Delhi District Court
Cbi Vs. Narain Diwakar & Ors. Page 17/24 vs . on 7 December, 2011
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 06/11
RC No. 3(E)/2006/S18/EOUIV/N.Delhi
In re:
CBI
Vs.
1.Narayan Diwakar S/o Sh. Chhati Lal R/o G30, Masjid Moth, Greater KailashII, New Delhi.
2. Yogi Raj S/o Girdhari Lal R/o AP77, Shalimar Bagh, Delhi88.
3. Niranjan Singh S/o Sh. Babu Lal R/o 309, Karkardooma, Delhi Govt Flats,
4. Subhash Dabas S/o Sh. Suraj Mal R/o B59, Vinoba Kunj, Sector9, Rohini, Delhi85.
5. Vinod Kumar Gupta CBI Vs. Narain Diwakar & Ors. Page 1/24 (Inalsa CGHS) S/o Late Sh. Nanak Chand Gupta R/o C46/Z3, Dilshad Garden, Delhi95.
6. Narender Singh Khatri S/o Late Lal Singh Khatri R/o 89B, Shakti KhandI, Indirapuram, Ghaziabad (U.P)
7. Dharmender Singh Rana S/o Sh. Nahar Singh R/o 522, Neelkanth Apartment, Sector13, Rohini, Delhi.
(Since expired) .........accused persons
(INALSA CGHS)
O R D E R O N C H A R G E:
1. The case of the prosecution, in brief, is that Inalsa Cooperative Group Housing Society (CGHS) was registered on 22.12.83 vide registration No. 1130 (GH) with 102 members having its registered office at 19, K.G.Marg, New Delhi. As the society failed to fulfill its statutory requirements, it was wound up by RCS office vide order dated 27.11.92.
2. During the year 2002, accused Dharmendra Singh Rana some how obtained documents of the society with an intention CBI Vs. Narain Diwakar & Ors. Page 2/24 (Inalsa CGHS) to sell it to a builder. In order to complete documents of the society, he contacted accused Vinod Kumar Gupta who was an expert in documentation work of societies. Thereafter, he alongwith accused Vinod Kumar Gupta contacted accused Subhash Dabas, a builder, who was interested in purchase of the society. It was agreed between them that affairs of the society would be managed by accused Subhash Dabas. On getting records, accused Vinod Kumar Gupta prepared false minutes of the managing committee meetings from 23.07.85 to 24.11.02 in his own handwriting which fact has been confirmed by GEQD. Besides preparation of managing committee meeting proceedings, accused Vinod Kumar Gupta had also forged signatures of various members viz. Anil Kumar, L.K.Charya, B.L. Ahuja, B.K.Swaheny, R. Kapoor, Smt. Indu, S.Tiwari, S.K.Bindal, Madho Prasad in the proceedings. He had also shown in the proceedings of various dates that various members had resigned from membership of the society. For that purpose he had prepared false resignation letters and mentioned those resignations in proceeding register of the society. During investigation, some members of the society denied to have submitted resignation letters. They also denied to have signed or written resignation letters. It also came to light that accused CBI Vs. Narain Diwakar & Ors. Page 3/24 (Inalsa CGHS) Vinod Kumar Gupta and accused Dharmender Singh Rana dishonestly and fraudulently inserted names of aforesaid members in the proceeding register.
3. During investigation, it was revealed that accused Vinod Kumar Gupta prepared false proceeding register in which first proceeding dated 24.11.02 was recorded by him. As per said proceeding, L.K.Charya was purportedly shown to have been appointed as an Election Officer by the managing committee for holding the election. It was falsely shown in minutes of meeting by accused Vinod Kumar Gupta that out of 105 members, 73 members attended that meeting. However, no such election was held by L.K. Charya. Accused Vinod Kumar Gupta falsely mentioned in the proceedings that Sh. Subhash Dabas, the President, Sh. Sandeep Grover, the Vice President, Sh. V.K. Gupta, the member, Sh. Manmohan Sapra, the M.C. Member, Jai Prakash, the M.C member, Mrs. Rosy Dabas, the M.C. Member and Mrs. Suman, the M.C. Member, were elected as office bearers of the society.
4. Accused Vinod Kumar Gupta, the alleged Secretary of the society, moved an application dated 28.11.02 signed by him CBI Vs. Narain Diwakar & Ors. Page 4/24 (Inalsa CGHS) before RCS office for revival of the society. Accused Vinod Kumar Gupta knowing fully well that documents viz. Photocopy of proceedings of general body meeting held on 24.11.02, list of members for approval, agenda notice, election programme, list of resigned members, list of enrolled members and accounts statements for the year 1987 to 2002 were fake and forged, submitted those documents in RCS office for revival of the society. While submitting application for revival, address of the society was shown to have been shifted to S203, Vikas Chambers, D Block, Central Market, Prashant Vihar, Rohini, New Delhi which premises was owned by accused Dharmender Singh Rana.
5. Accused Niranjan Singh, the Dealing Assistant, fraudulently and dishonestly processed the file on receipt of revival application on the basis of false, forged and fabricated documents. He did not suggest for appointment of an inspector for verification of genuineness of members and address of the society but recommended it to competent authority with a request for revival and submitted file to accused Yogi Raj, the AR, for further action. Investigation also discloses that accused Niranjan Singh showed undue favour to the society and CBI Vs. Narain Diwakar & Ors. Page 5/24 (Inalsa CGHS) submitted a false note dated 20.03.03 wherein he mentioned that list of members of the society be approved by RCS and it be forwarded to DDA through AR (Policy). The said note was submitted without confirming the compliance of audit objection.
6. Accused Yogi Raj, knowing well that report prepared/submitted by accused Niranjan Singh was inadequate, dishonestly accepted the same and forwarded it to RCS for revival of the society. He deliberately ignored audit objections raised by Sh. R.N.Yadav who was appointed as Auditor for audit of the society. Had he considered audit objections, he would not have forwarded list of members to DDA for allotment of land. Investigation further disclosed that accused Narayan Diwakar, the RCS, while exercising his powers contained under section 63(3) of the Act abused his official position with an intention to facilitate revival of the society and revived the society on 05.02.03 on the basis of false, forged and fabricated documents without getting any inspection report regarding verification of members and genuineness of address of the society. He ordered that election and audit of the society be got completed within the stipulated period vide order dated 05.02.03. However, he did not ensure compliance of his own CBI Vs. Narain Diwakar & Ors. Page 6/24 (Inalsa CGHS) order as to whether audit and election of the society were carried out or not. He also did not ensure whether freeze list sent to DDA for allotment of land was approved or not. In order to facilitate revival of the society, he deliberately appointed his PA, accused Narender Singh Khatri, as an election officer to conduct election of the society who submitted a false report in this regard.
7. Investigation further reveals that accused Narender Singh Khatri allowed accused Vinod Kumar Gupta to make forged signatures in the name of various members knowing well that no such member had attended special general body meeting on 16.03.03. GEQD has confirmed that minutes of meeting were bogus and fabricated by accused N.S Khatri. Investigation further reveals that after above mentioned forged election/special general body meeting, accused Subhash Dabas took over full control of affairs of the society. Minutes of managing committee dated 30.04.03, 18.05.03, 15.06.03, 27.07.03, 31.08.03, 21.09,03 and 19.10.03 were recorded by Smt. Rosy Dabas, wife of accused Subhash Dabas. Initially the society was functioning from premises of accused Dharmender Singh Rana and, thereafter, address of the society was changed CBI Vs. Narain Diwakar & Ors. Page 7/24 (Inalsa CGHS) to residence to accused Subhash Dabas. Hence, accused Narayan Diwakar in collusion with other accused persons got the society revived and approved its freeze list to cheat DDA for allotment of land in favour of the society. After the completion of investigation, chargesheet was filed in the court against all the accused persons under the provisions of Indian Penal Code, 1860 (IPC) and Prevention of Corruption Act, 1988 (P.C. Act).
8. I have heard Sh. Vivek Gupta, Ld. Spl. PP for CBI;
Sh. Ajay Burman, Ld. Counsel for accused Subhash Dabas (A3);
Sh. Naved Khand, Ld. Counsel for accused Vinod Kumar Gupta (A4) and Sh. R.P. Shukla, Ld. Counsel for accused Yogi Raj (A2), accused Narender Singh Khatri(A5) and accused Niranjan Singh (A7).
I have also gone through the written submissions filed on behalf of accused Narayan Diwakar and accused Vinod Kumar Gupta.
9. Sh. Ajay Burman, Ld. Counsel for accused Subhash Dabas, contended that there is nothing on record to suggest that CBI Vs. Narain Diwakar & Ors. Page 8/24 (Inalsa CGHS) accused Subhash Dabas conspired with other coaccused persons to commit the offences as has been alleged by the CBI. Ld. Counsel has drawn the attention of this court to certain documents in support of his contention. According to Ld. Counsel, accused Subhash Dabas applied for membership of the Inalsa CGHS vide application (D13 page 151) and it bears the genuine signatures of accused Subhash Dabas. However, the said application has been tempered with as the age of accused Subhash Dabas has been changed. When accused Subhash Dabas applied for membership of the said society, the application (D13 Page 151) was undated but lateron the date was inserted and the same is not in the handwriting of accused Subhash Dabas. Ld. Counsel further contended that had the accused Subhash Dabas been in conspiracy with other co accused persons, he would not have filled in his mobile number and MTNL telephone number starting with digit 2 as the mobile phones were not in vogue in the year 1988 and the MTNL Nos. were not starting with digit 2 during the relevant period. It all shows that accused Subhash Dabas applied for membership of the said society without any dishonest intention. Ld. Counsel further contended that there is no meeting of mind between the accused persons for doing an unlawful act. The said society was CBI Vs. Narain Diwakar & Ors. Page 9/24 (Inalsa CGHS) revived on 5.2.2003 and all the documents prior to revival of the society except the application for membership (D13 Page
151) do not bear the signatures of accused Subhash Dabas.
10. Ld. Counsel has drawn the attention of this court towards the document (D11) (152/C) i.e. managing committee meeting held on 24.11.2002, affidavit (D11) (166/C), list of resigned members (D11) (156/C), list of members enrolled after submission of first list (D11) (159/C), balancesheets (D11) (123/C to 137/C), revised list of members (D21) (D233/C to 236/C) and revised list of members for approval (D15) (237/C to 240/C). According to Ld. Counsel, all the above said documents bear the forged signatures of accused Subhash Dabas. According to him, had accused Subhash Dabas been in conspiracy, the aforesaid documents would have been bearing his genuine signatures. Ld. Counsel has also drawn the attention of this court to document (D20) i.e. the Managing Committee Meeting held on 20.4.2003. According to him after the revival, accused Subhash Dabas was made secretary of Inalsa CGHS Ltd. and the aforesaid document bears his genuine signatures. However, he resigned from the post of secretary and his resignation was accepted on 17.10.2004.
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11. On the other hand, Ld. Spl. PP for CBI contended that conspiracy existed between the accused Subhash Dabas and the other coaccused persons prior to the revival of the society on 5.2.2003 and, as such, prima facie case U/s 420 r/w Sec. 511 IPC and 471 IPC is made out against the accused Subhash Dabas. According to him, accused Subhash Dabas used false documents as the to revive the society and, as such, ingredients of Section 468/471 IPC are attracted to the present case.
12. The Ld. counsel for accused Vinod Kumar Gupta (A4) contended that membership of the society is not a property so long as full money has not been paid towards the cost of land and towards the cost of construction by the members of the society and merely paying a membership fee of Rs. 100/ does not grant any right to the member as of the property. Ld. Counsel has relied upon the judgment A.P. Narang Vs. CBI (Manu)/DE/0121/2011 in support of his contention.
13. I have considered the submissions of counsel for the accused persons and Ld. PP for CBI. I have also gone through the judgments cited by them.
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14. According to accused Narayan Diwakar, he has done nothing wrong while discharging his functions as RCS. RCS does not deal with land as the same is the subject matter of DDA who allots the land in accordance with the Rules framed under DDA Act, 1957 and Disposal of Development Nazul Land Rules, 1981. CBI has committed various illegalities while investigating the matter. He placed reliance upon the judgment titled as Dr. R.R.Kishore v. CBI, 2006 VIII AD (Delhi) 545, wherein it was held that if illegal investigation is brought to the notice of the Trial Court at the initial stage, then the court ought not to proceed with the trial but should direct reinvestigation in order to cure the defect in the investigation. Accused Narayan Diwakar has pointed out following illegalities:
(a) Consent of the State was not taken as required U/s 6 of the DSPE Act, 1946.
(b) Absence of notification U/s 3 of DSPE Act.
(c) Registration of case under various provisions of IPC instead of DCS Act which is a Special Act.
15. The contention of accused Narayan Diwakar that the consent of State was not taken is misconceived in the facts and circumstances of the present case. The investigation was referred to CBI in the present matter by the High Court. Once the order for investigation of a case to CBI is passed by the CBI Vs. Narain Diwakar & Ors. Page 12/24 (Inalsa CGHS) High Court under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a matter for investigation to CBI. Though not referred to and relied upon, for taking view I am supported with the order dated 17.9.2007 passed by Hon'ble Mr. Justice Sh. S.N.Dhingra in Criminal MC No. 2784 of 2007.
16. It is contended that the noncompliance of Sec.3 of DSPE Act, 1946 vitiates the entire investigation. As per Sec. 3 of DSPE Act, 1946, the Central Government makes notification in the official gazette to specify the offences or classes of offences which are to be investigated by Delhi Special Police Establishment. It is contended that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government u/s 3 of the Act and such offences as notified are mentioned in DSPE Act, 1946. The offences covered by Sec. 3 of the said Act do not include the offences under the Cooperative laws. Thus, the investigation done by the CBI for the cooperative societies is in violation of Sec.3 as it has no jurisdiction to conduct the investigation. In my opinion the Offences mentioned in the chargesheet are all notified offences U/s 3 of the DSPE Act and, therefore, no fresh CBI Vs. Narain Diwakar & Ors. Page 13/24 (Inalsa CGHS) notification is/was necessary.
17. Accused Narayan Diwakar has also placed reliance upon order dated 20.7.2011 passed by Special Judge3, CBI, Patiala House Courts, New Delhi in the matter State (CBI) Vs. M.S. Chauhan. I have gone through the said order. It was passed by Ld. Special Judge in the facts and circumstances of the case before him. Even otherwise, the said order dated 20.7.2011 is not binding upon this court.
18. All the accused have raised the contention that the DCS Act is a complete self contained statute and, therefore, provisions of the Indian Penal Code cannot be invoked. The DCS Act, 1972 provides for a well defined system of addressing the issues relating to various private cooperative societies and it contains the provisions of fine, appeal, punishment and, as such, the application of provisions of the IPC by the CBI is wholly illegal. It is further contended that the matter is covered under the provision of Section 82(3) of DCS Act which completely debars the prosecution without giving the opportunity of being heard as well as previous sanction of RCS. The offence alleged to have been committed by the accused is punishable under the CBI Vs. Narain Diwakar & Ors. Page 14/24 (Inalsa CGHS) provisions of Special law and, therefore, the provisions of Indian penal Code, being general law, cannot be invoked. In support of this contention, accused have relied upon judgments State of Maharashtra Vs. Laljit Rajshi Shah & Ors., AIR 2000 SC 937; and Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd. & Ors., 2007(5) SCALE 366.
19. On the other hand, it is contended by Ld. PP for CBI that provisions under DCS Act and DCS Rules are for administration of Cooperative Group Housing Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. According to him, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law.
20. I have gone through the judgments cited by the accused.
The cited judgments are not applicable to the facts of the present case. Wherever the Legislature in its wisdom deemed fit, they have restricted/prohibited the applicability of other Acts which could be seen from the provision of section 91 of DCS Act, 1972 which provides "The provisions of the Companies Act, 1956 shall not apply to Cooperative Societies Act". But such CBI Vs. Narain Diwakar & Ors. Page 15/24 (Inalsa CGHS) restriction/prohibition is nowhere mentioned in DCS Act, 1972 debarring the applicability of IPC or PC Act under which the accused persons have been chargesheeted. Thus, DCS Act does not impose any bar to take resort to the provisions of General Criminal Laws.
21. According to accused Narayan Diwakar, he was discharging his quasi judicial functions and, as such, he cannot be prosecuted. According to him, under the provisions of Section 40 & 41 of the DCS Act, there is a presumption of genuineness of the documents filed in support of the application.
22. The facts and circumstances of the present case prima facie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. Bogus documents were used. The modus operandi of reconstruction of documents was adopted. The accused Narayan Diwakar followed the procedure with a view to give colour to his acts. Following procedure prescribed under the Act would not validate his acts when they were actuated with conspiracy to cheat the RCS and office of DDA.
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23. It has been further contended on behalf of the accused that no land was allotted to the society and under these circumstances it can not be said that DDA was cheated. Narayan Diwakar and his subordinate staff/coaccused were bound to protect the interest of office of RCS. They in furtherance of the conspiracy entered into between them, cheated the institution of office of Registrar Cooperative Societies by doing act of revival of the society and they forwarded the letter to DDA for allotment of land. Therefore, primafacie case of cheating is also made out.
24. Further, it is contended that there is no complainant in this case and, thus, the registration of FIR in the present case does not satisfy the ingredients of Section 154 Cr.PC. The contention is devoid of any merit. Our High Court of Delhi while hearing the Civil Writ Petition No. 10066/2004 passed order dated 2.8.05 directing the CBI to conduct the thorough investigation in the matter relating to 135 CGHS. In pursuance of the aforesaid order passed by the Delhi High Court in exercise of its inherent powers, an inquiry was conducted by CBI which disclosed commission of cognizable offence by the accused persons in the matter of dishonest and fraudulent revival of CBI Vs. Narain Diwakar & Ors. Page 17/24 (Inalsa CGHS) society. Therefore, CBI rightly lodged the FIR in the present case. While registering the FIR, the acts and omissions on the part of the accused persons and disclosure of commission of cognizable offences by them were detailed in the FIR. The FIR registered by CBI fully satisfies the ingredients of Section 154 Cr.PC. It is the settled law that once an investigation is directed into alleged offences by the Court, two conditions are necessary to commence the investigation:
(i) The police should have reason to suspect the commission of cognizable offence and;
(ii) A Police Officer should subjectively satisfy himself to the existence of sufficient grounds to enter into investigation.
These two conditions were duly satisfied at the stage of lodging of FIR in the present case by the CBI before entering into investigation. Thus, the present FIR was rightly registered by the CBI and just because the FIR was not lodged on a complaint received from a complainant/individual is not a ground to discharge the accused.
25. In Judgment Vijyan @ Rajan v. State of Kerela, AIR 1999 Supreme Court 1086, it was held by the Apex Court as under:
To bring home the charge of conspiracy within the ambit of Section 120B of the Indian Penal Code it is CBI Vs. Narain Diwakar & Ors. Page 18/24 (Inalsa CGHS) necessary to establish that there was an agreement between the parties for doing an unlawful act. It is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy.
26. In Judgment John Pandian & Ors. Vs. State Rep. By Inspector of police, Tamil Nadu, 2011(1) LRC 18(SC), it was held by the Apex Court as under:
It is significant at this stage to note the observations in V.C. Shukla (cited supra) wherein it was laid that in order to prove criminal conspiracy, there must be evidence direct or circumstances to show that there was an agreement between two or more persons to commit an offence. It was further held that there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of the offence and where the factum of conspiracy is sought to be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Relying on that, Pasayat, J. in Esher Singh v. State of A.P., 2004(11) SCC 585 observed that the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the CBI Vs. Narain Diwakar & Ors. Page 19/24 (Inalsa CGHS) commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy.
27. The Apex court in a case State of NCT of Delhi Vs. Navjot Sandhu @ Afsan Guru 2005(3) JCC 1404 held that to constitute the offence of conspiracy, mere knowledge is not sufficient and there should be a meeting of minds of two or more persons for doing any illegal act or an act by illegal means . From the facts in hand, some act more than mere knowledge should be attributable to the alleged accused.
28. In State of Maharashtra, v. Som Nath Thapa, AIR 1996 Supreme Court 1744, charge against accused Abu was that he had done the act of booking the tickets of the persons named in the charge; and this was done from his own funds. It was contended on behalf of the state that the financial assistance by accused Abu would attract the mischief of Section 3(3) of TADA. Apex court discharged accused Abu and observed as under:
We may state that as framing of charge affects a person's liberty substantially, as pointed out in Muniswamy's case CBI Vs. Narain Diwakar & Ors. Page 20/24 (Inalsa CGHS) (AIR 1977 SC 1489) (supra), the materials on record must satisfy the mind of the Court framing the charge that the commission of offence by the accused in question was probable. We do not find a conclusion can reasonably be drawn only from the above noted incriminating fact pressed into service by the prosecution that the appellant might have abetted the offences in question. There being no material to frame individual charge under Section 3(3) of TADA, we are of the opinion that the general charge qua this appellant has also to fail, as the only overt act attributed to him is the aforesaid activity of booking tickets.
29. In the present case the Application for membership (D13) (Page151) bearing the genuine signatures of accused Subhash Dabas was tempered with as regards the age and the date of application. The court can take judicial notice of the fact that MTNL Nos. were not starting with digit 2 in the year 1988. All the documents submitted with the RCS's office prior to the revival of the society on 5.2.2003 do not bear the genuine signatures of accused Subhash Dabas. In fact all the documents bearing forged signatures of accused Subhash Dabas for the revival of the society were submitted by accused Vinod Kumar Gupta in the year 2002. Had accused Subhash Dabas been in conspiracy with other accused persons, the documents viz. (D11) (152/C); D11 (166/C); (D11) (156/C); (D11) (159/C); (D11) (123/C to 137/C); (D21) (D233/C to 236/C) and (D15) (237/C to 240/C) used by coaccused Vinod Kumar Gupta for revival of the CBI Vs. Narain Diwakar & Ors. Page 21/24 (Inalsa CGHS) society would have been bearing his genuine signatures. Merely because several persons who were/are related to accused Subhash Dabas applied for membership of the Inalsa CGHS at his instance, this circumstance by itself is not sufficient to frame charge against accused Subhash Dabas. There is nothing on record that accused Subhash Dabas forged the documents or used the forged documents as genuine for the revival of the Inalsa CGHS. Thus, ingredients of Sections 468 & 471 IPC are not attracted against him. The document i.e false minutes of Managing Committee meetings from 23.07.1985 to 24.11.20002 are not in the handwriting of accused Subhash Dabas and this fact has been confirmed by GEQD. In such circumstances, the act of accused Subhash Dabas in applying for membership of Inalsa CGHS cannot be termed to have been done dishonestly and, therefore, he was not a party or a conspirator in the alleged offences. There is no connecting link that would warrant an inference that accused Subhash Dabas was acting in criminal conspiracy with other accused. Thus, I find no ground for framing of charge u/s 120B IPC also against accused Subhash Dabas.
30. Our Apex Court in Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4, has held that the Court has power to sift and weigh the evidence - although for the limited purpose of finding out whether CBI Vs. Narain Diwakar & Ors. Page 22/24 (Inalsa CGHS) a prima facie case against the accused has been made out or not. In Prafulla (supra), it has also been held that where materials placed before the Court disclosed grave suspicion against the accused which has not been properly explained, the Court would be fully justified in framing a charge and proceeding with the trial. By and large, however, if two views are equally possible and the judge is satisfied that the evidence produced before him gives rise to some suspicion, but not grave suspicion against the accused, he will be fully within his right to discharge the accused. In the facts and circumstances of the present case, this court is of the view that the case has emerged in favour of the accused Subhash Dabas rather than in favour of the prosecution and, consequently, accused Subhash Dabas is discharged.
31. From the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons except accused Subhash Dabas of having entered into a criminal conspiracy to cheat the Office of RCS and DDA.
32. In view of the above discussion, I am of the opinion that:
(i) Primafacie case is made out against accused Narayan Diwakar (A1), accused Yogi Raj (A2), accused Niranjan Singh (A3), accused Vinod Kumar Gupta (A5) and accused CBI Vs. Narain Diwakar & Ors. Page 23/24 (Inalsa CGHS) Narender Singh Khatri (A6) for committing offences U/s 120 B IPC r/w Ss. 420/468/471 IPC and u/S. 13 (2) r/w S. 13 (1) (d) of the P.C. Act, 1988.
(ii) Primafacie case is made out against accused Narayan Diwakar (A1), accused Yogi Raj (A2), accused Niranjan Singh (A3) and accused Narender Singh (A6) for committing offences u/S 15 r/w Sec. 13(1)(d) of PC Act, 1988;
(iii) Primafacie case is made out against accused Vinod Kumar Gupta (A5) for committing offences u/S 420/511, 468, 471 IPC.
Announced in the open court (PRAVEEN KUMAR)
on dated 7.12.2011 Special Judge, PC Act
CBI3, Rohini Courts,Delhi.
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(Inalsa CGHS)