Delhi District Court
Cbi vs . 1. Narayan Diwakar S/O Late Sh. Chatti ... on 21 May, 2012
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 121/11
RC No. 72A/2005/CBI/ACB/N.Delhi
( Avas Deep CGHS)
CBI Vs. 1. Narayan Diwakar S/o Late Sh. Chatti Lal (A1)
2. Sita Ram Goyal S/o Sh. Ramdhari Goyal (A2)
3. Ram Nath S/o Sh. Bishan Lal (A3)
4. Raj Bhushan Chauhan S/o Sh. Kesar Singh
Chauhan (A4)
5. Narender Singh Khatri S/o Late Sh. Lal Singh
Khatri (A5)
6. Prehlad Kumar Thirwani S/o Late Sh. Moti Lal
Thirwani (A6)
7. Ashwani Sharma S/o Late Sh. R.K. Sharma (A7)
8. Mahaveer Prasad Sharma S/o Sh. Kanwarjeet
Singh (A8)
9. Mayank Goswami S/o Sh. Laxman Prasad
Goswami (A9)
10. Devender Mann S/o Sh. Devi Singh Mann (A10)
O R D E R O N C H A R G E:
1.The case of the CBI, in brief, is that Avas Deep Cooperative Group Housing Society (in short 'CGHS') was registered with the Registrar Cooperative Societies ( in short 'RCS), Delhi on 22.09.83 vide registration No. 640 (GH) having its office at ETP17, CBI Vs. Narayan Diwakar & Ors. Page 1/15 (Avas Deep CGHS) Dev Nagar, New Delhi. The society was put under liquidation on 21.7.1989. Sh. Deepak Raj, President of the society, was approached by accused Mayank Goswami and accused M.P. Sharma who offered help to get the society revived. He handed over photocopies of proceeding register, byelaws, members list, blank membership register, blank share certificates and blank application forms etc. to them. After receiving aforesaid documents accused Mayank Goswami and M.P. Sharma approached accused Devender Mann, a builder. They handed over aforesaid papers to him.
2. Investigation further revealed that accused Devender Mann contacted accused Ashwani Sharma who prepared documents for revival of the society. Accused Ashwani Sharma handed over those papers to Naveen Kaushik for submission in RCS office. However, accused Ashwani Sharma had already submitted application dated 1.12.2003 to RCS for revival of the society which application was processed on the file. Since documents of the society were not available, accused R.B. Chauhan vide note dated 20.12.2003 asked the society to furnish its documents for reconstruction of file.
3. It is further alleged that when accused Ashwani Sharma asked accused R.B. Chauhan to vet the documents submitted. Accused R B Chauhan demanded money in lieu of acceptance of those documents for further processing. Accused Ashwani Sharma gave a CBI Vs. Narayan Diwakar & Ors. Page 2/15 (Avas Deep CGHS) sum of Rs. 20,000/ to Naveen Kaushik for handing over the same to accused R.B. Chauhan which fact has been detailed by Naveen Kaushik in his statements recorded during the investigation. Accused R.B. Chauhan put up the file with a note that original file of the society was not traceable and recommended inspection of the society. Said proposal was approved by accused Narayan Diwakar on 16.12.2003. Accused Ram Nath was appointed as Inspecting Officer who submitted false and forged report in respect of the society which report was dishonestly accepted by accused S.R. Goyal, the then AR, and accused Narayan Diwakar, the then RCS, for corrupt and illegal consideration in order to facilitate revival of the society despite the fact that society was dormant for more than two decades.
4. Investigation further revealed that the society was revived by accused Narayan Diwakar on 03.03.2004 without consideration of the fact that it was dormant for more than two decades. He has not taken any exception to the situation as to why file of the society was not available and why a legal action was not initiated in that regard. His inaction on those issues is suggestive that accused Narayan Diwakar was hand in glove with the aforesaid officials of his office and accused R.B. Chauhan, N.S. Khatri, Mahavir Prasad Sharma, Ashwani Sharma, Mayank Goswami and Devender Mann.
5. It is further alleged that accused Narayan Diwakar CBI Vs. Narayan Diwakar & Ors. Page 3/15 (Avas Deep CGHS) appointed accused N.S. Khatri as Election Officer who submitted a false and bogus election report of the society on 30.4.2004. Accused P.K. Thirwani conducted a bogus/fraudulent audit of the society for nearly twenty years in two days based on forged/fake records and gave a clean chit to the society. Thus, accused Narayan Diwakar in connivance with officials of RCS and other accused persons passed order of revival of the society and approved list of 150 members to be sent to DDA for allotment of land. Government Examiner of Questioned Documents gives confirmation to the facts that documents were fabricated and used as genuine one. Statement of Naveen Kaushik unfolds that bribe was given to accused S.R. Goel, the then AR. 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).
6. I have heard Ld. PP for CBI; Sh. S K Bhatnagar, Ld. Counsel for accused Ram Nath (A3) and P K Thirwani (A6); Sh. Satish Tamta, Ld. Counsel for accused M P Sharma (A8), Mayank Goswami (A9) and Devender Mann (A10); Sh. R P Shukla, Ld. Counsel for accused S R Goyal (A2); R B Chauhan (A4) and Narender Singh Khatri (A5) and Sh. Harsh Khanna, Ld. Counsel for accused Ashwani Sharma (A7). I have also gone through the written CBI Vs. Narayan Diwakar & Ors. Page 4/15 (Avas Deep CGHS) submissions filed on behalf of accused Sita Ram Goyal, Ashwani Sharma and Narayan Diwakar.
7. Sh. S K Bhatnagar, Ld. Counsel for accused Ram Nath (A3) and P K Thirwani (A6) contended that there is no allegation of forgery having been committed by these accused persons in the charge sheet. The revival of the society in itself is not an offence. Ingredients of all the Sections mentioned in the chargesheet are not attracted against these accused persons. Nothing was recovered during search from their possession. There is no evidence that they ever demanded the money. DCS Act is a Special Act and it should prevail over the general law. According to him, A3 and A6 are liable to be discharged.
8. Sh. Satish Tamta, Ld. Counsel for accused M P Sharma (A8), Mayank Goswami (A9) and Devender Mann (A10) contended that PW49 Deepak Raj was the original founder of the society and he has given two statements dated 19.4.2006 ad 1.8.2006 during the investigation of the case. Ld. Counsel has drawn the attention of this court towards the statement of this witness and also the statement of PW104 Ashok Kumar and PW57 V Murli. According to him, a perusal of these statements clearly shows that PW49, PW57 and PW104 are not credible witnesses. According to him, PW49 should have been made an accused but he has been made a witness in this CBI Vs. Narayan Diwakar & Ors. Page 5/15 (Avas Deep CGHS) case by the prosecution. The specimen signatures and writings of PW49 were taken by the CBI during the investigation but for the reasons best known to the CBI, no opinion qua those handwritings and signatures was sought from the CFSL. Ld. Counsel also tried to demolish the statement of PW Naveen Kaushik on the ground that Naveen Kaushik has not been made an accused and no proper procedure was followed by the CBI for making him an approver in this case. Thus, the recording of the statement u/s 164 Cr.PC of PW Naveen Kaushik does not fulfill the requirement of the law. According to Ld. Counsel, acused No. 8, 9 and 10 are liable to be discharged.
9. Sh. R P Shukla, Ld. Counsel for accused S R Goyal (A2), R B Chauhan (A4) and Narender Singh Khatri (A5) contended that prosecution has recorded the statement of PW Naveen Kaushik u/s 161 Cr.PC and 164 Cr.PC and both these statements are contradictory to each other. According to him, no prima facie case is made out against these accused and they are liable to be discharged.
10. Sh. Harsh Khanna, Ld. Counsel for accused Ashwani Sharma (A7) contended that PW49 Deepak Raj was the original President of Avas Deep CGHS. He has stated in his statement that accused Mayank Goswami and accused M P Sharma approached him and offered help for revival of the society. PW49 Deepak Raj handed over the copies of proceedings register, bylaws, members list, blank CBI Vs. Narayan Diwakar & Ors. Page 6/15 (Avas Deep CGHS) membership register, blank share certificates, blank application form etc. This information was subsequently misutilized by these persons in connivance with others to forge the entire membership and related documents of the society. According to Ld. Counsel, investigation by CBI is tainted and pick and choose policy has been opted by the CBI to decide as to who is to be kept as a witness and who is to be arraigned as an accused. The allegation against accused Ashwani Sharma are that he prepared documents in computers besides other vague and frivolous allegations. According to Ld. Counsel, no computer was seized in this case and, thus, nothing incriminating can be attributed against accused Ashwani Sharma. The name of the complainant/informant is mentioned as D Damodaran SI CBI meaning thereby even after completion of preliminary inquiry there was no independent complainant/informant and as such there is violation of Section 154 Cr.PC. Further Inspector of CBI was not empowered and authorised to investigate the present case. Ld. Counsel further contended that the person who handed over blank share certificates etc. has been cited as a witness and the role assigned to accused Ashwani Sharma as per allegation in the charge sheet is not sufficient to hold him prima facie guilty of the offences and, hence, accused Ashwani Sharma is liable to be discharged. In support of his contentions, he has relied upon order dated 23.5.2011 in WP (C) No. CBI Vs. Narayan Diwakar & Ors. Page 7/15 (Avas Deep CGHS) 2441/2011 and CM No. 5219/2011, order dated 23.5.2011 in WP (C) No. 2426/2011, order dated 23.5.2011 in WP (C) No. 1786/2011, all passed by High Court of Delhi, judgments A P Narang Vs. CBI, Crl. Rev. P No. 397/2010 dated 17.1.2011, Rakesh Kumar Vs. State, 2004 (1) JCC 110, Rajib Mukhopadhyaya Vs. Registrar, Cooperative Societies, 141 (2007) DLT 321 (DB), Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra (2008) 10 SCC 394, Greater Bombay Coop. Bank Ltd. Vs. United Yard Tex (P) Ltd., (2007) 6 SCC 236 and Myurdhwaj Cooperative Group Housing Society Ltd. Vs. Presiding Officer, Delhi Cooperative Tribunal, AIR 1998 SC 2410.
11. According to accused Narayan Diwakar, he has done nothing wrong while discharging his functions as RCS. RCS does not deal with land as the same is the subject matter of DDA who allots the land in accordance with the Rules framed under DDA Act, 1957 and Disposal of Development Nazul Land Rules, 1981. CBI has committed various illegalities while investigating the matter. He placed reliance upon the judgment titled as Dr. R.R.Kishore v. CBI 2006 VIII AD (Delhi) 545, wherein it was held that if illegal investigation is brought to the notice of the Trial Court at the initial stage, then the court ought not to proceed with the trial but should direct reinvestigation in order to cure the defect in the investigation. Accused Narayan Diwakar has pointed out following illegalities:
CBI Vs. Narayan Diwakar & Ors. Page 8/15
(Avas Deep CGHS)
(a) Consent of the State was not taken as required U/s 6 of the Delhi Special Police Establishment Act, 1946 (in short 'DSPE' Act).
(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.
12. 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.
13. 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 CBI Vs. Narayan Diwakar & Ors. Page 9/15 (Avas Deep CGHS) 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.
14. All the accused have raised the contention that the DCS Act, is a complete self contained statute and, therefore, provisions of the Indian Penal Code cannot be invoked. The DCS Act, 1972 provides for a well defined system of addressing the issues relating to various private cooperative societies and it contains the provisions of fine, appeal, punishment and, as such, the application of provisions of the IPC by the CBI is wholly illegal. It is further contended that the matter is covered under the provision of Section 82(3) of DCS Act which completely debars the prosecution without giving the opportunity of being heard as well as previous sanction of RCS. The offence alleged to have been committed by the accused is punishable under the 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 CBI Vs. Narayan Diwakar & Ors. Page 10/15 (Avas Deep CGHS) Greater Bombay (supra).
15. 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 charge sheet filed by the CBI is barred due to enactment of Special Law.
16. 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 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.
17. 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 CBI Vs. Narayan Diwakar & Ors. Page 11/15 (Avas Deep CGHS) of the DCS Act, there is a presumption of genuineness of the documents filed in support of the application. 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 re construction 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 his acts when they were actuated with conspiracy to cheat the RCS and office of DDA.
18. Further, it is contended that there is no complainant in this case and, thus, the registration of FIR in the present case does not satisfy the ingredients of Section 154 Cr.PC. The contention is devoid of any merit. Our High Court of Delhi while hearing the Civil Writ Petition No. 10066/2004 passed order dated 2.8.05 directing the CBI to conduct the thorough investigation in the matter relating to 135 CGHS. In pursuance of the aforesaid order passed by the Delhi High Court in exercise of its inherent powers, an inquiry was conducted by CBI which disclosed commission of cognizable offence by the accused persons in the matter of dishonest and fraudulent revival of society. Therefore, CBI rightly lodged the FIR in the present case. While registering the FIR, the acts and omissions on the part of the CBI Vs. Narayan Diwakar & Ors. Page 12/15 (Avas Deep CGHS) 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.
19. 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. One of the crucial witness in this case is PW Naveen Kaushik whose statement was recorded by the CBI u/s 161 Cr.PC as well as u/s 164 Cr.PC. The statement dated 5.12.2006 of PW Naveen Kaushik was recorded by Ld. Metropolitan Magistrate u/s 164 Cr.PC and it was recorded on oath wherein PW Naveen Kaushik has stated in detail as to how and at whose instance the society in question was tried to be revived. The statement u/s 164 Cr.PC is on a better footing than the statement u/s 161 Cr.PC as statement u/s 164 Cr.PC is recorded CBI Vs. Narayan Diwakar & Ors. Page 13/15 (Avas Deep CGHS) before a Magistrate and is on oath. Thus, the statement of PW Naveen Kaushik u/s 164 Cr.PC cannot be brushed aside at this stage. PW Naveen Kaushik has not been made an accused in this case by the CBI and, thus, it was not at all necessary for the CBI to make him an approver in this case. The contention of Ld. Counsel that much credence cannot be placed on the statement of PW Naveen Kaushik is without any merit. At this stage, it cannot be said that PW49, PW57 and PW104 are not credible witnesses. The cognizance of the offences was taken by the Ld. Predecessor of this Court. Neither it is the proper stage to add any other person to the array of accused nor there is prima facie evidence against PW49/PW1 Naveen Kaushik at this stage. However, the court has ample power to summon any person as an accused if evidence comes before the court against him and said power can be exercised by the court u/S 319 Cr.PC at the appropriate stage. It is settled law that at the time of framing of charge, only a prima facie view has to be taken. 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 Offices 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), accused Sita Ram Goyal (A2), accused Ram CBI Vs. Narayan Diwakar & Ors. Page 14/15 (Avas Deep CGHS) Nath (A3), Raj Bhushan Chauhan (A4), accused Narender Singh Khatri (A5), accused Prehlad Kumar Thirwani (A6), accused Ashwani Sharma (A7), accused Mahaveer Prasad Sharma (A8), accused Mayank Goswami (A9) and accused Devender Mann (A10) for committing offences U/s 120B IPC r/w Ss. 420, 468, 471 IPC and Sec. 13 (2) r/w S. 13 (1) (d) r/w Sec. 15 of the P.C. Act, 1988.
(ii) Primafacie case is made out against accused Narayan Diwakar (A1), accused Sita Ram Goyal (A2), accused Ram Nath (A3), Raj Bhushan Chauhan (A4), accused Narender Singh Khatri (A5), accused Prehlad Kumar Thirwani (A6) for committing substantive offences u/s 13(1)(d) r/w Sec. 15 of PC Act, 1988 and
(iii) Primafacie case is made out against accused Ashwani Sharma (A7), accused Mahaveer Prasad Sharma (A8), accused Mayank Goswami (A9) and accused Devender Mann (A10) for committing substantive offences u/Ss. 420/511, 468, 471 IPC.
Announced in the open court (PRAVEEN KUMAR)
on dated 21.5.2012. Special Judge, PC Act
CBI3, Rohini Courts,Delhi.
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