Delhi District Court
Cbi vs . 1. K. K. Wadhwa (A1) on 4 April, 2012
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 118/11
RC No. 11S/2006/CBI/SCBII/N.Delhi
(Lok Priya Vihar CGHS Ltd.)
CBI Vs. 1. K. K. Wadhwa (A1)
2. Anil Kumar (A2)
3. Sunil Kumar (A3)
4. Devender Pal Singh (A4)
5. Dev Raj (A5)
6. Rajesh Kumar Khatri (A6)
7. Ravi Saluja (A7)
8. Banwari Lal Sharma (A8)
9. R. K. Srivastava (A9)
10. P. N. Manchanda (A10)
11. Krishan Kumar (A11)
.....Accused persons
O R D E R O N C H A R G E:
1.The case of the CBI, in brief, is that Lok Priya Vihar Co operative Group Housing Society (in short 'CGHS') Ltd. registered with Registrar Cooperative Societies (in short 'RCS') on 07/12/1983 vide Registration No. 1033SGH was wound up by RCS on 12/02/1992 for nonfulfillment of certain mandatory conditions under DCS Act. Liquidator was also appointed on CBI Vs. K. K. Wadhwa etc. Page 1/26 (Lok Priya Vihar CGHS Ltd.) 25/07/1995 but no liquidation proceedings took place in this case. After the society was wound up on 12/02/1992, there was no correspondence between the society and the office of RCS for almost nine years. After nine years one K. K. Wadhwa, a Property Dealer having office at Rohini, approached Dev Raj who had formed the above referred society in 1983 and offered to take over the management of the said society. Accused K. K. Wadhwa, thereafter, prepared fake proceedings of the society and forged other relevant documents pertaining to the society and submitted the same in the office of RCS for the revival of the society. Accused Dev Raj and his son accused Rajesh Kumar Khatri prepared back dated entries and obtained resignation of promoter members by misleading them.
2. It is further the case of prosecution that an application dated 05/02/2000 was received from Devender Pal Singh (A4), the President of the Society, for revival of the society. On the application itself, accused R. K. Srivastava (A9), the then RCS, made an endorsement for putting up the same for examination of the matter. It is only thereafter the concerned file of the society was put into motion by noting dated 15/05/2000 of AR (South), P. N. Manchanda (A10). The said noting of AR CBI Vs. K. K. Wadhwa etc. Page 2/26 (Lok Priya Vihar CGHS Ltd.) (South), P. N. Manchanda, culminated into the calling of records of the society for verification and also to know the opinion of the members in the General Body Meeting held on 16/04/2000 which was approved by the then RCS. It is only thereafter the then Secretary of the society, accused Sunil Kumar (A3), approached the office of RCS alongwith records of the society which included the resolution of General Boarding Meeting held on 16/04/2000, proceeding of last election held on 22/08/1999 and accounts statements from 1991 to 2000. On the basis of the documents produced by the society, a proposal was put up by accused P. N. Manchanda (A10), whereby the then RCS was requested to exercise his power u/s 63(3) of DCS Act 1972 to cancel the winding up order dated 12/02/1992. The members of management committee of the society were given an opportunity of being heard by the then RCS, R. K. Srivastava (A9), and after hearing them the proceeding registers were taken on record. For the purpose of verification/examination of the society, members of management committee namely accused D. P. Singh (A4) and Sunil Kumar (A3) produced the membership register. Vide noting dated 19/06/2000, the date on which aforesaid A3 and A4 were present in the office of RCS, accused P. N. CBI Vs. K. K. Wadhwa etc. Page 3/26 (Lok Priya Vihar CGHS Ltd.) Manchanda (A10), after purportedly having gone through the records of the society, proposed cancellation of the order of winding up and revival of the society u/s 63 of the DCS Act. The file was put up to RCS and RCS, R. K. Srivastava (A9), apparently in the presence of aforesaid society's office bearers A3 & A4 and officers of RCS Office JR(S)Krishan Kumar (A11) and AR(S)P. N. Manchanda (A10), passed an order on 22/06/2000 that the request of the society would be considered only after filing of an affidavit by the society stipulating therein that society shall comply with the statutory liabilities in future. The society submitted the affidavit on very same day and on the same day AR(S), accused P. N. Manchanda (A10) also recommended the cancellation of winding up order dated 12/02/1992. The JR(S), Krishan Kumar (A11), asked the AR, P. N. Manchanda (A10), on 26/06/2000 to put up the draft order. R. K. Srivastava (A9), the then RCS, simply approved the said recommendation of AR(S), accused P. N. Manchanda (A10), on 28/06/2000 without exercising his power for inspection of the society or calling for the general body meeting/management committee meeting.
3. The society after cancellation of winding up order had CBI Vs. K. K. Wadhwa etc. Page 4/26 (Lok Priya Vihar CGHS Ltd.) applied for approval of freeze list of the members for sending it to DDA for allotment of land to society in accordance with the strength of Members. For this purpose the society submitted a list of 105 members and also requested the RCS office for approval of enrollment/resignations of the members. This request of the society was dealt with by accused P. N. Manchanda (A10), the then AR (South). On 02/08/2000, accused Sunil Kumar (A3), the Secretary of the Society, produced the original records for verification and the records were verified by Dealing Clerk in the Office of RCS, who also put up a detailed note on the direction of AR (South) vide his noting dated 3082000 and on the basis of this note, the list of 105 members was prepared. Accused P.N. Manchanda also put up a note to DR (S), B. M. Sethi, stating therein the previous history of the society. Besides this, it is also mentioned that records relating to resignation/enrollment have been verified and recommended for approval of the list of 105 members. This recommendation was simply forwarded by the DR(S), B. M. Sethi, and the JR (S), Krishan Kumar, to the RCS, R. K. Srivastava, for approval without raising any objection. The note dated 05/09/2000 of R. K. Srivastava, the then RCS, regarding the permissibility of the adoption of earlier management CBI Vs. K. K. Wadhwa etc. Page 5/26 (Lok Priya Vihar CGHS Ltd.) committee decisions by existing management committee has been replied to by accused Krishan Kumar the then JR (A11), in affirmative with a plea that once the society has been revived, then management committee in a fresh resolution like dated 23/07/2000 can rectify the resignation and enrollment done during the period of liquidation by stating that there is no legal hitch in such a decision. However, there was no meeting of management committee and as the proceeding dated 23/07/2000 has been found false, accused R. K. Srivastava, the then RCS, simply acted on the recommendation of JR(S), Krishan Kumar, without exercising his power u/s 54 of DCS Act and also by ignoring the fact that there was no correspondence by the society with RCS Office from the date of winding up order and receipt of the request for revival of the society and he finally approved the freeze list. RCS further ignored the rules 105 of DCS Act which prescribed the deemed termination of liquidation proceedings after three years of appointment of liquidator.
4. Investigation further disclosed that accused persons in conspiracy with each other have shown resignation of about 42 members from 1986 to 2000 out of which 35 members have CBI Vs. K. K. Wadhwa etc. Page 6/26 (Lok Priya Vihar CGHS Ltd.) been shown resigned from 1990 to 1995 when the society was not functioning i.e. during the wound up period. Out of these members, 29 members have been shown resigned in the year 1994 thereby creating corresponding vacancies which were filled up by society apparently in 1994, but in fact, these enrollments have taken place during 1999 to 2000 just prior to revival of the society.
5. Investigation further disclosed that the list sent by society to RCS for sending it to DDA contained the name of some fictitious members who have denied to become the members of the aforesaid society at any point of time. This reflected that office bearers of the society i.e. Sunil Kumar (A3) and Devender Pal Singh (A4) in connivance with other accused persons, misrepresented the DDA with a view to get the land allotted in accordance with the strength of members which also included fictitious members mentioned in the freeze list which was recommended by A10 and A11 and finally approved by A9. The malafide intention of the aforesaid society is reflected from the fact that after allotment of land by DDA, management committee of the society consisting of accused persons namely accused Sunil Kumar, Devender Pal Singh and Ravi Saluja have CBI Vs. K. K. Wadhwa etc. Page 7/26 (Lok Priya Vihar CGHS Ltd.) shown the resignations of the fictitious members with a view to adjust new members with an oblique motive. The freeze list approved by RCS was sent to DDA for allotment of land and finally the land was allotted to society. A payment of Rs. 2,19,18,000/ was made by the society from the A/c No. 02SB 11029178 opened at the Centurian Bank of Punjab Ltd. Karol Bagh, New Delhi. Accused persons Devender Pal Singh (A4), Sunil Kumar (A3) and Ravi Saluja (A7) were signatories to the said account. Accused no.8 Banwari Lal Sharma, had provided loan of Rs.30 lakhs to society for the land.
6. It is the case of prosecution that accused Krishan Kumar Wadhwa (A1), accused Anil Kumar (A2), accused Sunil Kumar (A3), accused Devender Pal Singh (A4), accused Dev Raj (A5), accused Rajesh Kumar Khatri (A6) and accused Ravi Saluja (A7) in conspiracy with RCS officials viz. Accused R. K. Srivastava (A9) and accused P. N. Manchanda (A10) got the said society revived fraudulently. Pursuant to said fraudulent revival, land was also allotted to the society by DDA. After completing investigation, chargesheet was filed in the Court against the accused persons for committing various offences under Indian Penal Code, 1860 (in short 'IPC') and CBI Vs. K. K. Wadhwa etc. Page 8/26 (Lok Priya Vihar CGHS Ltd.) Prevention of Corruption Act 1988 (in short 'PC Act').
7. I have heard Dr. Padmini Singh, Ld. PP for the CBI.
Sh. Vijay Babbar, Ld. Counsel for accused Dev Raj (A5) and accused Rajesh Kumar Khatri (A6).
Sh. R. K. Jain, Ld. Counsel for accused Banwari Lal Sharma (A8).
Dr. Sushil Kumar Gupta, Ld. Counsel for accused R.K. Srivastava (A9).
Sh. R.P. Shukla, Ld. Counsel for accused Krishan Kumar (A11).
I have also gone through the written submissions filed on behalf of accused no. 1 K. K. Wadhwa, accused no. 4. Devender Pal Singh, accused no. 7 Ravi Saluja and accused no. 8 Banwari Lal Sharma.
8. On behalf of accused no. 1 K. K. Wadhwa, accused no. 4 Devender Pal Singh and accused No. 7 Ravi Saluja, it is contended that there is nothing on record against accused nos. 1, 4 & 7 as they were not a part of criminal conspiracy. There is no documentary evidence to connect the above mentioned accused persons with the revival of Lok Priya Vihar CGHS. No CBI Vs. K. K. Wadhwa etc. Page 9/26 (Lok Priya Vihar CGHS Ltd.) role has been assigned to these accused persons to show their involvement in the revival of the said Society. As such, all the above mentioned accused persons have claimed that they are liable to be discharged.
9. It is contended on behalf of accused no. 8 Banwari Lal Sharma that accused no. 8 is/was neither member of the Lok Priya Vihar CGHS nor he is/was its beneficiary. Accused no. 8 had no role to play in the revival of the Society and for the said reason he is not named in para first at page 11 of the charge sheet. One witness namely PW1 Rajesh Aggarwal has stated that at the request of accused K. K. Wadhwa, he had provided some amount to the said Society which was returned to him later on. PW1 has further stated that accused no. 8 had also provided an amount of Rs. 30 lacs to the said Society for depositing the same with the DDA. The loan amount of Rs. 30 lacs given by accused no. 8 to the Society was returned to him (accused no.8) along with nominal interest. There is nothing on record that there was any conspiracy of accused no. 8 with other accused persons in the revival of the Society. It is only PW1 Rajesh Aggarwal who has stated that a loan of Rs. 30 lacs was given to the Society. However, there is no explanation from the CBI Vs. K. K. Wadhwa etc. Page 10/26 (Lok Priya Vihar CGHS Ltd.) side of CBI as to why PW1 Rajesh Aggarwal has been made witness whereas accused no. 8 who had given the loan on the asking of PW1 Rajesh Aggarwal has been made an accused. In such circumstances, the investigation of the present case by the CBI is totally misconceived, faulty and is to be ignored. Accordingly to learned counsel, the accused no. 8, therefore, is liable to be discharged.
10. Sh. R.P. Shukla, Ld. counsel for accused Krishan Kumar contended that accused is a DANIC officer and was posted as Joint Registrar in the office of RCS at the time of alleged offences. There is nothing on record to suggest that there was a part of conspiracy. Being the joint registrar in the office of RCS, the correspondence made to Registrar was routed through him and the accused was bound to forward the same and was not empowered by any provision of law to act independently. There was no mechanism to ascertain whether the members were existing or not as the list submitted by the society is to be taken on record. In these circumstances, the note on the note sheet by accused Krishan Kumar merely recommended the approval of the freeze list which according to the CBI contained non existing members. According to Ld. Counsel, accused Krishan CBI Vs. K. K. Wadhwa etc. Page 11/26 (Lok Priya Vihar CGHS Ltd.) Kumar is liable to be discharged. In support of his contention ld. counsel has relied upon judgments - R. Ramachandran Nair v. Deputy Supdt. 2011(4) SCC 395; Rukmini v. Vijaya 2008(4) JCC 2879; Devi Dutt v. State 2002(2) JCC 907 Mohan Singh v. State of Bihar (2011) 9 SCC 271; State of Karnataka v. L. Muniswamy AIR 1977 SC 1489; Dilawar Balu Kurane v. State of Maharashtra 2002(1) JCC 172; Niranjan Singh Karam Singh Punjabi, v. Jitendra Bhimraj Bija AIR 1990 SC 1962, Vijayan alias Rajan v. State of Kerala AIR 1999 SC 1086 and S. Arul Raja v. State of Tamil Nadu (2010) 8 SCC 233.
11. Dr. Sushil Kumar Aggarwal, ld. counsel for accused R.K. Srivastava contended that accused has been falsely implicated in this case. At the most negligence can be attributed to him but no charge can be framed as the accused had no criminal intention or knowledge that the false and bogus documents were submitted in the office of RCS. According to him ingredients of Section 120(A) IPC are not attracted against the accused as there can be said to be no meeting of mind. No nexus has been shown between the accused and the other coaccused persons. Accused R.K. Srivastava was discharging quasi judicial functions and whatever he did was in discharge of his duties. CBI Vs. K. K. Wadhwa etc. Page 12/26 (Lok Priya Vihar CGHS Ltd.) According to ld. counsel accused R.K. Srivastava is liable to discharged in this case.
12. Accused Anil Kumar and Sunil Kumar in their written submissions submitted that no charge u/s 468/471 IPC is made out against them merely on the basis of GEQD opinion which is baseless having no value in the eyes of law. It is further submitted that ingredients of Section 419/420/120(A) IPC are attracted against the accused persons.
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.
14. According to accused R.K. Srivastava, accused P.N. Manchanda and accused Krishan Kumar, they have done nothing wrong while discharging their functions. 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. They have pointed out following illegalities: CBI Vs. K. K. Wadhwa etc. Page 13/26
(Lok Priya Vihar CGHS Ltd.)
(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 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.
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 CBI Vs. K. K. Wadhwa etc. Page 14/26 (Lok Priya Vihar CGHS Ltd.) 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 notification is/was necessary.
17. 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 CBI Vs. K. K. Wadhwa etc. Page 15/26 (Lok Priya Vihar CGHS Ltd.) heard as well as previous sanction of RCS. The offence alleged to have been committed by the accused is punishable under the provisions of Special law and, therefore, the provisions of Indian penal Code, being general law, cannot be invoked. In respect of this contention, accused have relied upon judgments State of Maharashtra Vs. Laljit Rajshi Shah & Ors. AIR 2000 SC 937; and Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd. & Ors. 2007(5) SCALE 366.
18. 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.
19. 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, CBI Vs. K. K. Wadhwa etc. Page 16/26 (Lok Priya Vihar CGHS Ltd.) 1972 which provides "The provisions of the Companies Act, 1956 shall not apply to Cooperative Societies Act". But such restriction/prohibition is nowhere mentioned in DCS Act, 1972 debarring the applicability of IPC or PC Act under which the accused persons have been chargesheeted. Thus, DCS Act does not impose any bar to take resort to the provisions of General Criminal Laws.
20. 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 R.K. Srivastava, P.N. Manchanda and Krishan Kumar followed the procedure with a view to give colour to their acts. Following procedure prescribed under the Act would not validate their acts when they were actuated with conspiracy to cheat the RCS and office of DDA.
21. 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 CBI Vs. K. K. Wadhwa etc. Page 17/26 (Lok Priya Vihar CGHS Ltd.) the Civil Writ Petition No. 10066/2004 passed order dated 2.8.05 directing the CBI to conduct the thorough investigation in the matter relating to 135 CGHS. In pursuance of the aforesaid order passed by the Delhi High Court in exercise of its inherent powers, an inquiry was conducted by CBI which disclosed commission of cognizable offence by the accused persons in the matter of dishonest and fraudulent revival of society. Therefore, CBI rightly lodged the FIR in the present case. While registering the FIR, the acts and omissions on the part of the accused persons and disclosure of commission of cognizable offences by them were detailed in the FIR. The FIR registered by CBI fully satisfies the ingredients of Section 154 Cr.P.C. 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.
22. 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 CBI Vs. K. K. Wadhwa etc. Page 18/26 (Lok Priya Vihar CGHS Ltd.) complaint received from a complainant/individual is not a ground to discharge the accused.
23. Sh. R.P. Shukla, Advocate has relied upon judgment Dilawar Balu Kurane (supra). There is no dispute regarding the legal proposition laid down in the said judgment. It is settled law if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused. Thus, the aforesaid judgment is of no help to the accused as from the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against the accused of having entered into a criminal conspiracy to cheat the office of RCS and DDA. The judgment relied upon by accused Krishan Kumar are not applicable to the facts of the present case.
24. 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 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 CBI Vs. K. K. Wadhwa etc. Page 19/26 (Lok Priya Vihar CGHS Ltd.) material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy.
25. In Judgment John Pandian Vs. State, 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 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.
CBI Vs. K. K. Wadhwa etc. Page 20/26 (Lok Priya Vihar CGHS Ltd.)
26. 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.
27. 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 (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 CBI Vs. K. K. Wadhwa etc. Page 21/26 (Lok Priya Vihar CGHS Ltd.) 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.
28. In the present case, accused No.8 Banwari Lal Sharma has been prosecuted for substantive offences u/s 420 IPC as well as for offences u/s 120(B) read with Sec. 420/467/468/471 IPC read with Sec. 13(2) read with Sec. 13(1)(d) of the PC Act with other accused persons. The FIR was registered in the present case after conducting preliminary enquiry by the CBI. However, the name of accused no.8 Banwari Lal does not find mentioned in the FIR. From the record it is crystal clear that there is neither documentary nor oral evidence to show that accused no. 8 Banwari Lal Sharma was a part of conspiracy in the fraudulent revival of the society. The only evidence against the accused no.8 Banwari Lal Sharma is that of PW2 Rajesh Aggarwal s/o Amrit Lal Aggarwal. PW2 Rajesh Aggarwal in his statement dated 24.7.07 u/s161 Cr.P.C has stated as under:
"I also state that at the request of Sh. KK Wadhwa I had provided some amount to the society which was returned to me later on.
I also state that I had requested Sh. KK Wadhwa to enroll Sh. Rohit Aggarwal, my brother in law as a member in the society. I also stated that Shri Banwari Lal Sharma who was given the contract for construction of the society had also provided an amount of Rs. 30 lakhs to the society for CBI Vs. K. K. Wadhwa etc. Page 22/26 (Lok Priya Vihar CGHS Ltd.) depositing the same as the loan of land."(underlined by me for supplying emphasis)
29. PW2 has not mentioned the exact loan amount provided by him to the society while he has given the specific figure of Rs. 30 lacs as loan granted by accused no.8 Banwari Lal to the society. PW2 who had given loan to the society has been made a witness whereas accused no.8 who had also given loan which was returned lateron has been made an accused by the CBI. In the facts and circumstances of present case, the act of accused no.8 Banwari Lal in granting loan to society can not be termed to have been done dishonestly and, therefore, he was not a party or a conspirator in alleged offences. There is no connecting link that would warrant an inference that accused no.8 Banwari Lal was acting in criminal conspiracy with other accused. Thus, I find no ground for framing of charge u/s 120(B) IPC also against accused no.8 Banwari Lal Sharma.
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 a prima facie case against the accused has been made out or not. In Prafulla (supra), it has also been held CBI Vs. K. K. Wadhwa etc. Page 23/26 (Lok Priya Vihar CGHS Ltd.) 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 Banwari Lal Sharma rather than in favour of the prosecution and, consequently, accused Banwari Lal Sharma 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 Banwari Lal Sharma 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 Krishan Kumar Wadhwa (A1), accused Anil Kumar (A2), accused Sunil CBI Vs. K. K. Wadhwa etc. Page 24/26 (Lok Priya Vihar CGHS Ltd.) Kumar (A3), accused Devender Pal Singh (A4), accused Dev Raj (A5), accused Rajesh Kumar Khatri (A6), accused Ravi Saluja (A7), accused R.K. Srivastava (A9), accused P.N. Manchanda (A10) and accused Krishan Kumar (A11) for committing offences u/S 120B IPC r/w Ss. 420/467/468/471 IPC r/w S. 13(12) r/w S. 13(1)(d) of P.C. Act, 1988.
(ii) Primafacie case is made out against accused K.K. Wadhwa (A1), accused Anil Kumar (A2), accused Sunil Kumar (A3), accused Devender Pal Singh (A4), accused Rajesh Kumar Khatri (A6), accused Devraj (A5) and accused Ravi Saluja (A7) for committing substantive offence u/S 420 IPC.
(iii) Primafacie case is made out against accused K.K.Wadhwa (A1), accused Ravi Saluja (A7), accused Devender Pal Singh (A4) and accused Devraj (A5) for committing substantive offences u/S 467 & 468 IPC.
(iv) Primafacie case is made out against accused Devender Pal Singh (A4) for committing substantive offence u/S 471 IPC.
(v) Primafacie case is made out against accused R.K. CBI Vs. K. K. Wadhwa etc. Page 25/26 (Lok Priya Vihar CGHS Ltd.) Srivastava, Registrar (A9), accused P.N. Manchanda Assistant Registrar (A10) and accused Krishan Kumar (A11) for committing substantive offences u/S 13(2) r/w S. 13(2) r/w S. 13(1)(d) of PC Act, 1988.
Announced in the open Court (PRAVEEN KUMAR) on dated 04.04.2012 Special Judge, PC Act CBI3, Rohini Court Complex Delhi CBI Vs. K. K. Wadhwa etc. Page 26/26 (Lok Priya Vihar CGHS Ltd.)