Cbi Vs. Priya Jain And Others Page 18/3 vs Priya Jain And Others Page 21/3 on 19 November, 2012

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Delhi District Court

Cbi Vs. Priya Jain And Others Page 18/3 vs Priya Jain And Others Page 21/3 on 19 November, 2012

IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.

CBI No.79/11
RC No.19 (D)/2006/EOUVII/CBI/New Delhi
(Nav Sarv Priya CGHS)

CBI

Versus

1. Priya Jain W/o Sh. J K Jain
2. Praveen Jain S/o Late Sh. N R Jain
3. Ashwani Sharma @ Ashwani Kumar
S/o Late Sh. R K Sharma
4. J K Jain S/o Sh. Anand Kumar Jain
5. Virender Kaushik S/o Late Sh. Tara Chand Kaushik
6. Jagjit Singh S/o Sh. Baldev Singh
7. Ashutosh Pant S/o Sh. Mahesh Chander Pant
8. P K Thirwani S/o Late Sh. Moti Ram Thirwani
9. M Mishra S/o Sh. Raj Narain Mishra
10. Mir Singh S/o Sh. Nathu Singh
11. Charan Singh S/o Sh. Mir Singh
.....Accused Persons
ORDER ON CHARGE:

FACTS :

1. The case of the CBI, in brief, is that Nav Sarva Priya Co

operative Group Housing Society Ltd. (in short 'CGHS') was

registered with Registrar Cooperative Societies (in short 'RCS') on

10.01.1984 vide registration No. 1293 (GH) having address at 98,

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(Nav Sarv Priya CGHS)
Samai Pur, Delhi. This society was started by a group of teachers of

Samai Pur, Delhi. As the society did not meet statutory requirements,

the same was put under liquidation vide order dated 11.04.1991. It is

stated that during the years 1970 to 1980 a large number of societies

were registered with the office of RCS which became dormant as

DDA was unable to allot land due to paucity of the same or the land

offered for allotment was not acceptable to the society. The members

of such societies lost interest in the affairs of the society over a

passage of time as the waiting period seemed endless and perhaps they

arranged alternative accommodations for living. Consequently, a large

number of such cooperative societies became nonfunctional and

wound up by RCS and the society in question i.e Nav Sarva Priya

CGHS was one of those societies.

2. Investigation revealed that after about nine years of the

winding up of the Nav Sarva Priya CGHS, accused Praveen Kumar

Jain claiming himself to be the Secretary of the said society filed an

application dated 28.12.1999 before RCS and requested for its revival.

The society was revived on 19.06.2000 by the then RCS. Accused

Priya Jain was President of the society at the time of revival of the

society. During investigation, the promoter members of Nav Sarva

Priya CGHS denied their signatures on the resignations. Investigation

also revealed that accused Praveen Kumar Jain got the society revived

on the basis of the false/forged documents prepared by coaccused
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(Nav Sarv Priya CGHS)
Ashwani Sharma after a period of nine years of the order of

liquidation. Investigation further revealed that the documents

pertaining to the society had been received by accused Praveen Kumar

Jain and accused Priya Jain and society was fraudulently revived

without the knowledge of the promoter members of the society whose

forged resignations were put on the records for enrollment of the new

members. In the process, forged resignations were taken on record

and accepted and in their place family members/close relatives of

accused Praveen Kumar Jain and accused Priya Jain namely Smt Usha

Jain, Jyoti Jain, Anand Kumar Jain etc. were enrolled in the society

and, subsequently, they became members of the management

committee of the society.

3. Investigation further revealed that accused J K Jain

purchased the documents of the society for a sum of Rs.1.10 lakhs

from Ram Bir Singh and S C Gola through one M M Sharma who was

an advocate. Accused J K Jain connived with accused Virender

Kaushik and Ashwani Kumar to prepare the forged documents of the

society and used these forged documents to revive the society

unauthorisedly in connivance with accused M Mishra, the then dealing

assistant in RCS. Accused J K Jain in connivance with accused

Ashwani Kumar and accused Virender Kaushik used forged papers to

file application for revival of the society on 28.12.1999 in the name of

accused Praveen Jain. On receipt of request for revival of Nav Sarva
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(Nav Sarv Priya CGHS)
Priya CGHS, accused M Mishra who was in contact with accused

Ashwani Kumar put up a note proposing to cancel the winding up

order of the society and also to approve the list of 105 members.

Accused M Mishra also mentioned in his note that records of the

society were found complete; that the society had completed the

statutory obligation; that the audit is completed upto 199899; that the

society had produced records relating to membership to be sent to the

DDA for allotment of land and the records of the membership of 105

members have been verified. Accused M Mishra intentionally

concealed the fact that Pratap Singh, the original Secretary of the

society, had appealed to the Lt. Governor of Delhi in the year 1991 to

cancel the liquidation orders for which reply from the office of Lt.

Governor was awaited and he also failed to inquire from H K Sharma,

the previous liquidator, about the fate of the members of the said

society.

4. Investigation further revealed that it was accused Praveen

Jain who appeared with the affidavit in which FSL has given its

opinion as positive on the signatures of accused Priya Jain who had

signed as President of the society, the other signature of the Secretary

was signed by accused Virender Kaushik (as Praveen Jain). Accused

Priya Jain being the sister of accused Praveen Jain was well aware

with his signatures. She allowed the forged signatures of accused

Praveen Jain (forged by Virender Kaushik, an employee of her
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husband accused J K Jain) to be submitted to the RCS office on

08.06.2000.

5. Investigation further revealed that accused Charan Singh,

accused M Singh and accused P K Thirwani have audited the accounts

of the society for the year 199198, 200102 and 19992000

respectively. Audit was conducted on the basis of documents made

available by accused J K Jain, accused Virender Kaushik and accused

Praveen Jain. In the statement of PW Naveen Kaushik, it has been

revealed that accused P K Thirwani has signed the audit report in the

office of accused Ashwani Sharma and written the name of Praveen

Jain, Priya Jain and Jyoti Jain in his handwriting. The proceeding

Kaushik and he had shown 20 members to have resigned in the

meeting. Accused Virender Kaushik also forged the signatures of five

members i.e Abhay Singh, Shiv Lal, Ved Prakash, K C Yadav and

Jagdish Rai. None of the said five members had ever resigned and they

were not aware of the fact that they have been shown as resigned.

Accused Virender Kaushik also filled in and signed the application

forms of 20 new members except Priya Jain. Accused Virender

Kaushik again manipulated the proceedings dated 11.03.1991 and

04.04.1991. It was also found that the society was further sold to

accused Jagjit Singh.

6. Investigation further revealed that accused Ashwani
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(Nav Sarv Priya CGHS)
Kumar had signed the election report without any appointment. He has

also written the proceeding register on different dates. In his statement

PW Naveen Kaushik has stated that accused Ashutosh Pant was the

person who wrote the body of the forged affidavits of 20 members of

the Jain family and also got the audit done by accused P K Thirwani

who has signed as Priya Jain, Praveen Jain and Jyoti Jain. Accused P

K Thirwani prepared the false audit report on the instructions of

accused Ashwani Kumar. After completing investigation, charge sheet

was filed in the Court against the accused persons for committing

various offences under Indian Penal Code 1860 (IPC) and Prevention

of Corruption Act 1988 (PC Act).

APPEARANCES :

7. I have heard Ld. PP for CBI;

Sh. Subhash Buttan, Ld. Counsel for A1 Priya Jain;

Sh. Sunil Kumar, Ld. Counsel for A2 Praveen Jain;

Sh. Harsh Khanna, Ld. Counsel for A3 Ashwani Sharma and A7

Ashutosh Pant;

Sh. Sh. Subhash Gulati, Ld. Counsel for A4 J K Jain;

Sh. Suresh Kumar Sharma, Ld. Counsel for A5 Virender Kaushik;

Sh. Jaswinder Singh, Ld. Counsel for A6 Jagjit Singh;

Sh. S K Bhatnagar, Ld. Counsel for accused A8 P K Thirwani, A10

Mir Singh & A11 Charan Singh and

Sh. R. P. Shukla, Ld. Counsel for accused A9 M. Mishra.
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(Nav Sarv Priya CGHS)
I have also gone through the written submissions filed on behalf of

A6 Jagjit Singh, A3 Ashwani Sharma and A7 Ashutosh Pant.

CONTENTIONS :

8. Ld. PP for CBI contended that prima facie case is made

out against all the accused persons. Accused Priya Jain is the wife of

accused J K Jain and FSL report is against her. She acted as a

President of the society in question. Ld. PP has drawn the attention of

this court towards files D8 and D29 (Q 803 and Q 804). As regards

accused Praveen Jain there is oral evidence that he introduced himself

as Secretary before the RCS. She further contended that A8 P K

Thirwani, A10 Mir Singh and A11 Charan Singh conducted fake

audit of the society. A3 Ashwani Sharma prepared false documents

for the revival of the society and FSL report has confirmed the same.

A4 J K Jain purchased the society through PW61 Madan Mohan

Sharma and there is oral evidence to this effect. A5 Virender Kaushik

and A6 Jagjit Singh forged and fabricated the documents and the FSL

report is against them. Ld. PP has drawn the attention of this court

towards documents D2, D22 and D28. According to her, there is

sufficient evidence on record for framing charge against all the

accused persons.

9. Sh. S C Buttan, Ld. Counsel for A1 Priya Jain,

contended that Q803 and Q804 are the photocopies and FSL report

has been obtained on the said photocopies which is not permissible
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(Nav Sarv Priya CGHS)
under law. Ld. Counsel has drawn the attention of this court towards

file D8 page 223 (Q803 and Q804). According to him, the

application was neither filled in by accused Priya Jain nor signed by

her in as much as the signatures appearing at Q803 and Q804 differ

from each other. The name of the husband of accused Priya Jain and

her address have been wrongly mentioned in the said application.

There is no date mentioned beneath the signatures of accused Priya

Jain. No membership subscription receipt has been produced by the

prosecution that accused Priya Jain ever paid the amount to the society

for becoming its member. Ld. Counsel further contended that accused

Priya Jain was not the beneficiary. Neither any document relating to

the society nor any money was recovered from her. She did not

participate in any proceeding. There is no oral evidence against her.

The affidavit bearing forged signatures of accused Priya Jain is a joint

affidavit by two persons and, thus, an affidavit signed by two persons

has no legal sanctity. PW61 M M Sharma has not named accused

Priya Jain in his statement u/s 161 Cr.PC. He has categorically stated

in those statements that accused Priya Jain was not known to him. No

meeting of mind has been shown among the accused persons. The

documents were forged for implicating her in the present case. In

support of his contentions, Ld. Counsel has relied upon judgment

Abdul Gaffar Vs. Collector of Customs, 1993 ECR 521 Tri Delhi.

10. Sh. Sunil Kumar, Ld. Counsel for A2 Praveen Jain,
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(Nav Sarv Priya CGHS)
contended that none of the document bears the genuine signatures of

accused Praveen Jain. PW3 Narain Singh and PW4 Krishan Kumar

in their statements u/s 161 Cr.PC have stated about accused Praveen

Jain having appeared before the RCS on the basis of his photograph

affixed on the passport being shown to them. According to Ld.

Counsel, such type of method adopted by the CBI during investigation

of the present case is not permissible in law. The TIP of A2 Praveen

Jain should have been conducted by the CBI to fix his identity which

they have not done and it is the settled law that a person cannot be

identified on the basis of a photograph shown to the witnesses and, as

such, such type of identification is inadmissible under law. It is

contended that accused Praveen Jain never appeared before the RCS.

Sh. Umesh Singh Nimesh has not been made a witness in this case for

the reason and best known to the prosecution. There is nothing on

record to connect A2 Praveen Jain with the alleged offences and,

thus, he is liable to be discharged in this case. In support of his

contentions, Ld. Counsel has relied upon judgments John Pandian Vs.

State, 2010 (13) Scale 13; Sandeep Vats Vs. State, 2006 (3) JCC 1790;

Navrang Pal Vs. State, 2005 (2) JCC 599; Union of India Vs. Prafulla

Kumar Samal, 1979 (3) SCC 4; State Vs. L. Muniswamy, AIR 1977 SC

1489 and Vijayan @ Rajan Vs. State, AIR 1999 SC 1086.

11. Sh. Subhash Gulati, Ld. Counsel for A4 J K Jain,

contended that there are contradictions in the statements of PW61 M
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(Nav Sarv Priya CGHS)
M Sharma, PW6 Rambir Singh and PW7 S C Gola recorded under

Sections 161 and 164 Cr.PC. The statement of PW61 M M Sharma

cannot be relied upon/considered by the court as the said statement

amounts to disclosure statement only. According to the Ld. Counsel,

assuming for the sake of arguments that the alleged sale and purchase

of the society in question was illegal, then M M Sharma, Pratap Singh,

S C Gola and Rambir Singh should have been made accused in this

case. Prosecution has failed to explain as to why alleged sellers of the

society in question have not been made accused in this case for the

reasons best known to them. It is next contended that even if sale and

purchase of the society was illegal, there being relationship of client

and advocate between PW61 M M Sharma and accused J K Jain and,

as such, the statement of M M Sharma implicating accused J K Jain is

barred u/s 126 of the Indian Evidence Act, 1872 being the privileged

communication between an advocate and his client. In support of his

contentions, Ld. Counsel has relied upon judgments The

Superintendent, High Court Vs. The Registrar, Tamil Nadu

Information Commission, MANU/TN/0016/2010 and Larsen &

Toubro Limited vs. Prime Displays (P) Ltd., 2003 (114) Comp. Cas.

141 Bom.

12. Sh. S K Bhatnagar, Ld. Counsel for accused A8 P K

Thirwani, A10 Mir Singh and A11 Charan Singh, contended that FIR

was lodged by the CBI after conducting preliminary inquiry but these
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(Nav Sarv Priya CGHS)
accused persons were not named in the FIR. Accused did not violate

the provisions of DCS Act/Rules. It is not the case of the prosecution

that accused conducted false audit. Accused P K Thirwani raised six

objections as have been mentioned at page 19 of file D33 but no

investigation on this aspect was conducted by the CBI. Next, Ld.

Counsel contended that accused Mir Singh conducted audit for the

year 200102 i.e after the revival of the society as the society was

revived on 19.6.2000 and, thus, it cannot be said that he conducted

false audit of the society. The registrar who revived the society has

been made a witness in this case. No sanctions U/s 197 Cr.PC were

obtained for these accused though they were discharging their official

duties. According to Ld. Counsel, these accused are liable to be

discharged in this case.

13. Sh. Jaswinder Singh, Ld. Counsel for A6 Jagjit Singh,

contended that no land was allotted in this case by the DDA and, as

such, there was no pecuniary benefit to anybody. There is nothing

against A6 in the entire charge sheet. PWs S C Gola, Madan Mohan

and Pratap Singh have made contradictory statements. The charge

sheet was only filed following the directions of the High Court of

Delhi. At page 15 of the charge sheet it is mentioned that builders in

collusion with officials of RCS highjacked the entire cooperative

movements but the same is not supported by any documentary

evidence on record. There is nothing on record that the society in
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(Nav Sarv Priya CGHS)
question was allegedly purchased by A6. Ld. Counsel has relied upon

recent judgment of full bench of our High Court titled as 'Sapan

Haldar Vs. State', 2012 VIII AD (Del) 533 in support of his contention

that the signatures of an accused cannot be taken by force for

comparison. According to Ld. Counsel, in view of the judgment

Sapan Haldar (supra) the FSL report against A6 is of no value and

the same cannot be considered by the court against A6. Ld. Counsel

vehemently contended that A6 is liable to be discharged in this case.

14. Sh. Suresh Kumar Sharma, Ld. Counsel for A5 Virender

Kaushik, contended that except FSL report there is nothing against

A5. Ld. Counsel has drawn the attention of this court towards page 17

last para of the charge sheet. According to him, there is no oral

statement of any of the prosecution witnesses that A5 forged the

documents and only on the basis of opinion of the handwriting expert,

no conviction can be made by the court. There is nothing on record

that A5 had obtained any pecuniary benefit. No fake and forged

documents were recovered from his possession. There is no evidence

that A5 had any connection with the other members of the society.

Ld. Counsel prayed that A5 be discharged in this case. In support of

his contentions, Ld. Counsel has relied upon judgments Sandeep Vats

(supra) and Sapan Haldar (supra).

15. Sh. Harsh Khanna, Ld. Counsel for A3 Ashwani Sharma

and A7 Ashutosh Pant contended that in the FIR, only IPC offences
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have been mentioned. Neither offences under P.C. Act nor Section 420

IPC were mentioned in the FIR at the time of its registration. Ld.

Counsel further contended that there is no complainant in this case and

in view of non compliance of Section 154 Cr.PC, entire investigation

is vitiated and, as such, accused are liable to be discharged in this case.

According to Ld. Counsel sanction under Section 6 of DSPE Act was

also not obtained. DCS Act being a special law should prevail over the

general law and, therefore, accused persons cannot be tried for the

alleged offences. As regards A7 Ashutosh Pant, Ld. Counsel

contended that there is no FSL report against him. He has drawn the

attention of the court towards document D3/1 page 3 sub para 9 in

this regard. According to him, the only allegation against Ashutosh

Pant is that he wrote the body of twenty affidavits but for said

allegation there is neither any documentary nor oral evidence on

record. So far as A3 Ashwani Sharma is concerned, Ld. Counsel

contended that the allegation against Ashwani Sharma is that he

prepared the documents on the asking of accused Praveen Kumar Jain.

There is no allegation of forgery against him. Ld. Counsel contended

that preparation of documents is not an offence. Ingredients of Section

468 IPC, the substantive offence for which the accused Ashwani

Sharma has been charged with, are not attracted to the facts and

circumstances of the present case. Ld. Counsel vehemently contended

that CBI has followed the policy of pick and choose in implicating the
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accused in the present case. PWs S C Gola, Madan Mohan Sharma,

Rambir Singh and Pratap Singh have been let off by the CBI for the

reasons best known to them. They have been made witnesses in the

present case though their complicity in the present case is apparent on

the face of the record. Lastly, Ld. Counsel contended that these

accused persons were not arrested by the CBI; that their disclosure

statements were not recorded and that their specimen signatures and

handwritings were not obtained. According to him, both these accused

are liable to be discharged in this case. In support of his contentions,

Ld. Counsel has relied upon judgments/orders of our Delhi High Court

in WP (C) Nos. 1786/2011, 2426/2011 and 2441/2011 all dated

23.5.2011; judgment dated 17.01.2011 passed by Hon'ble Mr. Justice

S.N. Dihingra, High Court of Delhi, in case Crl. Rev. P. Nos.

397/2010; Rakesh Kumar Vs. State, 2004 (i) JC 110; Rajeev

Mukhopadhyay Vs. Registrar Cooperative Societies, 141 (2008) DLT

321 DB; Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra,

(2009) (1) SCC (Crl.) 51; Greater Bombay Coop. Bank Ltd. Vs.

United Yarn Tex (P) Ltd. & others, (2007) 6 SCC 236; Mayurdhwaj

CGHS Ltd. Vs. President Officer Delhi Coop. Tribunal, AIR 1998 SC

2410 and Sapan Haldar (supra).

16. Sh. R P Shukla, Ld. Counsel for A9 M Mishra contended

that CBI have followed the policy of pick and choose in implicating

accused in the present case. A9 was merely a dealing assistant cum
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(Nav Sarv Priya CGHS)
liquidator and there is nothing on record to connect him with the

alleged offences. According to Ld. counsel A9 was only discharging

his official duties and, therefore, he is liable to be discharged in this

case.

17. I have gone through the record as well as the judgments

cited before me.

LAW POINTS :

18. It is contended 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 have 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.

of DCS Act which is a Special Act.

19. 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
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a matter for investigation to CBI. Though not referred to and relied

upon, for taking view I am supported with the order dated 17.09.2007

passed by Hon'ble Mr. Justice Sh. S.N.Dhingra in Criminal MC No.

2784 of 2007.

20. 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 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.

21. 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
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fine, appeal, punishment and, as such, the application of provisions of

the IPC by the CBI is wholly illegal. It is further contended that the

matter is covered under the provision of Section 82(3) of DCS Act

which completely debars the prosecution without giving the

opportunity of being heard as well as previous sanction of RCS. The

offence alleged to have been committed by the accused is punishable

under the provisions of Special law and, therefore, the provisions of

Indian penal Code, being general law, cannot be invoked. In respect of

this contention, accused have relied upon judgments 'State of

Maharashtra Vs. Laljit Rajshi Shah & Ors'. AIR 2000 SC 937; and

'Greater Bombay Coop. Bank Ltd (supra).

22. 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.

23. 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
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(Nav Sarv Priya CGHS)
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 charge

sheeted. Thus, DCS Act does not impose any bar to take resort to the

provisions of General Criminal Laws.

24. 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 RCS officials 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.

25. 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 02.08.05 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
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(Nav Sarv Priya 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.

26. 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.

27. In Judgment 'Vijyan @ Rajan (supra), 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 material from which it would be
reasonable to establish a connection between the alleged
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conspiracy and the act done pursuant to the said conspiracy."
28. In Judgment 'John Pandian (supra) 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."

29. The Apex court in 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
CBI Vs. Priya Jain and others Page 20/31
(Nav Sarv Priya CGHS)
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.

30. In 'State of Maharashtra Vs. Som Nath Thapa', 1996

Crl.L.J 2448', 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
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."

A1 PRIYA JAIN

31. As regards accused no. 1, FSL report against her is based
CBI Vs. Priya Jain and others Page 21/31
(Nav Sarv Priya CGHS)
on examination of photocopies i.e Q803 and Q804. In view of the

judgment Abdul Gaffar (supra), the said evidence is not conclusive and

decisive in character and, as such, the same is not admissible. Even

otherwise, in view of the judgment Sapan Haldar (supra) the FSL

report against A1 will have to be disregarded, as the investigating

officer had not taken handwriting sample through a court order.

Application form of accused Priya Jain placed in file D8 at page 223

is stated to be neither signed nor filled in by her. The name of her

husband and the address have also been wrongly mentioned in the said

application. There is no date beneath the signatures of accused Priya

Jain and no membership subscription receipt has been produced by the

prosecution to show that accused Priya Jain ever paid any amount to

the society for becoming its member. PW5 Pratap Singh, PW6

Rambir Singh, PW7 S C Gola and PW 61 M M Sharma have not

alleged anything against A1. Had accused Priya Jain been in

conspiracy with other accused persons, the documents used by co

accused for revival of the society would have been bearing her

genuine signatures. Merely because PW23, PW43 and PW48

were/are related to accused Priya Jain, this circumstance by itself is

not sufficient to frame charge against her. There is nothing on record

that accused Priya Jain forged the documents or used the forged

documents as genuine for the revival of the Nav Sarv Priya CGHS.

Thus, ingredients of Section 468 and 471 IPC are not attracted against
CBI Vs. Priya Jain and others Page 22/31
(Nav Sarv Priya CGHS)
her. As FSL report cannot be considered against A1, A1 cannot be

said to be a party or conspirator in the alleged offences. There is no

connecting link that would warrant an inference that A1 was acting in

criminal conspiracy with other accused. Thus, I find no ground for

framing charge u/s 120B IPC also against her.

A2 PRAVEEN JAIN :

32. So far as A2 Praveen Jain is concerned, admittedly none

of the document bears his genuine signatures. It is the case of the

prosecution itself that all the signatures of A2 Praveen Jain on the

documents were forged by A5 Virender Kaushik. The only evidence

against A2 is his identification based on his photograph affixed on

passport which was shown to PW3 and PW4 during investigation. Ld.

Counsel for the accused vehemently contended that said identification

of the accused is inadmissible and in support of his contentions he has

relied upon judgment Vijayan @ Rajan (supra). In the said case it was

contended on behalf of the State that the evidence of PW3 can be

relied upon even if test identification parade is discarded and if her

evidence is accepted then the prosecution case is proved that it was

accused Vijayan who came on the day of occurrence during early

hours and shot at the deceased. However, this contention of the State

was not accepted by the Apex Court and it was held as under :
"Accused Vijayan on being surrendered was arrested
on 04.07.84 and the Test Identification Parade was held on

CBI Vs. Priya Jain and others Page 23/31
(Nav Sarv Priya CGHS)
07.08.84. This Test Identification Parade was discarded by the
learned Sessions Judge as it was apparent from the evidence
of PW3 that the photograph of accused Vijayan was shown to
her before the Test Identification Parade and further just
before she was entering the Subjail to identify the accused
somebody had told her to identify the tallest man shown in the
parade. The High Court also agreed with the conclusion of the
learned Sessions Judge and did not rely upon the same but
queerly enough the High Court relied upon the evidence of
PW3 as she identified the accused in Court after so many years
on the ground that corroboration to the same is available. This
conclusion on the face of it is unsustainable. Since the accused
Vijayan was not known to PW3 and the Test Identification
Parade having been discarded, the substantive evidence of
identification in the Court after so many years cannot be
relied upon. " (Emphasis supplied)

33. It is not the case of the prosecution that A2 was known

to PW3 and PW4 prior to his visiting the RCS office on 8.6.2000.

PW3 in his statement u/s 161 Cr.PC dated 14.9.2006 has categorically

stated "I do not recall being present before the RCS with one Praveen

Jain, President or Secretary of any society." However, when

photograph on the passport of A2 Praveen Jain only was shown to

him, PW3 identified him to be the person who appeared before RCS

on 8.6.2000. A2 appeared only once before PW3 and PW4 on

8.6.2000 and their statements were recorded u/s 161 Cr.PC on

4.9.2006 i.e after more than six years. Both PW3 and PW4 identified

A2 Praveen Jain on the basis of the photograph of A2 only shown to

them. In view of the law laid down by Apex Court in judgment Vijyan

CBI Vs. Priya Jain and others Page 24/31
(Nav Sarv Priya CGHS)
(supra), the identification of A2 Praveen Jain on the basis of his

photograph being shown to the witnesses is not admissible.

A3 ASHWANI SHARMA & A7 ASHUTOSH PANT :

34. So far as accused A3 Ashwani Sharma and A7

Ashutosh Pant are concerned, in view of the authoritative

pronouncement of the full bench of our Delhi High Court in the case

of Sapan Haldar (supra), the FSL report against A7 will have to be

disregarded, as the Investigating Officer had not taken handwriting

samples through a court order. However, even after disregarding said

FSL report, there is sufficient evidence against Ashwani Sharma and

Ashutosh Pant as PW21 Sh. Naveen Kaushik in his statement u/s 161

Cr.PC has stated as under :

"...Today I have been shown the documents of Nav Sarpriya
such as affidavits files having affidavits of 105 members
from Rajesh Jain page 105 to Smt. Rashmi Page 1. I am to
state that all these affidavits were filled up by Ashutosh
Pant...
...

...

As the persons mentioned in the earlier affidavits were to be changed so as to have control over the society taken by the purchaser of the society as such fresh affidavits were to be submitted to the RCS, which were prepared by Ashwani Sharma." (Emphasis supplied) In view of the statement of PW21, I am of the opinion that there is sufficient evidence against A3 and A7 for framing charge against CBI Vs. Priya Jain and others Page 25/31 (Nav Sarv Priya CGHS) them.

A4 J K JAIN :

35. As regards accused no. 4 there is sufficient evidence on record that he purchased the documents of the society in question through PW61 Madan Mohan Sharma for a sum of Rs.1.10 lacs. PW61 has categorically stated that he personally handed over all the documents such as registers (proceedings), copies of affidavits along with list of members, ByeLaws etc. The statement of PW61 Madan Mohan Sharma was also recorded u/s 164 Cr.PC wherein he again stated on oath having sold the documents of the society to A4 J K Jain for a sum of Rs.1.10 lac. The contention of Ld. Counsel that the statement of PW61 Madan Mohan Sharma implicating accused J K Jain is barred u/s 126 of Indian Evidence Act, 1872 being the privileged communication between the advocate and his client cannot be accepted. In the facts and circumstances of the present case, it cannot be concluded by any stretch of imagination that PW61 Madan Mohan Sharma, Advocate was rendering legal services to A4 J K Jain as his client. It cannot be said that there was advocateclient relationship between PW61 and A4 J K Jain. Had PW 61 Madan Mohan Sharma been rendering legal services, the statement of PW61 Madan Mohan Sharma implicating accused J K Jain in the present case would certainly have been barred and the same could not have been considered by the court at the time of framing of charge. It is true that CBI Vs. Priya Jain and others Page 26/31 (Nav Sarv Priya CGHS) there are certain contradiction in the statements of PW6 Rambir Singh, PW7 S C Gola and PW61 Madan Mohan Sharma. However, this is not the stage to minutely consider the statements and appreciate the evidence as is required at the time of trial of the case. It is the settled law that at the time of framing of charge only a prima facie view is to be taken. The judgments Larsen & Toubro Ltd. (supra) and The Superintendent, HC (supra) are not applicable to the facts of the present case.

A5 VIRENDER KAUSHIK :

36. As per record there is nothing against A5 Virender Kaushik except FSL report. At the cost of repetition, in view of the judgment Sapan Haldar (supra), the FSL report against A5 also will have to be disregarded, as the investigating officer had not taken the handwriting sample through a court order. Ld. PP for CBI has drawn the attention of the court towards the statement of PW16 Sukhdev Singh recorded u/s 161 Cr.PC and according to her there is oral evidence against A5 for framing charge against him. I do not agree with the submission of Ld. PP for CBI. There is nothing in statement of PW16 Sukhdev Singh against A5 Virender Kaushik qua Nav Sarv Priya CGHS. PW16 Sukhdev Singh has stated about Surangani CGHS which has no concern with the matter in issue in the present case. In my opinion, there is no sufficient evidence against A5 for framing charge against him.

CBI Vs. Priya Jain and others Page 27/31

(Nav Sarv Priya CGHS) A6 JAGJIT SINGH :

37. In view of the judgment Sapan Haldar (supra), the FSL report against A6 also will have to be disregarded, as the investigating officer had not taken the handwriting samples through a court order. Even after disregarding FSL against A6, there is sufficient evidence against him as PW20 Baldev Singh has stated in his statement u/s 161 Cr.PC as under :

"...On being asked, I state that my son Jagjit Singh was running a society by the name of Nav Sav Priya CGHS and it is quite possible that he had made me a member of the society. On being shown the application for enrollment, I state that the signature appearing as Baldev Singh is not my signature. I also state that my signature on the affidavit notarised by CB Arya is also not my signature and it could have been done on my behalf by my son as I was aware that he had made me a member of the said society.

On being shown, the letter addressed to DDA, dt. 20.10.2003 for change of address from Baldev Park to Nimri Colony, I state that I have not signed this letter and the same could have been signed by my son or anybody. I also deny having signed letter dt. 10.10.2003 addressed to DDA for option for allotment of land for Dwarka. I also state that I am not aware if I was ever made Secretary of the society as I was never the Secretary of any society. The address given below my name on the letter dt. 10.10.2003 is correct. On being shown affidavit dt. 14.01.2005, I state that I had submitted this affidavit to my son Jagjit Singh in which, I have stated I hold valid membership of Nav Sav Priya and my M. No. is 126 and my PAN No. is AHTPB4187F. My bank account no. is 29457 with SBI, Adarsh Nagar. This affidavit has my original signature, which has been attested on the verification certificate by one Harvinder Singh, Assistant PR Manager." (Emphasis supplied) CBI Vs. Priya Jain and others Page 28/31 (Nav Sarv Priya CGHS) Thus there is sufficient evidence against A6 for framing of charge against him.

A8 P K THIRWANI, A10 MIR SINGH & A11 CHARAN SINGH :

38. So far as A8 P K Thirwani, A10 Mir Singh and A11 Charan Singh are concerned, there is oral evidence against them as PW19 Sushil Kumar Sharma has identified their signatures on the audit reports. Thus, there is sufficient evidence against them for framing of charge in the present case.

A9 M. MISHRA:

39. As regards A9 M Mishra, there is sufficient oral evidence against him. A9 was acting in dual capacity as a dealing assistant as well as liquidator. The proposal for the revival of the society was put up by him. PW2, PW3, PW4 and PW37 have stated against him in their statements u/s 161 Cr.PC. PW37 in his statement u/s 161 Cr.PC has stated as under :

"...In this particular case there was a liquidator appointed, it was his responsibility as per the provisions of Section 67 (f) to verify all the documents and the membership. Incidentally since the liquidator himself was the Dealing Asstt. of the same zone and also in this particular society it was his double responsibility for verification of the documents and also it was the responsibility to verify and certify whether the person who has applied for revival of the society was genuine and bonafide representative of the Managing Committee of the said society." (Emphasis supplied) CBI Vs. Priya Jain and others Page 29/31 (Nav Sarv Priya CGHS) CONCLUSION :

40. Our Apex Court in Prafulla Kumar Samal (supra), 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 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.

41. It is the settled law that presumption, howsoever strong, cannot take place of proof. For offence of conspiracy some kind of physical manifestation of agreement is required to be established which the prosecution has failed to establish. There is no connecting link that would warrant an inference that A1, A2 and A5 were acting in criminal conspiracy with other accused. The evidence on record is too scanty and meagre to bring in application of Section 120B IPC against them. 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 Nos. 1, 2 and 5 rather than in favour of the prosecution CBI Vs. Priya Jain and others Page 30/31 (Nav Sarv Priya CGHS) and, consequently, accused Nos.1, 2 and 5 are discharged.

42. The judgments relied upon by A3 Ashwani Sharma and A7 Ashutosh Pant are not applicable to the facts of the present case.

43. CBI has done a commendable job in the present case by examining as many as 61 witnesses and the statements of witnesses run in about 130 pages. From the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons except A1, A2 and A5 of having entered into a criminal conspiracy to cheat the offices of RCS and DDA.

44. In view of the above discussion, I am of the opinion that primafacie case is made out against accused A3 Ashwani Sharma, A4 J K Jain, A6 Jagjit Singh, A7 Ashutosh Pant, A8 P K Thirwani, A9 M Mishra, A10 Mir Singh and A11 Charan Singh for committing offences U/s 120B IPC read with Ss. 420, 468, 471 IPC and Sec. 13 (2) r/w S. 13 (1) (d) of P.C. Act, 1988 and substantive offences thereof.

Announced in open court (PRAVEEN KUMAR) today on 19.11.2012. Special Judge, PC Act, CBIIII, Rohini Courts, Delhi.

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