Delhi District Court
Cbi vs Narayan Diwakar on 13 December, 2011
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 20/11
RC No. 01/06/EOUIX/CBI
CBI
Versus
1.Narayan Diwakar S/o Late Sh. C Lal R/o G30, Masjid Moth, Greater KailashII, New Delhi38.
2. Yogi Raj S/o Sh. Girdhari Lal R/o AP77, Shalimar Bagh, Delhi.
3. Niranjan Singh S/o Late Sh. Babu Lal R/o 309, Karkardooma, Delhi Govt Flats, Delhi92.
4. Faiz Mohammad S/o Late Sh Gulam Mohd.
R/o 4794, Bara Hindu Rao, Sadar Bazar, Pahari Dheeraj, Delhi6.
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5. Srichand S/o Sh. Hari Singh R/o 274A, Pocket C, Mayur Vihar PhaseII, Delhi91.
6. Anna Wankhede S/o Sh. P Arunji Wankhede R/o 148/E/A2 PhaseIII, Mayur Vihar, Delhi91.
7. Subhash Chandra Gupta S/o Sh. Ram Kumar Gupta R/o 427, Behra Enclave, Paschim Vihar, New Delhi.
8. Kuldeep Goel S/o Late Jagmohan Gupta R/o F1U, 45, Pitampura, Delhi.
9. Rakesh Kumar Jain S/o Khem Chand Jain R/o A168, Surya Nagar, Ghaziabad, UP. (Granted Pardon vide order dated 12.3.2007)
10. R N Yadav S/o Sh. Chandgi Ram R/o Village & Post Khera, Electric Pole No.8, New Delhi43. ...........Accused persons (NCERT CGHS) CBI Vs. Narayan Diwakar & others Page 2/16 (NCERT CGHS) O R D E R O N C H A R G E:
1. The case of the CBI, in brief, is that NCERT Corporation Cooperative Group Housing Society (CGHS) was registered with office of Registrar of Cooperative Societies (RCS), Delhi vide registration no. 145 (GH) having its address at NIE Campus, Shri Aurbindo Marg, New Delhi. Sh. Ravinder Singh Ahluwalia was its one of the promoter members in early 1971 with 31 other members. Sh. Gauri Shankar Mathur functioned as the Secretary of the society in 1976 when the society applied for allotment of land under Group Housing Scheme to the DDA.
The list of 105 members was enclosed with the application for allotment of land. The society had also deposited Rs. 5,000/ as earnest money towards allotment of land as required by DDA. The DDA had offered 2.8 acres of land in Pitam Pura vide letter dated 31.3.1977 and also asked the society to deposit 25% of cost of land by 15.04.1977. Since the DDA could not offer land to the society nearby office campus of the society, hence members of the society did not accept the offer of land. The payment towards cost of land was not deposited by the society and it became nonfunctional. The society was also not able to achieve its objectives, consequently, it was put under liquidation by Sh. Ashok Bakshi, the then Deputy Registrar, vide order CBI Vs. Narayan Diwakar & others Page 3/16 (NCERT CGHS) dated 23.03.1979.
2. In the year 2003 with a dishonest intention to obtain land from DDA at a concessional rate, accused Narayan Diwakar, accused Srichand, accused Anna Wankhede, accused Faiz Mohd., accused Yogi Raj, accused Niranjan Singh, accused Subhash Chandra Gupta, accused Kuldeep Goel, accused Rakesh Kumar Jain and accused R.N. Yadav hatched a criminal conspiracy to revive the society fraudulently on the basis of false, forged and fabricated documents. In furtherance of the said conspiracy, accused Srichand and accused Anna Wankhede prepared forged and fabricated documents viz. affidavits of 125 members, membership application forms, receipt of membership fee, account/audit papers for 32 years, minutes of the meetings (proceeding register), election proceedings etc. An application dated 04.04.2003 which was purported to be signed by C.P. Malhotra, Smt. Tripta Sareen and S.C. Sharma, the President, the Treasurer and the Secretary respectively of the society. Accused Niranjan Singh, the then Dealing Assistant, processed the application for revival without pointing out that file was without any action from last 27 years. Accused Niranjan Singh submitted his note dated 04.04.2003 to appoint CBI Vs. Narayan Diwakar & others Page 4/16 (NCERT CGHS) accused Faiz Mohd. as the inspecting officer. Accused Faiz Mohd. submitted false inspection report detailing therein that he had visited the office of society, met Sh. C.P. Malhotra, the President of the society and verified the records. The false and fabricated report of accused Faiz Mohd. was submitted by accused Niranjan Singh through his note dated 17.04.2003 to accused Yogi Raj, the then Assistant Registrar, who put it for approval before accused Narayan Diwakar, the then RCS. Accused Narayan Diwakar revived the society on 02.06.2003 without ensuring proper audit and election proceedings. Accused R.N. Yadav, the then Jr. Auditor, had prepared fabricated audit report in respect the society for the last 32 years i.e from 1971 to 2003 and placed them in the relevant file. Thereafter, on 7.10.2003 the list of 125 members was sent to DDA for allotment of land. A new set of Committee members were formed by accused Subhash Chand, accused Rakesh Jain and accused Kuldeep Goel who had purchased the society for Rs. 60 lacs from accused Sri Chand. They prepared forged affidavits of members of the society and were instrumental in controlling the society, enrolling the new members and to furnish their affidavits to the office of RCS. CBI Vs. Narayan Diwakar & others Page 5/16 (NCERT CGHS)
3. Accused Narayan Diwakar had not taken any steps to see as to why file of the society was lying dormant for a long 27 years. He had not bothered to glance in the file to find the infirmity therein. He relied upon false and fabricated reports besides the fabricated documents which were furnished by and on behalf 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).
4. I have heard Sh. A.P. Singh, Ld. PP for CBI and Ms. Shalini Jain, Ld. Spl. PP for CBI;
Sh. Abhishek Prasad, Ld. Counsel for accused R.N. Yadav (A9) and accused Anna Wankhede (A6);
Sh. Sanjay Sehgal, Ld. Counsel for accused Subhash Gupta (A7);
Sh. S.K. Bhatnagar, Ld. Counsel for accused Faiz Mohd. (A4);
Sh. R.P. Shukla, Ld. Counsel for accused Yogi Raj (A2), accused Niranjan Singh (A3) and accused Shri Chand (A5) and Sh. Sudesh Goyal, Ld. Counsel for accused Kuldeep CBI Vs. Narayan Diwakar & others Page 6/16 (NCERT CGHS) Goyal (A8). I have also gone through the written submissions filed on behalf of accused Narayan Diwakar (A1)
5. Sh. Sanjay Sehgal, Ld. Counsel for accused Subhash Gupta (A7) contended that there is nothing on record to suggest that society was purchased for Rs. 60 lacs. According to him ingredients of Section 420 IPC are not attracted to the present case. Ld. Counsel further contended that there is nothing on record to suggest that accused Subhash Gupta forged the documents or used the forged documents as genuine documents and, therefore, no offence u/S 468 or 471 IPC is made out against him. According to Ld. Counsel, accused Subhash Chander Gupta is liable to be discharged in this case.
6. On the other hand Ld. PP for CBI conceded that no prima facie case U/s 468 IPC is made out against accused Subhash Chander Gupta. However, according to Ld. PP there is sufficient material on record for framing charge against the accused Subhash Chander Gupta for the offence u/Ss. 420/511 and 471 IPC. Ld. PP has drawn the attention of this court to the statements of PW63 and PW64 recorded by the CBI u/S 161 Cr.P.C.
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7. Sh. Abhishek Prasad, Ld. Counsel for accused Anna Wankhede (A6) and accused R.N. Yadav (A9) contended that no pecuniary loss was caused to anybody and, thus, ingredients of Section 420 IPC are not attracted to the present case. Ld. counsel has drawn the attention of this court towards page 16 of the chargesheet wherein name of the accused R.N. Yadav is not mentioned to have conspired in the year 2003 with other co accused persons to fraudulently revive NCERT CGHS on the basis of forged and fabricated documents. According to Ld. counsel, accused R.N.Yadav is liable to be discharged in this case.
8. Sh. R.P. Shukla Ld. counsel for accused No. 2, 3 & 5 conceded that prima facie case against accused no. 5 is made out. However, he contended that no prima facie case against accused no.2 & 3 is made out. According to Ld. counsel accused no. 2 & 3 were Assistant Registrar and Dealing Assistant respectively and they did not abuse their official position. It is not the case of the prosecution that false and forged documents were in the knowledge of Accused No.2 and Accused No.3. According to him, CBI has wrongly alleged in the chargesheet at page 16 that coaccused persons conspired CBI Vs. Narayan Diwakar & others Page 8/16 (NCERT CGHS) with each other with dishonest intention to obtain land from the DDA at a concessional rate. In support of this contention Ld. counsel has relied upon judgments Federation of Coop. Group Housing Society vs. Union of India & Ors., 1993(26) DRJ 156; State of Maharashtra Vs. Som Nath Thapa, AIR 1996 SC 1722; Renu vij Vs. State, 2011(3) JCC 2225; Vijayan Vs. K.S. Sadanandan, AIR 1999 SC 1086 and State vs. Navjot Sandhu, 2005(II) SCC 600.
9. 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.
10. 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 CBI Vs. Narayan Diwakar & others Page 9/16 (NCERT CGHS) 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.
11. 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 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.
12. 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 CBI Vs. Narayan Diwakar & others Page 10/16 (NCERT CGHS) 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 co operative 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 notification is/was necessary.
13. All the accused have raised the contention that the DCS Act, is a complete self contained statute and, therefore, provisions of the Indian Penal Code cannot be invoked. The DCS Act, 1972 provides for a well defined system of addressing the issues relating to various private co operative societies and it contains the provisions of fine, appeal, punishment and, as such, the application of provisions of the IPC by the CBI is wholly illegal. It is further contended that the matter is covered under the provision of Section 82(3) of DCS Act which completely debars the prosecution without giving the opportunity of being heard as well as previous sanction of RCS. The offence alleged CBI Vs. Narayan Diwakar & others Page 11/16 (NCERT CGHS) to have been committed by the accused is punishable under the provisions of Special law and, therefore, the provisions of Indian penal Code, being general law, cannot be invoked. In respect of this contention, accused have relied upon judgments State of Maharashtra Vs. Laljit Rajshi Shah & Ors. AIR 2000 SC 937; and Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd. & Ors. 2007(5) SCALE 366.
14. 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.
15. I have gone through the judgments cited by the accused. The cited judgments are not applicable to the facts of the present case. Wherever the Legislature in its wisdom deemed fit, they have restricted/prohibited the applicability of other Acts which could be seen from the provision of section 91 of DCS Act, 1972 which provides "The provisions of the Companies Act, 1956 shall not apply to Cooperative Societies Act". But such restriction/prohibition is CBI Vs. Narayan Diwakar & others Page 12/16 (NCERT CGHS) nowhere mentioned in DCS Act, 1972 debarring the applicability of IPC or PC Act under which the accused persons have been charge sheeted. Thus, DCS Act does not impose any bar to take resort to the provisions of General Criminal Laws.
16. 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.
17. The facts and circumstances of the present case primafacie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. Bogus documents were used. The modus operandi of reconstruction of documents was adopted. The accused Narayan Diwakar followed the procedure with a view to give colour to his acts. Following procedure prescribed under the Act would not validate his acts when they were actuated with conspiracy to cheat the RCS and office of DDA. From the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons of having entered into a criminal conspiracy to cheat the office of RCS and DDA. The judgments relied upon by Ld. CBI Vs. Narayan Diwakar & others Page 13/16 (NCERT CGHS) Counsel for the accused persons are not applicable to the facts of the present case.
18. It has been further contended on behalf of the accused persons 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, prima facie case of cheating is also made out against the accused persons. 19 . 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 CBI Vs. Narayan Diwakar & others Page 14/16 (NCERT CGHS) persons in the matter of dishonest and fraudulent revival of society. Therefore, CBI rightly lodged the FIR in the present case. While registering the FIR, the acts and omissions on the part of the accused persons and disclosure of commission of cognizable offences by them were detailed in the FIR. The FIR registered by CBI fully satisfies the ingredients of Section 154 Cr.PC. It is the settled law that once an investigation is directed into alleged offences by the Court, two conditions are necessary to commence the investigation:
(i) The police should have reason to suspect the commission of cognizable offence and;
(ii) A Police Officer should subjectively satisfy himself to the existence of 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.
20. From the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons of having entered into a criminal conspiracy to cheat the CBI Vs. Narayan Diwakar & others Page 15/16 (NCERT CGHS) Office of RCS and DDA.
21. In view of the above discussion, I am of the opinion that:
(i) Primafacie case is made out against accused Narayan Diwakar (A1), Yogi Raj (A2), Niranjan Singh (A3), Faiz Mohd. (A4), Srichand (A5), Anna Wankhade (A6), Subhash Gupta (A7), Kuldeep Goel (A8) and R N Yadav (A10) for committing offences u/S. 120B r/w U/s 420/468/471 IPC and u/S. 13 (2) r/w S. 13 (1) (d) of PC Act, 1988.
(ii) Primafacie case is made out against accused Narayan Diwakar (A1), accused Yogi Raj (A2), accused Niranjan Singh (A3), accused Faiz Mohd. (A4) and accused R.N. Yadav (A10) u/S. 15 of the PC Act, 1988;
(iii) Primafacie case is made out against accused Faiz Mohd. (A4) u/S 468/471 IPC;
(iv) Primafacie case is made out against accused Srichand (A5) and accused Anna Wankhade (A6) u/Ss. 420/511/ 468/471 IPC and
(v) Primafacie case is made out against accused Subhash Gupta (A7) and accused Kuldeep Goel (A8) u/S. 420/511 IPC.
Announced today in open (PRAVEEN KUMAR)
court on 13.12.2011. Special Judge (PC Act) CBIIII,
Rohini Courts, Delhi.
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