua the first alternate, there is no evidence of their already getting any advantage to self or to others and it can only be inferred. But then any criminal trial cannot be permitted to culminate on the basis of pure guess work or imagination.
9.12 However, the other option is clearly found covered under sec 15 of PC Act.
9.13 All such public servants had done whatever they were required to do. Thus misconduct, to that extent, was evidently complete. It was perceptibly done to drive pecuniary advantage either for themselves or for A-5 G.C. Aggarwal. Such stage would have certainly come only when the land was also eventually allotted. Thus, criminal misconduct was committed in order to attempt to obtain pecuniary advantage for self or for others. Pecuniary advantage cannot CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 87 of 90 be always considered in terms of money. In PUSHKAR MAL VERMA Vs STATE (CBI) (CRL.M.C. 2691/2011 Date of Decision: 01.06.2012) our own High Court has observed that the words "pecuniary advantage" used in Section 13 (1)(d) were of wide amplitude and may not every time mean and have reference to taking of money in physical form. Providing employment to someone favourably against merit, may be due to relation of some other tangible or intangible consideration, would also be a case of pecuniary advantage to both employee and also the wrong doer. Both would in one way or the other be making pecuniary advantage, tangible or intangible. Applying same analogy, paving way for illegal allotment to a person not authorized would also be case of pecuniary advantage.
9.14 Conclusion is irresistible. Criminal misconduct was committed by all such public servants in order to attempt to obtain pecuniary advantage for self or for A-5 Sh. G.C. Aggarwal. Thus, offence u/s 15 of PC Act stands made out as the act remained in the territory of attempt only since the land was yet to be allotted.
9.15 PW36 I.O. Manjeet Singh is found well-versed with the intricacies of the case.
9.16 He faced the exhaustive cross-examination fabulously and gave quick answers despite the fact his deposition had been recorded after considerable interregnum. I have minutely seen his testimony as well which remains unshaken, virtually.
9.17 He deposed that he had also visited house of A-5 but did not find any incriminating document. He also volunteered that house of A-5 had already been searched in connection with investigation of other case. Merely because house search of any of the accused did not yield any incriminating material would not mean that accused are innocent. I.O. also deposed that complicity of CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 88 of 90 A-5 G.C. Aggarwal was on the basis of report of GEQD as well as on the basis of other incriminating evidence.
9.18 I must also applaud the manner and level of investigation.
9.19 It was not open and shut case. I.O. Manjeet Singh did excellent job and carried out comprehensive investigation. It was not an easy job as all the concerned officials who had been dealing with the file in RCS office were acting in league with one another and, therefore, it was not simple to crack the conspiracy. GEQD also did a superb job.
9.20 However, I do feel that I.O. should be invariably joined from the point of examination of first witness till conclusion of evidence.
9.21 Director of Prosecution, CBI should give necessary directions in this regard by a general circular in order to ensure that a good investigation culminates in the manner it should be.
9.22 It's time for curtain's call.
9.23 Angle of conspiracy stands proved to the hilt. Complicity of public servants accused is very evident. In so far as it relates to commission of substantive offences by concerned public servants, I do feel that preparation of false verification report and acceptance thereof is covered within the definition of criminal misconduct as well. It becomes very much manifest that all the concerned RCS officials and A-5 G.C. Aggarwal were rubbing elbows with one another. RCS officials were supposed to apply horse sense and they rather completely ignored the basic things and the application in question was entertained without raising any eyebrow. Their acts and omissions are clear pointer towards their complicity and involvement.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 89 of 909.24 In view of my foregoing discussion, I hold all the accused guilty and convict them as under:-
1) A-1 to A-7 are held guilty and convicted u/s 120-B read in conjunction with under section 15 read with sec 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, sec 468 IPC and sec 471IPC, sec 420 IPC read with sec 511 IPC.
2) A-1, A-2, A3, A4, A-6 and A-7 are also held guilty for substantive offences under sec 420 IPC read with sec 511 IPC & also u/s 15 read with sec 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act.
3) A-5 is held guilty for substantive offences under sec 468 IPC and sec 471 IPC and 420 IPC read with sec 511 IPC.
9.25 A copy of this judgment be also sent to the present Registrar of Cooperative Societies in Delhi and also to DDA for their information. A copy be also sent to Director (Prosecution), CBI.
Announced in the open Court on this 14th day of July, 2014.
(MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 90 of 90 CC No. 02/2011 RC S18 2006 E0002 U/s 120B r/w 420/468/471 IPC & U/s 13 (2) r/w 13 (1) (d) & 15 r/w 13 (1) (d) of PC Act CBI Vs. Yogi Raj etc. Friday, July 18 2014 Present: Ms. Jyotsna Sharma Pandey, learned PP for CBI.
A-1 Yogi Raj in person.
A-2 U.S. Bhatnagar, A-3 Ram Nath, A-4 Faiz Mohammad, A-6 P.K. Thirwani with Sh. S.K. Bhatnagar, learned defence counsel.
A-5 Gokul Chand Aggarwal with Sh. S.P. Mehta, learned defence counsel.
A-7 N. Diwakar in person.
1 I have heard Ms. Pandey, learned PP for CBI, learned defence counsels for the convicts and also the convicts.
2 Ms. Pandey has contended that none of the convict deserves any empathy. It has been argued that they all had entered into a criminal conspiracy and all the concerned public servants had abused and misused their public office in order to attempt to obtain unjustified pecuniary advantage for self and/or for convict G.C. Aggarwal. She has also prayed that convict G.C. Aggarwal also cannot be given any reprieve as he was the kingpin, mastermind and also architect of numerous false and forged documents.
3 It has also been argued that all such convicts, barring convict Ram Nath, have already been held guilty in other cases of similar nature and, therefore, also they should be awarded maximum dosage. She has also contended that all such convicts are involved in multiple cases which also disentitles them to earn any compassion.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 91 of 904 From the side of defence, whereas, it has been prayed that they be shown maximum clemency. All the public servants have reiterated that there was no illegal agreement with any private person and they all had merely carried out their official duties with utmost good faith. It has also been claimed that they all had unblemished career and were not indicted at departmental level. It has also been claimed that they have already undergone agony of trial for a considerable period and their conduct during the trial was good and cooperative.
5 From the side of convict G.C. Aggarwal, it has been claimed that he has been made a scapegoat in the present matter and he had never actually represented the society in question and is not liable for the alleged acts.
6 I have heard all the convicts and considered the reasons for light sentence advanced by them. Following chart would show the various compassionate grounds projected from the side of defence:
S. No. Name of convict Compassionate ground cited 1 Yogi Raj i) Unblemished career.
ii) Physically handicapped and cannot walk without support.
iii) Already retired from service.
iv) Remained in judicial custody for approximately 2½ months.
2 Udhay Shankar Bhatnagar i) Unblemished career.
ii) Has to marry off his two daughters.
iii) Already retired from service.
iv) Remained in judicial custody for approximately 6 months.
3 Ram Nath i) Unblemished career.
ii) Had heart surgery and remained bed ridden.
iii) Already retired from service.
iv) Remained in judicial custody for approximately 1 year.
4 Faiz Mohammad i) Unblemished career.
ii) Ill-health.
iii) Already retired from service.
iv) Remained in judicial custody for approximately 11 CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 92 of 90 months.
5 Gokal Chand Aggarwal i) Suffering from brain tumor.
ii) Remained in judicial custody for approximately 9 months.
6 Prahlad Kumar Thirwani i) Unblemished career.
ii) Has to marry off one daughter.
iii) Already retired from service.
iv) Remained in judicial custody for approximately 6 months.
7 Narayan Diwakar i) Unblemished career.
ii) Contributed to civil services for more than 40 years.
iii) Had been a Commissioned Officer for ten years.
iv) Has already undergone heart surgery and knee replacement.
v) Remained in judicial custody for approximately 16 months.
7 Needless to re-emphasize that acts and omissions on the part of public servants were calculated, deliberate and with the object to permit an unauthorized person to strike a goldmine. Naturally, once the land had been eventually allotted, convict G.C. Aggarwal would have minted money as immovable property in and around Delhi against peanuts would have attracted many needy and greedy mortals. He could have and would have made anyone and everyone a member on his terms as the list furnished by him was a bogus one and since the actual society was lying completely dormant, no actual and legitimate member would have had any occasion to raise any grudge or concern. It is also quite palpable that once such land had been allotted to convict G.C. Aggarwal, it would have surely proved to be a windfall even for all such convicted public servants who must be having some unstated but tacit understanding with him. Fortunately, it remained a case of attempted cheating only as the conspiracy got unearthed before the land could be actually allotted at reserve price.
8 Keeping in mind the overall facts & circumstances and also taking stock of aggravating and mitigating circumstances, I sentence all the convicts as under:
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 93 of 90 (i) Yogi Raj
S. Under Section Period of Sentence Fine Amount Sentence in default of
No. (simple payment of fine
imprisonment)
1 420/511 r/w 120-B IPC One year Rs. 5,000/- Three months
2 15 PC Act r/w 120-B IPC One year Rs. 5,000/- Three months
3 468 IPC r/w 120-B IPC One year Rs. 5,000/- Three months
4 471IPC r/w 120-B IPC One year Rs. 5,000/- Three months
S. Substantive Offences/ Period of Sentence Fine Amount Sentence in default of
No. Under Section (simple payment of fine
imprisonment)
1 420/511 IPC One year Rs. 5,000/- Three months
2 15 PC Act One year Rs. 5,000/- Three months
(ii) Udhay Shankar Bhatnagar
S. Under Section Period of Sentence Fine Amount Sentence in default of
No. (simple payment of fine
imprisonment)
1 420/511 r/w 120-B IPC One year Rs. 5,000/- Three months
2 15 PC Act r/w 120-B IPC One year Rs. 5,000/- Three months
3 468 IPC r/w 120-B IPC One year Rs. 5,000/- Three months
4 471IPC r/w 120-B IPC One year Rs. 5,000/- Three months
S. Substantive Offences/ Period of Sentence Fine Amount Sentence in default of
No. Under Section (simple payment of fine
imprisonment)
1 420/511 IPC One year Rs. 5,000/- Three months
2 15 PC Act One year Rs. 5,000/- Three months
(iii) Ram Nath
S. Under Section Period of Sentence Fine Amount Sentence in default of
No. (simple payment of fine
imprisonment)
1 420/511 r/w 120-B IPC One year Rs. 5,000/- Three months
2 15 PC Act r/w 120-B IPC One year Rs. 5,000/- Three months
3 468 IPC r/w 120-B IPC One year Rs. 5,000/- Three months
4 471IPC r/w 120-B IPC One year Rs. 5,000/- Three months
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 94 of 90
S. Substantive Offences/ Period of Sentence Fine Amount Sentence in default of
No. Under Section (simple payment of fine
imprisonment)
1 420/511 IPC One year Rs. 5,000/- Three months
2 15 PC Act One year Rs. 5,000/- Three months
(iv) Faiz Mohammad
S. Under Section Period of Sentence Fine Amount Sentence in default of
No. (simple payment of fine
imprisonment)
1 420/511 r/w 120-B IPC One year Rs. 5,000/- Three months
2 15 PC Act r/w 120-B IPC One year Rs. 5,000/- Three months
3 468 IPC r/w 120-B IPC One year Rs. 5,000/- Three months
4 471IPC r/w 120-B IPC One year Rs. 5,000/- Three months
S. Substantive Offences/ Period of Sentence Fine Amount Sentence in default of
No. Under Section (simple payment of fine
imprisonment
1 420/511 IPC One year Rs. 5,000/- Three months
2 15 PC Act One year Rs. 5,000/- Three months
(v) Prahlad Kumar Thirwani
S. Under Section Period of Sentence Fine Amount Sentence in default of
No. (simple payment of fine
imprisonment
1 420/511 r/w 120-B IPC One year Rs. 5,000/- Three months
2 15 PC Act r/w 120-B IPC One year Rs. 5,000/- Three months
3 468 IPC r/w 120-B IPC One year Rs. 5,000/- Three months
4 471IPC r/w 120-B IPC One year Rs. 5,000/- Three months
S. Substantive Offences/ Period of Sentence Fine Amount Sentence in default of
No. Under Section (simple payment of fine
imprisonment)
1 420/511 IPC One year Rs. 5,000/- Three months
2 15 PC Act One year Rs. 5,000/- Three months
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 95 of 90
(vi) Narayan Diwakar
S. Under Section Period of Sentence Fine Amount Sentence in default of
No. (simple payment of fine
imprisonment)
1 420/511 r/w 120-B IPC One year Rs. 5,000/- Three months
2 15 PC Act r/w 120-B IPC One year Rs. 5,000/- Three months
3 468 IPC r/w 120-B IPC One year Rs. 5,000/- Three months
4 471IPC r/w 120-B IPC One year Rs. 5,000/- Three months
S. Substantive Offences/ Period of Sentence Fine Amount Sentence in default of
No. Under Section (simple payment of fine
imprisonment)
1 420/511 IPC One year Rs. 5,000/- Three months
2 15 PC Act One year Rs. 5,000/- Three months
(vii) G.C. Aggarwal
S. Under Section Period of Sentence Fine Amount Sentence in default of
No. (simple payment of fine
imprisonment)
1 420/511 r/w 120-B IPC One year Rs. 10,000/- Three months
2 15 PC Act r/w 120-B IPC One year Rs. 10,000/- Three months
3 468 IPC r/w 120-B IPC One year Rs. 10,000/- Three months
4 471IPC r/w 120-B IPC One year Rs. 10,000/- Three months
S. Substantive Offences/ Period of Sentence Fine Amount Sentence in default of
No. Under Section (simple payment of fine
imprisonment)
1 468 IPC Three years Rs. 10,000/- Six months
2 471 IPC Three years Rs. 10,000/- Six months
3 420/511 IPC Two years Rs. 10,000/- Six months
9 All the sentences would, however, run concurrently and convicts
would be entitled to benefit of Section 428 Cr.P.C.
10 Since it has also been brought to my notice that convicts have
already been held guilty in similar matter (s) and the sentence awarded therein is CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 96 of 90 lying suspended pending adjudication of appeal (s), a question arises whether this Court should pass any order directing that sentence, as awarded aforesaid in the present case, should also run concurrently with the previous sentence or not. Reference be made to Section 427 Cr.P.C. which provides as under:
(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:
Provided that where a person who had been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.
(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.
11 It becomes apparent that legislative intention is that any subsequent sentence would commence on the expiration of the imprisonment to which any such convict has been previously sentenced and it is only as an exception that Court can direct subsequent sentence to run concurrently with the previous sentence. Keeping in mind the fact that eventually there was no loss to the government as DDA had not parted with the land, I order that sentence passed hereinabove would run concurrently with the previous sentence.
12 All convicts be sent to jail under appropriate warrants to serve the sentence.
13 A copy of judgment and order on sentence be supplied to convicts free of cost.
14 Ahlmad is directed to paginate and book-mark the entire file for digitization purpose.
CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 97 of 9015 File be consigned to Record Room.
Announced in the open Court On this 18th day of July 2014.
(MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 02/2011 CBI Vs. Yogi Raj etc. Page 98 of 90