Delhi District Court
The Case Of The Prosecution Is That ... vs Sushil Kumar Sharma & Ors. (Sartaj Cghs) ... on 17 November, 2015
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 104/11
FIR No. RC10 (E)/2005/EOWI/LI
Under Sections 120B IPC r/w 419, 420, 467, 468 & 471 and 511 IPC
and under Sections 13(2) r/w S. 13(1)(d) of P C Act, 1988.
CBI
Versus
A1. Sushil Kumar Sharma
S/o Sh. Madan Lal Sharma
R/o Villae Lalsa, PO, Dausa,
Tehsil Rampur,
Himachal Pradesh.
A2 Srichand
S/o Sh. Hari Singh
R/o 274A, PocketC, Mayur Vihar,
PhaseII, Delhi91.
A3 Anna Wankhede
S/o Sh. Purunji Wankhede
R/o 148E, Pocket A2,
Mayur Vihar, PhaseII,
Delhi.
A4 Narayan Diwakar
S/o Late Sh. Chhati Lal
R/o G30, Masjid Moth,
Greater Kailash - II, New Delhi.
CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 1
A5 Dayanand Sharma
S/o Late Sh. Ram Diwaya
R/o 1378, Ram Bagh, Shukur Basti,
Delhi34.
A6. Yogiraj
S/o Sh. Girdhari Lal
R/o AP77, Shalimar Bagh,
Delhi.
A7. Ramnath
S/o Late Sh. Bishan Lal
R/o 192, West Guru Angad Nagar,
Gali No.9,
Laxmi Nagar, Delhi 92
A8 Faiz Mohammad
S/o Sh. Gula Mohd.
R/o 4794, Bara Hindu Rao,
Near Sadar Bazar, Pahari Dhiraj,
Delhi6.
A9 Niranjan Singh
S/o Babu Lal
R/o 309, Delhi Govt Flats,
TypeII, Karkardooma
Delhi. ..... Accused
(Sartaj CGHS)
Date of institution of case : 20.10.2006
File received by transfer on : 24.05.2011
Date for reserving for judgment : 02.11.2015
Date of pronouncement of judgment : 17.11.2015
CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 2
J U D G M E N T
I CASE OF THE PROSECUTION :
1. The case of the prosecution is that during 1970 to 1980 and thereafter a number of Group Housing Societies were registered. Later on some of the societies became defunct due to nonoperation, nonconduction of annual audit of accounts, nonsubmission of membership list and other documents to RCS for verification which are mandatory requirements as per the Delhi Cooperative Societies Act, 1972 (in short 'DCS Act'), the law under which the Cooperative Group Housing Societies (in short 'CGHS') are registered and regulated.
2. It is further alleged that during 2003 when DDA was in the process of development of plots of land in 5 areas for allotment to approximately 80 CGHS on seniority basis, certain builders/private persons conspired with Narayan Diwakar, the then Registrar Cooperative Societies (in short 'RCS'), D.N. Sharma, the then Assistant Registrar, North West (in short 'AR/NW'), Niranjan Singh, the then dealing Assistant, Ramnath, the then Gr.II Inspector, Faiz Mohd, Retired Gr.II Inspector and Srichand, the builder & others to fraudulently and dishonestly revive the Sartaj CGHS Ltd. on the basis of false/forged documents to get the land allotted in the name of the society from Delhi Development Authority (in short 'DDA') at cheaper rates. Further, in order to dishonestly and fraudulently revive the CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 3 Sartaj CGHS, the officials of RCS caused the main/original file of the said society to disappear from the office and reconstructed a new file by accepting the bogus/forged records from the so called officer bearers of the society. The officials of RCS deliberately did not approach the DDA for the original file though DDA had a separate file of the Sartaj CGHS. Ramnath, Inspector in the office of RCS submitted bogus/fake inspection reports u/s 54 of the DCS Act, 1972 in which he claimed to have visited the society and met the office bearers. The officials of the RCS deliberately ignored/overlooked the inconsistencies and infirmities and the RCS ordered the revival of the Sartaj CGHS and its details were sent to DDA on 25.3.2004 for allotment of land. In order to suppress the fraudulent revival of the society, Narayan Diwakar, the then RCS conspired with other co accused and approved the change of name of the society from "Sartaj CGHS" to "The Sea Shine CGHS Ltd." with an intention to get the land allotted in the name of the society from DDA at cheaper rates.
3. Investigation disclosed that originally the Sartaj CGHS Ltd. was registered with the RCS on 15.6.1972 with registration No. 136(H). The registered address shown was 1355, Gali Wazir Bagh, Post Office, Turkman Gate, Tehsil & District, Delhi. The society also functioned from 2241, Dakotman Street, Turkman Gate, Delhi and C156, Minto Road Complex, New Delhi. Initially, the society had 52 members and, subsequently, members were further enrolled making a CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 4 total of 191 members. The society was offered a land by the DDA in May 1975 but the same was not accepted by the society as it was also expecting a land in South Delhi area through the Wakf Board. The DDA closed the offer. The society was, therefore, wound by the RCS on 21.5.1979 vide liquidation order No. F47/136/78/ Housing/Coop/198692 dated 21.5.79 of Sh. Ashok Bakshi, Deputy Registrar. Sh. M.L. Ahuja was appointed as Liquidator.
4. Investigation further disclosed that the society made an appeal against the said liquidation order in 1979 before the Lt. Governor, Delhi, the Competent Appellant Authority. Subsequently, on 23.5.1980 the Lt. Governor dismissed the said appeal of the society. Aggrieved by the said dismissal of appeal, the society filed a Civil Writ Petition No.1687 of 1980 under Article 226 of the Constitution of India in the High Court of Delhi praying therein for quashing the impugned order passed by the Lt. Governor. On the assurance of the RCS in the High Court, the petition was withdrawn by the Sartaj CGHS Ltd. and, subsequently, on 20.6.1981 the liquidation order of the society was cancelled and the society stood revived. Consequently, the DDA allotted a land to the society in Geeta Colony, Delhi vide letter dated 31.3.1983 and the possession of the said land was given to the society on 15.6.83.
5. Investigation further disclosed that on 15.5.84 the society changed its address from Turkman Gate, Delhi to C156, Minto Road CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 5 Complex, New Delhi. The Sartaj CGHS Ltd. was amalgamated with another society by name Taj CGHS having Regn. No.135(H) in the year 1988 and a new Regn. No. 2001 was allotted to the amalgamated society TajSartaj CGHS Ltd. The total members of amalgamated Taj Sartaj CGHS Ltd. came to 358 (191 of Sartaj CGHS Ltd. and 167 of Taj CGHS Ltd.). The amalgamated society (TajSartaj CGHS Ltd.) completed construction of flats for all its 358 members by 1991 in Geeta Colony and the flats were alloted to them by draw of lots approved by the DDA in February 1991.
6. Investigation further disclosed that one Sh. S. K. Gaur, self styled Secretary of Sartaj CGHS Ltd. (Registration No.136 H, dated 24.6.1972) made an application to the RCS on 24.9.2003 for revival of the said society u/s 63 (3) of the DCS Act, 1972 stating therein that the society had been put under liquidation and no show cause notice or winding up order had been served on their society. Along with the application he had furnished photocopies of the application of members, share money receipts, original affidavits of all the members on Rs.10/ stamp paper notarized on 22/09/2003 stating that they are members of Sartaj CGHS Ltd. and residents of Delhi for more than 3 years.
7. Investigation further disclosed that in the application dated 24.9.03, S. K. Gaur mentioned that the society had shifted its office from C156, Minto Road Complex, New Delhi to Flats No.8, CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 6 Sector 21, Rohini, Delhi. Investigation disclosed that no society in the name of Sartaj CGHS Ltd ever existed at the given address in Rohini. The said property was in the possession of Sh. Anand Rao since 1995. He has denied any such society having office at his premises and that no meetings of the society had taken place at his premises as mentioned in the minutes of the proceeding of the meeting available on record.
8. Investigation further disclosed that no such person by name S K Gaur, Secretary existed nor any of the office bearers of Sartaj CGHS Ltd. existed.
9. Investigation further disclosed that Sushil Kumar Sharma, had impersonated as S. K. Gaur, the Secretary of the society and furnished the documents to the RCS office and was involved in the whole process of revival of the society and had signed as S K Gaur, the secretary at the instance of his employer, Srichand, a builder and advisor to societies. Investigation disclosed the documents submitted to the office of RCS by Sushil Kumar Sharma impersonating himself as S. K. Gaur, Secretary were forged/fabricated.
10. Investigation further disclosed that out of the 139 members of the society, most of them were nonexistent including the office bearers. Notices issued by post to all of them were returned undelivered. Two members namelyVinod Sharma (Membership No.
129) and Kishan Chand Wadhwa (Membership No. 125) were found CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 7 in existence and investigation revealed that they were not the members of the society and they had not signed the original affidavits in 2003. Sh. Vinod Sharma further stated that he was born only in 1976 whereas his application for membership is of the year 1974. Investigation further disclosed that the affidavits (which were prepared on stamp papers of Rs.10/ each) of all the 139 members in the names of the alleged members of the society were all forged. The investigation disclosed that most of the stamp papers were purchased by Anna Wankhede from one Sh. Avanish Kumar (employee of Sh. P R Bhatia), Stamp Vendor in the Old Court Building, Parliament Street, New Delhi in the name of the society. Some of the stamp papers were also purchased from Smt. Kulwant Kaur and Smt. Prem Kumari, Stamp Vendors in the Old Court Building, Parliament Street, New Delhi. Investigation further disclosed that some of the stamp papers purchased from Smt. Kulwant Kaur were purchased in the name of Delhi Water Supplies Officers and Sewage Disposal Employees CGHS Ltd. but the same had been used for affidavits in Sartaj CGHS Ltd. Investigation further disclosed that one Dr. Karmjit Singh, Notary Public, notarized the affidavits of all the 139 members of the society in a single day i.e. on 22.9.2003 and that he died in June 2005 and that the signatures appearing on the affidavits were not that of Dr. Karamjit Singh. Investigation further disclosed that in most of the said stamp papers the particulars of the members were typed at either Lal CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 8 Document Center, Trilokpuri or Vaishno Typing and Computer Centre, Khichripur. The signatures of the President and the Treasurer, as available in the documents submitted to the RCS office were forged by Anna Wankhede. Anna Wankhede had also forged the signatures of many of the members of the society in the affidavits notarized on 22.09.2003 submitted to the RCS office. The Govt. Examiner for Questioned Documents (in short 'GEQD') has given a positive opinion in this regard. Investigation also disclosed that Sushil Kumar Sharma had signed as S. K. Gaur on the various documents including the application for revival, change of name of the society etc. The GEQD had given a positive opinion in this regard. The GEQD had also given positive opinion on some of the typing being made by the typewriters of Lal Documents Center, Trilokpuri or Vaishno Typing and Computer Centre, Khichripur.
11. Investigation further disclosed that the registration certificate furnished by Sushil Kumar Sharma as S. K. Gaur, Secretary is fake since the date of registration is shown as 24.06.1972 whereas it is actually 15.06.1972. The minutes of the meeting on various dates in the proceeding register, photocopies of which are available on record, had been written by either Sushil Kumar Sharma and Srichand. The GEQD has given a positive opinion in this regard. The copy of liquidation order dated 21.08.1979 submitted by Sushil Kumar Sharma was bogus/fake. The records taken over from the original Taj Sartaj CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 9 CGHS Ltd. and the DDA would show that the original liquidation order bears the number F. 47/136/78/Housing/ Coop/205056 dated 21.5.79 which is different from what has been submitted by Sushil Kumar Sharma. Further, Sh M. L. Ahuja who was appointed the liquidator at that time had directed the society vide letter dated 23.5.79 to hand over the charge of assets and liabilities.
12. Investigation disclosed that the Secretary of Sartaj CGHS Ltd. vide letter dated 19.6.1978 had informed the RCS office that they had changed the address of the society from Minto Road to Rohini and mentioned that the minutes of the meeting held on 29.10.1995 for approving the shifting of office was enclosed with the letter which shows that the letter and the minutes of the meeting were prepared later on.
13. Investigation disclosed that the said application dated 24.09.2003 of Sushil Kumar Sharma impersonating himself as S.K. Gaur, Secretary of Sartaj CGHS Ltd. was processed in the office of RCS by Niranjan Singh, and forwarded for approval by D.N. Sharma, Assistant Registrar (AR/NWII) and Rakesh Bhatnagar, JRCS and approved by Narayan Diwakar, former RCS. No efforts were made to trace the file except issuing an innocuous circular to all zones to trace for the files and if available to furnish within one week's time. No police complaint was made or any action taken against any officials/junior level staff of RCS for loss of files of the society. CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 10 Investigation disclosed that verification was not made with DDA about the records submitted by the society.
14. Investigation further disclosed that Ramnath, Gr II Inspector who was appointed to conduct inspection u/s 54 of the DCS Act vide his inspection report dated 29.10.2003 submitted that he had visited the office of the society on 26.10.2003 at Flat No.8, Pocket 13, Sector21, Rohini, Delhi and met Sh. S. K. Gaur, Secretary and that the secretary had produced the original records and that he had collected photocopies of the liquidation order dated 23.8.1979, GBM dated 21.9.2003, Registration certificate, byelaws of the society, unaudited accounts, nomination forms, service proof, agenda notice dated 06.08.2003, MC meeting dated 15.8.2003, 20.10.1995 and GBM dated 18.6.1978. It is further reported in the inspection report that the society is not functioning for long and the society was liquidated vide order No. F47/136/78/H/Coop/167389 dated 23.8.79 for the reasons that the society had failed to get the list approved from RCS office; get its accounts audited from RCS office since 24.06.1972 onwards; conducting timely elections and the society failed to achieve its aim. Investigation showed that the inspection report was false as Ramnath had neither visited the nonexistent office of the society in Rohini and had collected all bogus documents. Niranjan Singh, Dealing Assistant and Yogiraj AR(NW) had put up the false inspection report for consideration before the Competent Authority namely the RCS for CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 11 revival of the society under Sec 63 (3) of the DCS Act, 1972. Narayan Diwakar, then RCS had vide his note dated 13.11.2003 had ordered that the concerned zone to do the verification of membership and ascertain the audit/election status of the society and adjourned the proceedings for 02.12.2003.
15. Investigation further disclosed that D.N. Sharma, AR(NW) vide letter no. F47/136/GH/COOP/NW/1520 dated 14.11.2003 requested the President/Secretary to produce the original records of the society on or before 28.11.2003 for verification. Faiz Mohd., Dealing Assistant vide note dated 24.11.2003 submitted details of the verification of the records of the society. He had given complete account of the society from the time of registration on 24.06.1972, shifting of addresses, liquidation of the society etc. and that the Secretary of the society had produced/submitted the original records and documents pertaining to membership, audit & election etc. for verification and the same was counter checked/verified and found in order. He has further submitted that the society had submitted a list of 139 members and that all the members were enrolled prior to 30.6.1986, the freeze date and certified that the original records were examined and verified and that the enrollments were found to be in order and in accordance with provisions of the DCS Act & Rules and that no residential proof is required as all the enrollments were made prior to 01.05.1985 [as per notification dated 5.12.2001 of Special CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 12 Secretary (Cooperation)]. He had suggested that in view of the facts noted, the competent authority may revive the society and approve the final list of 139 members for onward transmission to DDA for allotment of land. D.N. Sharma had forwarded his note and certified that the documents submitted by the Secretary of the society had been verified with the original record placed by the society and that the request of the society for revival be considered. The RCS officials did not verify the records and noted false points and a proper verification would have shown that the documents submitted by the representative of the society were bogus.
16. Investigation further disclosed that the RCS officials did not verify the records properly and made no efforts to get hold of the copy of liquidation order which was available with the DDA, Revenue Department of Govt. of NCT of Delhi, Delhi State Cooperative Bank and branches/zones in the office of RCS. Further, as per the RCS file, the Secretary of Sartaj CGHS Ltd. vide his letter dated 19.6.1978 had informed the RCS about the change of address from Minto Road to Rohini and the said letter was accompanied by the minutes of the meeting held on 29.10.1995 in which the shifting of office of society from Minto Road to Rohini had been approved which clearly shows that the records were fabricated. Further, the photocopy of the Agenda Notice dated 06.08.2003 sent to the members signed by the Election Officer for holding of elections of Sartaj CGHS Ltd. is available in the CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 13 records submitted to the RCS office. This agenda notice has been prepared on the letter head of the Delhi Water Supply & Sewage Disposal Undertaking Section Officers CGHS Ltd., whereas the matter relates to the election of Sartaj CGHS Ltd.
17. Investigation further disclosed that Narayan Diwakar, former RCS had conducted hearing on 02.12.2003 and Smt. Rashmi Gulati, Advocate had represented the society and the concerned Zonal Asstt. Registrar was also present. The Asstt. Registrar namely D.N. Sharma stated before the RCS that the records submitted by the society were checked and verified. He had reserved the orders on 02.12.2003. Investigation has disclosed that on 04.12.2003, N.S. Khatri, Reader to RCS had put up a note stating that an order U/s 63(2) for DCS Act has been issued and a copy of the same is placed in file. While passing the order, Narayan Diwakar, the former RCS had made certain observations and cancelled the winding up order dated 23.08.1979 and ordered the revival with immediate effect and approved the list of 139 members. He had imposed certain conditions in his order that the pending audit should be completed within two months time and appointed Sh. B S Aswal as Election Officer to conduct election of the Managing Committee within two months time. Besides that, in the revival order dated 4.12.2003, Narayan Diwakar, the then RCS had dishonestly mentioned that the powers U/s. 63 of the RCS Act, 1972 had not been delegated by the RCS to Deputy CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 14 Registrar whereas the investigation has established that the then RCS had delegated the powers U/s. 63 of the DCS Act, 1972 to Shri Ashok Bakshi, the then Dy. Registrar and, therefore, the conclusion drawn by Narayan Diwakar, the then RCS that the society had been wound up unauthorizedly in a mechanical manner in absolutely false and baseless. Narayan Diwakar, the then RCS has also taken shield from an order dated 7.8.2000 passed by his predecessor Shri R.K. Srivastava, the then RCS wherein he has claimed that detailed instructions had been issued regarding the revival of Cooperative Housing Societies which had been wound up in large numbers but liquidation proceedings had neither been initiated or completed due to the various reasons pointed out in the said order. The said order issued by Shri R.K. Srivastava relates to liquidation proceedings and its procedures and not revival. Further, Narayan Diwakar, the then RCS had also falsely and dishonestly mentioned in the revival order that the President and Secretary of the society made oral commitments to fulfill all statutory liabilities in future whereas the notesheets dated 13.11.2003 & 2.12.2003 available on file show that only Smt. Rashmi Gulati, Advocate represented the society was the only person present before the RCS in addition to D.N. Sharma, A.R. This clearly shows that Narayan Diwakar, the then RCS not only mentioned false & incorrect facts but also twisted the facts in such a manner so as to suit his coconspirators.
CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 15
18. Investigation further disclosed that Sushil Kumar Sharma @ S. K. Gaur vide letter dtd 29.3.04 addressed to AR(NW) requested to change the name of the society. The request had been processed by Faiz Mohd., then Dealing Assistant and signed by various authorities namely Yogiraj, Asstt. Registrar (in the absence of D N Sharma), J S Sindhu, Jt. Registrar and Narayan Diwakar, then RCS in a single day i.e. 29.03.2004. The request for change of the name of the society was processed and on the very same day and the name of Sartaj CGHS Ltd. was changed to Sea Shine CGHS Ltd. and the list of members also forwarded the concerned Asstt. Registrar (N/W) to Asstt. Registrar (Policy) for onward forwarding it to DDA. Investigation further disclosed that though the revival order dated 04.12.2003 was made conditional yet the name of the society was recommended to be forwarded to DDA on 29.3.2004 for allotment of land. Neither the elections were conducted nor any audit of the society was done before forwarding the name of the society to DDA for allotment of land. These facts were not verified by the RCS officials which clearly established their preset mind to get the land allotted in the name of the society.
19. During investigation, it has come to light that there were various overt differences/discrepancies available on record of the Original and Duplicate societies. When the RCS received back a list of 139 societies from DDA for reverification, the RCS published a CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 16 notice in the newspapers in the end of 2004 directing the said society members to furnish fresh affidavits in support of their membership. Investigation disclosed that Srichand approached M/s V A Agency, Mayur Vihar PhaseI and paid a sum of Rs. 26,880/ in cash for issuance of a public notice in the name of Sea Shine CGHS Ltd. M/s V A Agency further paid to Times of India, New Delhi for publishing an advertisement on behalf of the said society which had since been published on 30.12.2004. Investigation further disclosed that Srichand had introduced Smt. Rashmi Gulati and V. K. Gulati, Advocates to Sushil Kumar Sharma for representing the revival case of the society in the office of RCS. Investigation also showed that Sh. Avtar Singh was made the dummy President of the society and the control of the society was with Srichand. This clearly indicates that Srichand played a major role in the fraudulent revival of Sartaj CGHS Ltd.
20. Sanctions for prosecution were obtained against accused Yogiraj, the then Asstt. Registrar, O/o RCS, New Delhi, Niranjan Singh and Ramnath, the then Gr. II Inspectors/Dealing Assistants O/o RCS, New Delhi from the Competent Authorities.
21. After the investigation, chargesheet was filed in the Court against all the accused for committing offences punishable under Prevention of Corruption Act, 1988 (in short 'PC Act') and Indian Penal Code, 1860 (in short 'IPC').
CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 17
II. CHARGES FRAMED :
22. On the above allegations, my Ld. Predecessor framed charges vide order dated 04.10.2008 against all the accused persons as under:
(i) All accused : S.120B r/w S. 418 IPC (ii) All accused : S.418 r/w S.120B IPC (iii) A1, A2, A3 & A7 : S.467 r/w S.120B IPC. (iv) A1, A2, A3 & A7 : S.468 r/w S.120B IPC. (v) All accused except A2 : S.471 r/w S.120B IPC. (vi) A4 to A9: S. 13 (2) r/w S.13 (1) (d) P.C. Act.
All the accused persons pleaded not guilty and claimed trial. They were accordingly put to trial.
III. PROSECUTION WITNESSES :
23. Trial proceeded and in the course of trial, the prosecution, in order to substantiate its case against the accused, examined eighty seven witnesses in all who may be clubbed in nine groups for convenience. The nine groups are as hereunder :
(a) Fake Members
(b) RCS Officials
(c) Post Office employees
(d) Sanctioning Authorities
(e) Fake Society's Addresses
(f) Advocates
(g) Founder Member
(h) CBI Officials
(i) Others
CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 18
24. FAKE MEMBERS :
GroupI
PW49 Kishan Chand Wadhwa
PW50 Vinod Sharma
PW72 Mohan Lal
25. PW49 Kishan Chand Wadhwa has deposed that he never became member of society though his name is mentioned in the list of membersEx. PW49/C of the society in the file D3 vide membership No. 125. He has also denied the application for membership in Sartaj CGHS being moved or signed by him. He proved the said application as Ex.PW49/A. He also denied his signatures on the affidavit Ex.PW49/B. He feigned ignorance about the other office bearer of the society.
26. PW50 Vinod Sharma has deposed that he never became member of any society including Sartaj CGHS though he has been falsely shown as member of the said society. He has further deposed that the signatures appearing on the applicationEx.PW50/A, affidavit Ex.PW50/B and on other various proceedings of Sartaj CGHS were not appended by him.
27. PW72 Mohan Lal has deposed that application for membership in the name of Smt. Kamlesh wife of Sh. Mohan Lal does not belong to her wife and the name of his wife is Smt. Har Pyari. CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 19 GroupII
28. PW48 Chander Mohan Goyal has deposed that property ED2, Pitam Pura is a nonexistent address.
29. PW54 Hafiz Mohammad Zamil has deposed that he is residing at 7890, Mohalla Sheikhan, Bara Hindu Rao, Delhi and no person by the name of J. K. Dutta ever resided in his locality. He has further deposed that their locality is entirely a Muslim locality and no Hindu family resided there. He has further deposed that one Abdul Kalam is residing at 7900, Mohalla Sheikhan, Bara Hindu Rao, Delhi. PW75 Haji Nazir Ahmed has corroborated the testimony of PW54.
30. PW55 Abdul Kalam has also corroborated the testimony of PW54 and has deposed that no person by the name of J. K. Dutta ever resided in the said locality.
31. PW64 Parvej Ali has deposed that he has been residing at property bearing no. 6158, Bara Hindu Rao, Delhi for the last 20 years and no person by the name of Devender Singh ever resided at the said address and the said property was not ever let out by him during the relevant period to anybody. PW65 Mohammad Shamim Kuraishi has corroborated the testimony of PW64.
32. PW66 Jayant Sood has deposed that his father Sh. Jagdish Chander Sood was allotted Flat No. ED2C, Pitampura, Delhi and he never let out the said flat to anybody including Sarita Singh.
33. In nutshell, all these PWs mentioned in GroupII herein CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 20 above have deposed to the effect that they never allowed any person to use their property for any purpose whatsoever at any point of time though those persons have been shown to have applied for membership of the society.
34. RCS OFFICIALS : PW44 Ashok Bakshi PW46 G S Meena PW60 Virender Kumar Bansal PW61 Manohar Lal Ahuja PW62 J S Sindhu PW77 Balam Singh Aswal
35. PW44 Sh. Ashok Bakshi has deposed that the winding up order dated 21.5.1979 of Sartaj CGHS was issued by him and bears his signature. He has proved the said order as Ex.PW44/A. PW44 has further deposed that the winding up order dated 23.8.1979, placed in file D3, is not the original order and the signatures on the said order are forged. He has proved the said order dated 23.8.1979 as Ex.PW44/B. PW44 has further deposed that at the relevant time, orders were being passed in Hindi language. However, the order Ex.PW44/B is in English language. PW61 Manohar Lal Ahuja has corroborated the testimony of PW44 Ashok Bakshi to the extent that order Ex.PW44/B is a forged one.
36. PW46 G. S. Meena has deposed that he remained posted as Joint Registrar in the Office of RCS and an application dated 24.9.2003 placed in file D3 moved on behalf of Secretary, Sartaj CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 21 CGHS was received in office of RCS. This witness identified the signatures of accused Narayan Diwakar and Yogiraj on relevant notings. This witness has further proved the winding up order dated 23.8.1979 relating to Sartaj CGHS as Ex.PW46/A. PW62 J. S. Sindhu has also identified the signatures of accused Narayan Diwakar and Yogiraj on the notings in the files relating to Sartaj CGHS. He has also deposed that during his tenure i.e August 2003 to March 2004, accused Narayan Diwakar, Yogiraj and D N Sharma were posted in RCS office. PW77 Balam Singh Aswal also identified the signature of accused Narayan Diwakar on Ex.PW49/F.
37. PW60 Virender Kumar Bansal has deposed about the procedure adopted by the RCS office for the revival of Group Housing Cooperative Societies (in short 'CGHS').
38. POST OFFICE EMPLOYEES:
PW2 Radhey Shyam PW3 Sat Narain Chalie PW4 Harish Chand Goyal PW6 Kanwar Pal PW7 Mohd. Minahujuddin PW8 Ram Niwas Sharma PW9 Ram Prakash PW10 Brij Pal Singh PW11 Naresh Kumar PW12 Ramesh Kumar Sharma PW 13 Prem Chand Sharma PW14 Dharam Veer Yadav PW15 Roshan Lal CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 22 PW16 Dhare Ram PW17 Sridev Sharma PW18 Pawan Kumar PW19 Om Prakash PW20 Rajender Singh PW21 Chaman Lal Mehta PW22 Kishan Lal PW23 Vijay Shankar Tiwari PW24 Purushottam Kumar PW25 Kailash Chandra PW26 Rati Ram PW27 Raj Kumar PW29 Vijay Pal PW30 Anil Kumar PW31 Sunil Kumar PW32 Shiv Singh PW33 Subhash Chand PW34 Mahavir Mudgal PW35 Prem Singh PW36 Daya Nand PW37 Subhash Chandra PW38 Iqbal Singh PW 39 Naresh Kumar PW40 Rajesh Kumar Jain PW41 Rajender Singh Tanwar PW42 Sanjay Kumar PW73 Tek Chand
39. All the above mentioned PWs are the postmen working in different areas in Delhi and they have deposed that either the addressees of purported members of Sartaj CGHS were not residing at the given addresses or the addresses were found fake as no such addresses existed in their beats.
CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 23
40. SANCTIONING AUTHORITIES : PW80 S K Khosla PW81 R Narayanaswami
41. PW80 S.K. Khosla, had accorded sanction for prosecution of A6 Yogiraj; PW81 R. Narayanswami had accorded sanction for prosecution of A7 Ramnath and A9 Niranjan Singh.
42. FAKE SOCIETY'S ADDRESS PW63 Anand Rao has deposed that he has been residing at Flat No.8, Pocket13, Sector21, Rohini, Delhi since 1998 till date and no society in the name of Sea Shine CGHS ever existed at the said address. He has feigned his ignorance regarding Sartaj CGHS or Sea Shine CGHS as well as regarding any person by the name of S. K. Gaur, J. K. Dutta, Devinder Singh, Rani Devi, Savita Singh, Ramesh Kumar, Narayan Diwakar etc. He has further deposed that no person from RCS office ever visited his address for any purpose.
43. ADVOCATE PW70 Rashmi Gulati has deposed that she has been practicing as an Advocate since 1982 and has appeared in RCS office in various societies matters including Taj and Sartaj CGHS. She has proved her vakalatnama dated 11.11.2003 pertaining to TajSartaj CGHS filed in RCS office as Ex.PW70/A.
44. FOUNDER MEMBERS : PW1 Abdul Rashid CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 24 PW5 Sayyed Rais Ahmad Zafri PW45 Amanat Ullah Sheikh PW51 Abdul Mannan PW56 Adil Sharif Siddiqui PW57 Lutfe Ali PW58 Mohammad Yunus PW59 Azizur Rehman Siddiqui
45. PW1 Abdul Rashid has deposed that two societies Taj CGHS and Sartaj CGHS were registered vide registration no.135 (H) and 136 (H) respectively in the office of RCS and these two societies were formed with a view to accommodate more members as one society could not have more than 200 members. Taj CGHS was formed in 1972. Both the societies Taj and Sartaj were amalgamated in June, 1998 and a combined registration no.2001 was given under a new name TajSartaj CGHS by the RCS. He was in the Managing Committee of Taj CGHS as well as in society TajSartaj formed after amalgamation. After amalgamation, 358 flats were ready by the end of 1990 and after draw of lots held on 23.2.2001 by the DDA, the flats were handed over to the members of TajSartaj society. PW1 has categorically denied that any person by the name of S. K. Gaur, J. K. Dutta, Joginder Singh, Ramesh Kumar, Sarita Singh and Rama Devi were either members or ever remained in the Managing Committee of Sartaj CGHS. He has categorically stated that all the members of Taj CGHS and Sartaj CGHS were Muslims and no person of any other religion was made a member of these societies. He has further deposed CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 25 that Taj CGHS and Sartaj CGHS were two different legal entities but after formation of TajSartaj CGHS, proceedings were conducted in the name of TajSartaj CGHS only and not separately with respect to Taj CGHS and Sartaj CGHS.
46. PW5 has corroborated the testimony of PW1. He has proved the membership register of TajSartaj CGHS as Ex.PW5/A wherein his name is mentioned at page no. 10; letter of amalgamation of Taj CGHS and Sartaj CGHS as Ex.PW5/B; amalgamation file as Ex.PW5/C; DDA file (draw of lots) as Ex.PW5/D; list forwarded to DDA with forwarding letter dated 1.1.91 of Deputy Registrar, RCS office as Ex.PW5/E; Membership Register of Sartaj CGHS as Ex.PW5/F; list of members of Sartaj CGHS (191 Members) as Ex.PW5/G; allotment of land in favour of Sartaj CGHS as Ex.PW5/H; draw in favour of TajSartaj CGHS as Ex.PW5/J and file relating to liquidation and subsequent revival of Sartaj CGHS as Ex.PW5/K. As per this witness, all the relevant documents were handed over to CBI vide seizure memo Ex.PW5/L.
47. PW45 has corroborated the testimony of PW1 and PW5.
48. PW51 was also the promoter member of Sartaj CGHS and has corroborated the testimony of PW1 and PW5. He has deposed that after TajSartaj CGHS was formed, he was allotted a flat in the year 1992. He has denied his signatures on application CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 26 Ex.PW51/A and affidavitEx.PW51/B relating to Sartaj CGHS. He has denied having attended any meeting of Sartaj CGHS. The testimony of PW51 has remained unrebutted.
49. PW56 is the son of one of the promoter members of Sartaj CGHS. He has denied the signatures of his father on various documents purported to be executed by him in relation to Sartaj CGHS.
50. PW57, PW58 and PW59 have also deposed to the effect that though they were founder members of Sartaj CGHS but documents such as application form for membership, affidavits, proceedings, byelaws etc. do not bear their signatures.
51. CBI OFFICIALS : PW83 P K Khanna PW84 Vijay Chettia PW85 C S Prakash Narayanan
52. PW83 P K Khanna is a formal witness who partly conducted the investigation before handing it over to Sh. C S Prakash Narayanan.
53. PW84 Vijay Chettia is also a formal witness who received certain documents during investigation which were seized vide memo Ex.PW84/A.
54. PW85 C. S. Prakash Narayanan is the IO of this case who investigated the matter and after completing the investigation, filed chargesheet in the court.
CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 27
55. OTHER WITNESSES : PW43 Naresh Saxena PW47 Kulwant Kaur PW52 Ram Naresh Thakur PW53 Dr. Pamela Walia PW71 Neeraj Kumar PW74 Mahinder Singh PW76 Ajay Kumar PW78 Awanish Kumar PW79 Yashwant Kumar PW82 R K Singh PW87 Mohinder Singh
56. PW43 Naresh Saxena has deposed that one Srichand had asked him for publication of advertisement in the newspaper in relation to marriage of his son as well as for the societies. He did the job as per his directions. He has further deposed that certain documents were seized by the CBI from his office and he proved the production cum seizure memo as Ex.PW43/A; advertisement release booklet as Ex.PW43/B and bill book as Ex.PW43/C.
57. During his crossexamination, PW43 has admitted that it was accused Srichand who had given him the order for publication in the newspaper with regard to the marriage of his son. He denied the suggestion that accused Srichand did not book advertisements on behalf of some of the cooperative societies.
58. PW47 Kulwant Kaur is the stamp vendor who has deposed that the stamp papers were sold to one Ravi Robinson. She CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 28 has categorically denied that in September 2003 any stamp paper was sold to Sartaj CGHS.
59. PW52 Ram Naresh Thakur is an official from the DDA who has corroborated the testimony of PW1 as regards the amalgamation of Taj CGHS and Sartaj CGHS. He has deposed that the address of Sartaj CGHS was changed from Turkman Gate to C156, Minto Road Complex, New Delhi.
60. PW53 Dr. Pamela Walia is the wife of the Notary who had allegedly attested the affidavits Ex.PW53/A collectively. However, PW53 has denied her husband having attested these documents.
61. PW71 Neeraj Kumar has deposed that accused Srichand used to come to him regarding Cosmos CGHS and accused Sushil Kumar Sharma was his employee who also used to come to him for society related jobs.
62. PW74 Mahinder Singh is a formal witness.
63. PW76 Ajay Kumar has deposed that accused Anna Wankhede (A3) and accused Sushil Kumar Sharma (A1) used to come to him for manual typing jobs relating to societies. CBI had taken specimen/samples of typing of four typewriters as well as seized two typewriters. He proved the seizure memo as Ex.PW76/A and typewriters as Ex.PW76/B and Ex.PW76/C.
64. PW78 Awanish Kumar is the stamp vendor who had CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 29 issued the stamp papers bearing registered serial number as Ex.PW78/A (collectively).
65. PW79 Yashwant Kumar has deposed that Wankhede (A3) and Sushil (A1) used to come to his father for typing job relating to affidavits on manual typewriters.
66. PW82 R. K. Singh has deposed that he remained Commissioner (Land Disposal) in DDA from 2003 to 2006. He has stated the procedure regarding the allotment of land by the DDA.
67. PW87 Sh. Mohinder Singh is a handwriting expert who has proved the GEQD opinions/reports and the reasons in support thereof.
IV STAND OF ACCUSED UNDER SECTION 313 CR.P.C:
68. The statements of all the accused under Section 313 Cr.P.C were recorded when a chance was given to explain the incriminating evidence against them. All the accused have claimed that they have been falsely implicated in this case. A4 to A9 were the public servants who have claimed that they acted in good faith in accordance with law. According to all the accused, the prosecution witnesses are interested witnesses and have falsely deposed against them. None of the accused has examined any witness in their defence.
V. RIVAL CONTENTIONS :
69. Sh. N. P Srivastava, Ld. PP for the CBI has contended that CBI has proved its case against all the accused beyond reasonable CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 30 doubt. According to him, all the public servants were in connivance with private persons and they were helping them, actively and intentionally, so that the Sartaj CGHS which was amalgamated with Taj CGHS and was given a new name TajSartaj CGHS in June 1998 might again be allotted land though TajSartaj CGHS was allotted land in the year 1992. All the accused persons knew that Sartaj CGHS had amalgamated with Taj CGHS. Sartaj CGHS was falsely revived again by the accused persons. According to Ld. PP for CBI, a fake winding up order was produced by private persons which was accepted by co accused (public servants) without proper verification. It were the private persons who wanted to revive the Sartaj CGHS which had already been allotted land after amalgamation. However, Sartaj CGHS was projected as having not allotted the land so that the land again might be allotted by the DDA. It is further contended that in view of judgment of Delhi High Court, the land was to be allotted by the DDA on the basis of seniority which was fixed on the basis of date of registration of the society. According to Ld. PP, a newly created society would not have got any land and, therefore, false and forged documents were created with the active connivance of RCS officials. It was so done to project as if the said society was seeking its revival. According to Ld.PP for CBI, all the accused are liable to be convicted in the present case.
70. Sh. Abhishek Prasad, Ld. Counsel for accused Srichand CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 31 (A2) has contended that only three witnesses i.e. PW43 Naresh Saxena, PW85 (IO) and PW87 (GEQD Officer) are relevant so far as A2 is concerned. None of these witnesses have said anything against A2. PW43 has deposed that he had received payment for publication for advertisement by way of cheque. However, the cheque which could have been vital piece of evidence for establishing the identity of the person issuing the cheque was neither seized nor produced before the Court. The cash memoEx.PW43/C and release bookletEx. PW 43/B nowhere mention that the advertisement order was placed by A2. According to Ld. Counsel, even if for the sake of argument it is considered that the said advertisement order was placed by A2, it has no value in the eyes of law as the alleged incident of placing order is more than a year later to the period of alleged conspiracy to revive the Sartaj CGHS. The said society was revived on 4.12.2003 while the alleged advertisement was booked on 4.1.2005. Ld. Counsel has vehemently contended that the GEQD opinions are not admissible under the law as the person who gave the reasons in support thereof was not examined in the Court. Lastly, it is contended that CBI had no jurisdiction to register FIR in this case. A2 has filed written arguments.
71. As regards accused A1 and A3, Sh. Abhishek Prasad, Ld. Counsel has contended that the opinion of GEQD simply has to be ignored because it is in complete violation of S.311A of Cr.PC which CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 32 mandates that w.e.f 23.6.2006, the writing of a person required for investigation has to be under the orders of Magistrate. However, no such permission of the Magistrate was taken for obtaining the specimen handwritings/signatures of A1, A2 and A3. It is, thus, contended that obtainment of specimen handwriting / signatures of these accused and its manner were in flagrant violation of law. These accused were neither members nor beneficiaries of the society and as no land was allotted to Sartaj CGHS and, therefore, it cannot be assumed that they were coconspirator in commission of the offences. The investigation is tainted and motivated. There is no wrongful loss or wrongful gain to anyone. These accused are, therefore, liable to be acquitted.
72. As regards A4 & A6, Sh. Abhishek Prasad, Ld. Counsel has contended that the revival order of the society by A4 is neither illegal nor contrary to public interest. There is nothing on record that revival of the society was influenced by any corrupt or illegal means or was passed by A4 abusing his official position. Membership is the subject matter of the society and A4 and A6 had no role in it. It is further contended that the file was processed in its natural course and there was nothing unusual to raise suspicion. According to him, the cancellation of winding up order was passed under Section 63 (3) of DCS Act and there is no evidence to show that either A4, A6 or other RCS officials had any knowledge that the documents including CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 33 the winding up order submitted before them were forged documents. It is further contended that there is no evidence of any association of these accused with private persons including A1 to A3. There is nothing on record to show that these accused gained any pecuniary advantage from anyone. Neither these accused nor their family members were members of Sartaj CGHS and, as such, they are not to be benefitted if the land would have been allotted by the DDA. According to Learned Counsel, there is nothing on record to show that any loss was caused to DDA or Government. A4 and A6 have filed joint written submissions.
73. As regards, A7, A8 and A9, Sh. S. K, Bhatnagar, Ld. Counsel has contended that these accused had no role to play in the revival of the society. There is nothing on record that these accused had the knowledge that A1 was impersonating himself as office bearer of the Sartaj CGHS. Sh. S. K. Bhatnagar, Learned Counsel has further contended that all these accused have been falsely implicated in the present case by the CBI. These accused were merely discharging their respective official duties and they had no reason whatsoever to disbelieve or suspect that the documents produced before them by private persons were forged and fabricated. According to him, even otherwise, it was merely a case of preparation and not an attempt. These accused being public servants enjoy immunity from prosecution under Section 95 of DCS Act. Learned Counsel has further contended CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 34 that there is nothing on record that any fictitious reports had been submitted by these accused on the basis of which the society was revived and, therefore, they cannot be labeled as coconspirators. Lastly, he has contended that no wrongful loss or wrongful gain was caused to anyone and, as such, these accused are liable to be acquitted. A7, A8 and A9 have filed separate written submissions.
74. Sh. Neeraj Verma, Ld. Counsel for A5 Dayanand Sharma has contended that none of the prosecution witness has stated anything against A5. According to him, A5 is liable to be acquitted in this case.
75. In support of their respective contentions, learned Counsel for all the accused persons have also relied upon several judgments which I would refer to at appropriate places.
VI EVALUATION OF EVIDENCE AND FINDINGS :
(A) ACCUSED NOT NAMED IN THE FIR
76. Sh. S. K. Bhatnagar, learned Counsel has contended that the name of A8 is not mentioned in the FIR. During preliminary enquiry, CBI did not find any primafacie material against A8 for prosecuting him. The said accused was later on charge sheeted in the present case in order to save the real culprits. Learned Counsel has contended that investigation has not been conducted by the IO in a fair manner.
77. It is not at all necessary that the names of all the accused CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 35 persons including A8 should have been mentioned at the time of registration of the FIR. It is also not required that the entire facts should have been mentioned in the FIR. Registration of FIR is only a starting step and only after the FIR, the investigation is carried out by the investigating agency. Thus, FIR is not a concluding step. In my opinion, mere nonmentioning of name of A8 in the FIR is not a ground to exonerate him.
(B) SANCTION :
78. Sh. S. K. Bhatnagar, learned Counsel has raised serious objection with respect to the validity of sanctions. It is contended that sanction orders are nonest in law as the same have not been obtained from the competent Authorities. According to him, even otherwise, the sanction orders have been accorded without application of mind. As per Ld. PP for CBI, there is no illegality in grant of sanction and the sanction orders are with proper application of mind.
79. The sanction for prosecution of an accused under the P.C. Act is not a mere formality and it has to be accorded after complete satisfaction. Sanction order must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning Authority. Simultaneously, it has also to be kept in mind that this provision does not intend that a public servant who is alleged to be guilty should escape the consequences of his criminal act by raising technical plea about invalidity of the sanction. This section CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 36 safeguards the innocent but does not shield the guilty.
80. PW80 S. K. Khosla and PW81 R. Narayanswami had accorded sanctions for prosecution of A6 and A7/A9 respectively. Both these PWs have deposed that they had perused the documents before granting sanction. During their crossexamination nothing has come on record that the sanctions were accorded by them without due application of mind.
81. Further, it has been contended by Sh. S. K. Bhatnagar that sanction for prosecution should have been taken from that particular officer only who was posted as competent Authority at the time of commission of the offence. This argument is devoid of any merit. The only thing required to be seen is whether the sanction has been obtained from the competent Authority or not. The judgments R. S. Nayak Vs. A. R. Antulay, AIR 1984 SC 684 and Prakash Singh Badal Vs. State of Punjab, 2006 (4) Crimes 388 (SC) are not applicable to the facts of the present case. It is the settled law that merely because there is any omission, error or irregularity in the matter of according sanction, that would not affect the validity of the proceeding unless such error, omission or irregularity results in failure of justice. Though not referred to or relied upon, for taking this view I am supported with the judgment of Apex Court reported as State of Bihar Vs. Rajmangal Ram, Crl. Appeal No. 709710 of 2010 decided on 31.03.2014. From the perusal of evidence on record, there is nothing to show that there CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 37 was any failure of justice or serious prejudice to the accused because of alleged improper sanction.
82. Further, it has been contended by Ld. Counsel Sh. S. K. Bhatnagar that no mandatory sanction has been obtained under Section 197 Cr.P.C. and, therefore, these accused could not have been prosecuted. This contention does not hold water as the prosecution is not required to seek sanction for prosecuting the accused persons twice. When an accused is granted sanction under Section 19 of PC Act, there is no need for again obtaining sanction under Section 197 Cr.P.C. If the contention of learned Counsel is accepted, the purpose of Section 19 of PC Act and the legislative intent would be frustrated. Though not referred to or relied upon, for taking this view I am supported with judgment Neera Yadav Vs. CBI, (2006) 2 All. LJ
442. Similar is the view taken by our Delhi High Court in judgment reported as Dharambir Khattar Vs. CBI, (2009) 159 DLT 636.
83. On careful perusal of entire testimony of PW80 and PW81, I am of the opinion that Ld counsel has not been able to show any substantial or compelling reason which may persuade me to hold that sanction orders are invalid or nonest law.
84. Sh. Abhishek Prasad, learned Counsel for A4 and A6 has contended that sanction for prosecution should have been obtained under Section 197 Cr.P.C. before prosecuting the accused and in support of his contention, he has relied upon judgments State of M. CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 38 P. Vs. Sheetla Saha, 2009 (VII AD) SC 630, C. P. Thakur Vs. CBI, 2009 (110) DRJ, K. R. Purushothaman Vs. State of Kerala, AIR 1996 SC 90 and Dwarika Prasad Vs. State, 1996 (2) CC Cases 6 (Delhi). I have gone through these judgments. They are not applicable to the facts of the present case.
85. So far as accused Narayan Diwakar (A4) is concerned, no sanction under Section 19 of P.C Act was required as he was no longer in service when the chargesheet was filed for the purpose of taking cognizance. The accused has been charged for committing the offence of criminal conspiracy. Though not referred to or relied upon, in judgmentHari Har Prasad Vs. State of Bihar, 1972 (3) SCC 89, it has been held that as far as the offence of criminal conspiracy under Section 120B IPC was concerned, it could not be said to be of the nature mentioned in Section 197 Cr.P.C. meaning thereby it was not part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. It was, thus, held that want of sanction under Section 197 Cr.P.C. was no bar to prosecution.
(B) CONSENT OF GOVT. BEFORE REGISTRATION OF FIR
86. Next, it is contended that the present case was not registered on the basis of order of High Court of Delhi but was registered on the basis of some source information. In nutshell, it is contended that as the ingredients of DSPE Act and Section 154 Cr. PC CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 39 were not complied with, FIR could not have been registered. I find no illegality in the registration of the FIR in the present case.
(C) CHEATING
; COMMITTING
FORGERY FOR
THE PURPOSE OF CHEATING AND USING
AS GENUINE A FORGED DOCUMENT
87. The definition of cheating is provided in Section 415 IPC. For the offence of cheating, one of the ingredients is that the alleged act must have been committed either dishonestly or fraudulently.
88. Section 24 IPC defines 'dishonestly'. It reads as follows :
"Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'"
Section 25 IPC defines 'fraudulently'. It reads as follows :
"A person is said to do a thing 'fraudulently' if he does that thing with intent to defraud but not otherwise."
89. All the accused have vehemently contended that there was no cheating as there was no wrongful loss to anyone and there was no corresponding wrongful gain to anyone and, therefore, the ingredients of Section 415 IPC are not attracted to the present case. According to them, there is nothing on record to suggest that any loss was caused either to the DDA or the RCS. The crucial ingredient being missing, the accused cannot be convicted for the offence of cheating.
90. PW1, PW5, PW45, PW51, PW57, PW58, PW59 were the promoter members of Sartaj CGHS who became the CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 40 members of Sartaj CGHS in 1972. PW1 has categorically deposed that though Sartaj CGHS was registered in 1972 but the same was amalgamated with Taj CGHS in June 1998 and was given new registration number with society name as TajSarjat CGHS. All the members of TajSartaj CGHS were handed over flats after the draw of lots held on 23.2.2001 by the DDA. He has categorically denied that any person by the name of S. K. Gaur, J. K. Dutta, Joginder Singh, Ramesh Kumar, Sarita Singh and Rama Devi were either members or ever remained in the society of Sartaj CGHS. As per this witness, all the members were Muslims and after amalgamation the proceedings of society was conducted in the name of TajSartaj CGHS and not separately. The other founder members have corroborated the testimony of PW1. PW51 has denied his signatures on the documents such as application forms and affidavits vide which he has been falsely shown to be member of Sartaj CGHS. The testimony of PW51 has remained unrebutted. Similar are the testimonies of PW57, PW58 and PW59. The testimonies of these witnesses clearly show that after the Sartaj CGHS was amalgamated with Taj CGHS, members were alloted flats. However, certain promoter members were falsely shown to be the members of Sartaj CGHS with a view to get the land allotted again though TajSartaj CGHS had already been allotted land by the DDA. PW46 Ashok Bakshi has categorically stated that winding up order dated 23.08.1979 (Ex. PW 46/B) does not bear his signatures CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 41 and someone has forged the same. He has admitted his signatures on winding up order dated 21.5.1979 (Ex. PW 44/A). Thus, the winding up order dated 23.08.1979 of the society was forged for the revival of Sartaj CGHS though the land had already been allotted to amalgamated TajSartaj CGHS by the DDA.
91. GroupI witnesses (under the heading fake members) have deposed that they never become members of the Sartaj CGHS. However, they have been falsely shown to be its members. Thus, it has been established by the CBI that fake persons were shown to be the members of the society with a view to get the society revived.
92. From the testimonies of postmen, it has been established that either the addressees were not residing at the given addresses or the addresses were found fake as no such addresses existed. The testimonies of postmen prove that nonexistent persons were made fake members of the society. It has also been established from the testimonies of GroupII witnesses (under the heading fake members) that they never allowed any person to use their property for any purpose whatsoever at any point of time though fake persons were shown to have applied for the membership of the society.
93. PW63 Anand Rao has categorically deposed that property i.e. Flat No. 8, Pocket13, Sector21, Rohini, Delhi was never used as the office of Sartaj CGHS or Sea Shine CGHS. Thus, it has been established that no office of the society was operating from the CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 42 said address and fake address was used to show that the society was having its office at the said address and the proceedings of the society were forged and fabricated. Thereafter, the same were filed in Office of RCS with an object to revive the Sartaj CGHS.
94. Thus, from the testimonies of above referred witnesses it has been proved by the prosecution that the Sartaj CGHS after amalgamation in June 1998 was granted land by the DDA but in September 2003 false documents were submitted for the revival of Sartaj CGHS by creating false records.
95. It has been proved by the prosecution that Sartaj CGHS was registered in 1972 and a false winding up order dated 23.08.1979 was shown to have been passed by PW44 Ashok Bakshi. A letter dated 24.09.2003 (Mark 46/X) was received on behalf of the society and the said letter was signed by one S. K. Gaur claiming himself to be the Secretary of the society. The signatures of accusedpublic servants have been proved by the prosecution on various notesheets. These accused have not denied their signatures/initials thereon.
96. During investigation, questioned documents along with specimen signatures / handwriting of A1, A2 and A3 were sent to GEQD, Shimla for obtaining opinion. PW87 Sh. Mohinder Singh has proved opinions/reports and the reasons in support thereof.
97. A letter dated 24.9.2003 signed by one S. K. Gaur, claiming himself to be Secretary of Sartaj CGHS Ltd., was received in CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 43 the Office of RCS on 24.9.2003. It discloses that the said society was registered with RCS at serial no. 136 (H) dated 24.6.1972 with an object to acquire land and to construct dwelling units for allotment to the members of society. The society was registered at its address 1855, Gali Wazir Bag, Turkman Gate, Delhi and was shifted to C156, Minto Road Complex, New Delhi and, thereafter, to Flat no. 8, Pocket13, Sector21, Rohini, Delhi. However, the society was wound up. The relevant paras of the said letter are reproduced herein below:
"...the matter regarding revival of the society was put up before the Special GBM of the members of the society held on 21.09.2003, it was unanimously approved by the GBM to pray before your goodself to withdraw such orders issued U/S 63 of DSC Act 1972 if any for the revival of the society and to approve our final list of 139 members so as to achieve its object to provide shelters to the members of the Society, and all the members are interested to run the society. The Election of the MC was conducted time to time and the last Election was held on 21.09.2003 in the AGM (copy of the Election proceedings enclosed) and upto date accounts of the society are ready for get audited.
It is, therefore, prayed that order passed U/S 63 DCS Act 1972 may kindly be withdrawn and the society may be revived U/S 63 (3) of DCS Act 1972 considering the plight of the members of the society having their life dram to have a shelter of their own. The Managing Committee of the Society also seek condonation for the irregularities occurred due to lack of knowledge to run the society, if any. The MC of the society assure you that in future the society will fulfill all the statutory obligations as provided under DCS Act & Rules & Byelaws framed thereunder".
98. PWs have categorically denied having become members CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 44 of Sartaj CGHS Ltd. Apart from the oral testimony of the PWs, there is GEQD report also against A1, A2 and A3. During investigation, CBI took the help of handwriting expert and sent various questioned handwritings and signatures to GEQD, Shimla and as per the report of expert, it was found that it was A1, A2 and A3 who had been creating false/forged documents to revive the society.
99. Sh. Abhishek Prasad, Ld. Counsel has contended that GEQD opinion dated 22.8.2006 (D33, Ex. PW 87/D1 and supplementary opinion dated 4.9.2006 (D4, Ex. PW 87/E1) are concocted documents and cannot be relied upon. He has seriously disputed the manner in which his specimen handwritings and signatures were taken during the investigation. According to him, the specimen handwritings/signatures had been taken without the orders of the Court. The opinion of GEQD has to be ignored as it is in violation of S.311A Cr.PC and Sapan Haldar Vs. State, 191 (2012) DLT 225 (FB). Thus, this evidence cannot be said to be incriminating against A1, A2 and A3. It is an admitted fact that no such permission was taken for obtaining the specimen handwriting of A1, A2 and A3. In support of his contention, he has relied upon judgmentsRaj Kumar Vs. State, Crl. A 582/2012 decided by the Delhi High Court on 18.10.2012; Parkash Chand Vs. State, Crl. A 342/1999 decided by Delhi High Court on 18.3.2014; Sanjay Vs. State; Crl. A 1151/2010 decided by Delhi High Court on 24.11.2014 and Bharat Aneja Vs. CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 45 State, Crl. A 652/2011 decided by Delhi High Court on 20.3.2015. According to him, in view of these judgments no reliance can be placed on judgment Ravinder Singh @ Dara Singh Vs. Republic of India, AIR 2011 SC 1436, relied upon by Ld. PP for CBI.
100. The reliance placed upon S.311A Cr.P.C, Sapan Haldar (Supra) and other judgments referred in para hereinabove are of no help to A1, A2 and A3 in view of the judgment of the Apex Court on the same issue. In Ravinder Singh @ Dara Singh (Supra), the Apex Court has held that the Investigating Officer has power to take specimen signatures during the investigation even without permission of the Court and that report of such an expert based on such specimen signatures/ handwritings could be used as evidence. Even otherwise, though not referred to or relied upon, in judgmentUmesh Kumar Vs. State, 2013 (IX) AD (SC) 581, it has been held by the Apex Court that even if a document is obtained in improper and illegal manner, such a document is admissible in evidence provided the same is relevant and its genuineness is also substantiated. Thus, I am of the opinion that in view of the abovereferred two Apex Court judgments, there is no merit in the contention of A1, A2 and A3 that their specimen handwritings/ signatures were taken in flagrant violation of law. There is nothing in the testimonies of witnesses that A1, A2 and A3 were coerced to give specimen handwritings/ signatures. Under Article 141 of the Constitution of India, the judgments delivered by the Apex CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 46 Court are binding on all the Courts subordinate to it.
101. PW86 Mahinder Singh had examined the questioned and specimen documents. He has deposed that he is M.Sc in chemistry and received several specialized training in Scientific examination of documents including handwriting identification and forgery detection from Govt. of India Laboratory at Hyderabad. He is in profession for the last about 39 years and has independently examined thousands of documents expressing his opinion thereon. He further deposed that he has appeared as an expert witness in various courts of law throughout the country and prior to his promotion and posting at GEQD Hyderabad w.e.f. 01.02.2008, he remained posted as Dy. GEQD and AGEQD in the Office of GEQD Shimla. He examined the specimen and questioned handwritings of A1, A2 and A3 and also two typewriting machines. Thus, PW87 falls within the category of an expert under Section 45 of the Indian Evidence Act and he was supplied with questioned documents as well as specimen handwritings of A1, A2 and A3 and after careful and thorough scientific examination he gave the opinionsEx.PW 87/D1 and E1 and also proved the reasons in support thereof given by Sh. I. S. Rao as Ex. PW 87/D2 and E2. In the said reports, the following documents were found to have been signed/written/initialed by A1, A2 and A3: CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 47 Forged signatures by accused Sushil Kumar Sharma S. Questioned Document Questioned Document Number File No.
1. Request letter for revival Q303, Q304, Q305 D4 of Sartaj CGHSsignature of S K Gaur, Secretary
2. List of membersSignature Q319 D4 of S K Gaur, Secretary
3. Affidavit and annexures - Q306, Q307, Q308, Q309, Q310, D4 Signature of S K Gaur, Q312,Q 313, Q314, Q315 Secretary
4. List of Committee Q311 D4 MembersSignature of S K Gaur
5. List of Members Q321, Q323, Q325, Q327, Q329, D4 Signature of S K Gaur Q331, Q333, Q335, Q337, Q339, Q341, Q343, Q345, Q347, Q349, Q351, Q353
6. Various letters on letter Q360 to Q363 D4 head of Sartaj CGHS Signature of S K Gaur
7. Letter to RCS Office Q373 D4 Signature of S K Gaur
8. Various Proceedings of Q374 to Q385 D4 Sartaj CGHSSignature of S K Gaur CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 48
9. Proceedings Register Q386, Q387, Q388, Q389, Q390, D4 Signature of S K Gaur, Q391, Secretary
10. Miscellaneous documents Q394, Q395, Q396, Q397, Q398 D4
- signature of S K Gaur
11. List of members and Q401, Q402, Q404, Q406, Q407, D5 proceedings register Q409, Q412, Q414, Q415 to Q423 Signature of S K Gaur
12. Applications for Q424 to Q561 D5 membershipSignature of S K Gaur
13. Miscellaneous documents Q562 to Q609, Q612 to Q621, D5 Signature of S K Gaur
14. Inspection Report Q400 D5 Signature of S K Gaur
15. Miscellaneous documents Q629, Q639, Q649, Q659, Q669, D4 Signature of S K Gaur Q670, Q672, Q674, Q676, Q678, Q679
16. Proceedings register Q681, Q683, Q685, Q687, Q689, D3 Signature of S K Aggarwal Q690
17. Agenda Notice Signature Q691 D3 of S K Gaur CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 49
18. Annexures to Audit Q693, Q699, Q702, Q705, Q708, D3 ReportSignature of S K Q709, Q711, Q714, Q717, Q720, , Gaur Q723, Q724, Q726, Q729, Q732, Q735, Q738, Q739, Q741, Q744, Q747, Q750, Q753, Q754, Q756, Q759, Q762, Q765, Q768, Q769, Q771, Q774, Q 777, Q780, Q783, Q784, Q786, Q789, Q792, Q795, Q798, Q799 etc
19. Byelaws signature of S K Q1186, Q1192, Q1198, Q1204, D3 Gaur Q1210, Q1216, Q1222, Q1228, Q1234, Q1237, Q1240, Q1243, Q1249
20. Handwriting (Page 300C) Q1245, Q1247 D3 Forged handwriting by accused Srichand S. No. Questioned Questioned Document Number File Document
1. Proceedings Q675, Q677 D4 register handwriting
2. Proceeding Q680, Q682, Q684 and Q686 D3 register handwriting Forged signatures by accused Anna Wankhede S. No. Questioned Document Questioned File Document Number
1. Affidavit Signature of Mohan Singh Q16, Q17 D5 CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 50
2. Affidavit Signature of Shahabuddin Q18, Q19 D5
3. Affidavit Signature of Balam Singh Q20, Q21 D5
4. Affidavit Signature of Prem Walia Q24, Q25 D5
5. Affidavit Signature of Akash Q28, Q29 D5
6. Affidavit Signature of Satveer Singh Q32, Q33 D5
7. Affidavit Signature of Prakash Mehta Q36, Q37 D5
8. AffidavitSignature of Subhash Anand Q42, Q43 D5
9. AffidavitsSignatures of Narmrat Suri, Q58, Q59, Q68, D5 Pravez Akhtar, Manju Akhtar, Q69, Q70, Q71, Mahender Singh Rawat and several Q82 to Q89, Q96 other members to Q101, Q106, Q107, Q110, Q111, Q120 to Q123, Q128, 129, Q134, Q135, Q138 to Q141 etc 10 AffidavitSignatures of J K Dutta Q316, Q317 D4 11 List of members Signature of Devender Q320, Q324, Q328, D4 Singh, Treasurer Q332, Q336, Q340, Q344, Q348, Q352 12 List of membersSignature of J K Dutta, Q322, Q326, Q330, D4 President Q334, Q338, Q342, Q346, Q350
13. List of MembersSignature of J K Dutta, Q403, Q408, Q411 D5 President
14. List of membersSignature of Devender Q405, Q410, Q413 D5 Singh, Treasurer CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 51
15. Agenda NoticeSignature of Q610, Q611 D4 Ramesh, Election Officer
16. Signature of J K Dutta on Q692, Q698, Q701, Q704, Q710, D3 various proceedings of Q713, Q716, Q719, Q725, Q728, Ex.PW8 Sartaj CGHS Q731, Q734, Q740, Q743, Q746, 5/B Q749Q, Q755, Q758, Q761, Colly.
Q764 etc
17. Signatures of Devender Q694, Q700, Q703, Q706, Q707, D3 Singh on various Q712, Q715, Q718, Q721, Q722, proceedings of Sartaj Q745, Q775, Q811, Q823, Q847, CGHS viz Balance Sheet, Q872, Q892, Q916, Q940, Q985, Income and Expenditure Q1000, Q1015, Q1045, Q1075, Account, List of members Q1090, Q1108, Q1117, Q1153, of different years Q1183 etc
18. ByelawsSignature of J K Q1185, Q1191, Q1197, Q1203, D3 Dutta Q1209, Q1215, Q1221, Q1227, Q1233, Q1236, Q1239, Q1242 and Q1248
19. Byelaws Signature of Q1187, Q1193, Q1199, Q1205, D3 Devender Q1211, Q1217, Q1223, Q1229, Q1235, Q1238, Q1238, Q1244 and Q1250
102. As per PW87 Sh. Mohinder Singh, the respective questioned handwritings/signatures have been written by accused Sushil Kumar Sharma (A1), Srichand (A2) and Anna Wankhede (A3).
103. Secondly, it is contended that Sh. I. S. Rao who gave reasons for opinion was not examined by the CBI. The GEQD had advised in their letter accompanying the report that CBI may call Sh. CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 52 I. S. Rao as a witness and in spite of that Sh. I. S. Rao was not summoned. Sh. I. S. Rao was/is the only person who gave reasons for the opinion. In nutshell, it is contended that opinion of an expert will not be read as evidence unless he is examined before the Court and is subjected to crossexamination. In support of his contention, Ld. Counsel has relied upon judgments The Crown Prosecutor Vs. Gopal, AIR 1941 Mad 551; Shashi Kumar Vs. Subhod Kumar, AIR 1964 SC 529; State Vs. Chales, AIR 1996 SC 3473; Magan Bihari Vs. State, AIR 1977 SC 1091 and Rajendran Vs. State, MANU/TN/0594/1992. I have gone through the above referred judgments cited before me. Sh. I. S. Rao could not be examined before the Court as he has expired. The opinions bear the signatures of PW87 as well as of Sh. I. S. Rao. However, the reasons in support of their opinions were given by Sh. I. S. Rao. The opinions have been proved by PW87. PW87 has also proved the reasons in support of the said opinions as he has categorically stated that he had seen Sh. I. S. Rao signing and writing during the official course of duties. There is no dispute regarding the legal proposition laid down by the higher courts in the judgments cited before me. I have already held that PW87 is an expert witness. He was thoroughly crossexamined by the accused persons. However, his testimony has remained unshaken, fully believable and reliable. There is nothing to show that PW87 did not apply proper procedure for comparison purpose. The opinion of expert is a relevant fact as per CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 53 Section 45 of the Indian Evidence Act. The reports by PW87 Mohinder Singh indicate that it were accused Sushil Kumar Sharma (A1), Srichand (A2) and Anna Wankhede (A3) who had been appending the false signatures of fake officer bearers and other fake members of Sartaj CGHS Ltd. as mentioned in the chart give herein above in the judgment. Thus, it has been proved by the prosecution beyond reasonable doubt that it were Sushil Kumar Sharma (A1), Srichand (A2) and Anna Wankhede (A3) who were responsible for creating false / forged documents for the purpose of revival of the Sartaj CGHS.
104. Ld. PP for CBI has relied upon judgment Murari Lal Vs. State of Madhya Pradesh, AIR 1980 SC 531, wherein it has been held that there is no rule of law that opinion / report of handwriting expert must never be acted upon unless substantially corroborated. However, in the present case there is sufficient oral/circumstantial evidence of promoter members, postmen, fake members etc. that false documents were created for revival of Sartaj CGHS.
105. Thirdly, it is contended that GEQD opinion (D33) and Supplementary GEQD opinion (D34) are faulty and are not reliable as they are not based on any scientific approach. These were prepared just on the advice of CBI. Ld. Counsel has drawn the attention of this Court to Q676 and Q681 which have been shown to be written by A1 in GEQD opinion dated 22.8.2006 (D33) while in supplementary CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 54 opinion dated 4.9.2006 they have been shown to be written by A2. According to him, it clearly shows the callous nature in which the opinions D33 and D34 prepared. The supplementary opinion (D34) was prepared in haste as it was given just in a span of two days. I have gone through the reports as well as the testimony of PW87. In his examination in chief PW87 has clarified that in Ex. PW 87/E1 and Ex. PW 87/E2 there are typographical errors as word 'to' in place of 'comma' are mentioned. According to him, Q675 to Q677, Q680 to Q682 are to be read as Q675, Q677, Q680, Q682 meaning thereby Q676 and Q681 are not to be included in abovereferred opinion paras/ reasons thereof. There is no crossexamination on this point by the accused persons and even no suggestion was put to PW87 to the effect that there was no typographical error as has been stated by PW87. Thus, it has been established that these were typographical errors in Ex. PW87/E1 and Ex. PW87/E2. Just because the supplementary opinion was given by GEQD Shimla within threefour days, it cannot be assumed that the same was prepared in a haste without conducting the proper scientific examination.
106. From the evidence on record it has been established by the prosecution beyond reasonable doubt that Sartaj CGHS was registered on 15.6.1972 and after its amalgamation with Taj CGHS in June 1998, the original (real) members of Sartaj CGHS were given flats after the draw of lots by the DDA in February 1991. Thus, there CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 55 was no question of revival of Sartaj CGHS again in the year 2003 by the RCS. The testimonies of PW1 and other founder members is relevant and the same have been discussed in the preceding paras of this judgment. From the testimonies of postmen, fake members (under the heading GroupI and GroupII), PW43, PW63 and PW87, it has been established by the prosecution that a false list of members was submitted in the Office of RCS for the revival of Sartaj CGHS. The various documents for the revival of Sartaj CGHS were forged and fabricated by A1 to A3. Once the members of Sartaj CGHS had already been allotted flats by the DDA in February 1991, there was no question of any application being made on behalf of Sartaj CGHS in September 2003 for revival of said society.
107. Sh. S. K. Bhatnagar, Ld. Counsel has contended that at the most it can be said that it is a mere case of preparation and not an attempt. I do not agree with the contention of Ld. Counsel. A large number of documents including winding up order Ex. PW 44/B (dated 23.9.1979) were forged and fabricated by A1 to A3 and were presented in the Office of RCS. However, the land could not be allotted as the illegal activities committed by the accused persons came to light and they could not succeed in their attempt to cheat. Accused had done everything which they could have done for the allotment of land from DDA and, thus, I am of the opinion that it is a case of attempted cheating which the prosecution has proved beyond CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 56 reasonable doubt.
108. All the accused have further contended that there was no cheating as no wrongful loss to anyone and corresponding wrongful gain to anyone was caused. This contention is without any merit. The land was to be allotted by the DDA on the basis of seniority which was fixed on the basis of the date of registration of the society. There was a long queue of societies seeking allotment of land from the DDA. A newly created society either would not have got any land or would have to wait for a long time for getting the land allotted and, therefore, false & forged documents were created with a view to revive a society which was registered in the year 1972. Thus, the real aggrieved person would be the next eligible society which would have been allotted the land, had accused not tried to revive Sartaj CGHS. Therefore, there was an attempt to cause wrongful loss to such eligible society and there was an attempt to have wrongful gain by accused purportedly representing Sartaj CGHS.
109. To summarize, from the abovereferred discussion, the following facts stand proved by the prosecution :
i) Sartaj CGHS was registered on 15.06.1972 vide registration number 136(H).
ii) Sartaj CGHS was amalgamated with Taj CGHS and a new registration no. 2001 was allotted in June 1988.
iii) Members of TajSartaj CGHS were allotted flats by a CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 57 draw of lots approved by the DDA in February 1991.
iv) Fake winding up order dated 23.8.1979 (Ex.PW44/B) was produced in the Office of RCS for the revival of Sartaj CGHS. PW44 Sh. Ashok Bakshi has categorically stated that the said order was not issued by him.
v) There are testimonies of witnesses that they were falsely shown as members which has exposed the forgery.
vi) On 24.9.2003, an application bearing forged signature of one S. K. Gaur as Secretary was submitted for revival of Sartaj CGHS before RCS Narayan Diwakar.
vii) False and forged documents for the purpose of revival of Sartaj CGHS were created by A1 to A3.
viii) AddressFlat No. 8, Pocket13, Sector21, Rohini Delhi was falsely shown as society's address.
ix) The file was processed in the Office of RCS and on 04.12.2003 revival order (Ex. PW 46/A) was passed by A4.
110. In these circumstances and for the aforesaid reasons, I am of the considered opinion that prosecution has proved its case against A1, A2 and A3 beyond reasonable doubt.
CRIMINAL MISCONDUCT BY A PUBLIC SERVANT [SEC. 13(1)(d) R/W S. 13 (2) OF PC ACT] AND CRIMINAL CONSPIRACY (SECTION 120B IPC)
111. Sh. Abhishek Prasad, learned Counsel for accusedpublic CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 58 servants has contended that public servants had no dishonest intention. It is a case of mere breach of procedure. According to him, these accused cannot be convicted under Section 13(1)(d) read with 13(2) of PC Act. In support of his contentions, he has relied upon judgments - Union of India Vs. Majour J. S. Khanna, 1972 Cri. LJ 849; K. R. Purushothaman Vs. State of Karela, (2005) 12 SCC 631; A. Subair Vs. State of Kerala, 2009 Cri. LJ 3450; Major S. K. Kale Vs. State of Maharashtra, AIR 1977 SC 822; S. P. Bhatnagar Vs. State of Maharashtra, AIR 1979 SC 826; Abdulla Mohammed Pagarkar Vs. State, AIR 1980 SC 499; Subhash Parbat Sonvana Vs. State of Gujrat, 2002 Cri. LJ. 2787, R. Balakrishna Pillai Vs. State of Kerela, AIR 2004 SC 1012 and A. K. Ganju Vs. CBI, Cri. MC No. 2384 of 2011 decided on 22.11.2013 by Delhi High Court.
112. Sh. S. K. Bhatnagar, learned Counsel for A7, A8 and A9 has contended that there was no mens rea on the part of these accused and they are liable to be acquitted. In support of his contention, he has relied upon judgments - S.Swaminathan Vs. State of Delhi, 2008 Cri. LJ 1957 and Anil Kumar Bose Vs. State of Bihar, AIR 1974 SC 1560.
113. I have gone through the judgments cited before me. In Major J. S. Khanna (supra) it was observed by the Apex Court that regarding the allegation that the firm M/s Auto Stores was non existent firm, there was no conclusive evidence to show that the CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 59 accused knew that there did not exist any such firm. It was further held that though the accused might not have been careful or was grossly negligent, yet his action was not actuated with criminal intent. As regards the irregularities in the procedure committed by the accused, it was held that such a breach of procedure did not mean fraud or any other criminality.
114. In S. P. Bhatnagar (Supra), the accused officials of the Indian Oil Corporation were alleged to have shown favour to the accused Contractor with regard to a contract of rock cutting by manipulating the records and by issuing work order with inflated figures and by accepting false bills submitted by the contractor. In those circumstance, the Apex Court held that accused cannot be said to have acted with dishonest or corrupt motive or abused his position in having the contract in question entrusted to accused.
115. In Abdul Mohammed Pagarkar (supra), the Apex Court found that the work was got executed in flagrant disregard to the relevant rules. However, it was held that such disregard did not amount to any of the offences alleged against the accused.
116. In Major S. K. Kale (supra) also, the Apex Court found that in the facts of the case, the accused cannot be said to have used any corrupt or illegal means.
117. In A. K. Ganju (supra), our Delhi High Court speaking through Hon'ble Mr. Justice Suresh Kait quashed the chargesheet on CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 60 the ground that the CBI had failed to establish as to which unauthorized construction had been done by which accused and who were the officials with whom the conspiracy was hatched.
118. In Anil Kumar Bose (supra), it was held by the Apex Court that the evidence adduced must establish beyond reasonable doubt mens rea on the part of the accused. It was further held that it will not be correct to impute guilty intention merely from the failure on the part of the accused to perform his duties or to observe the rules of procedure laid down in the duty chart in a proper manner which could be said to be an administrative lapse only.
119. In S. Swaminathan (Supra), it has been held by our Delhi High Court that merely certifying a statement of fact based on the record produced by the company, the chartered accountant cannot be held liable for conspiracy.
120. I have gone through the judgments. There is no dispute regarding the legal preposition laid down in the abovereferred judgments.
121. In order to ascertain whether the public servants actually connived with private persons, notings in the files are very important and vital. The Court can always draw logical and natural inferences from such notings. Ld. PP has relied upon judgment Runu Ghosh Vs. CBI, Crl. A. No 482 of 2002, decided on 21.12.2011, wherein it has been held by our High Court of Delhi that offences of corruption are CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 61 done under the cloak of official duties and in a shrouded manner and, therefore, the only evidence available is notesheets written or approved by public servants. It has further been held that Court would be fully justified to draw appropriate inferences from such notesheets.
122. Notings in the file have not been disputed by these accusedpublic servants. It is appropriate to refer to these notings, in brief, for drawing an inference if public servants were indulging in corruption. Before proceeding further, it is pertinent to mention here that in the present case the representatives of Sartaj CGHS had directly approached the RCS by moving an application dated 24.9.2003 with a request for revival of the society.
123. The first such noting is of 30.9.2003 at page no. 1/N (Ex.PW85/B collectively)-Diary No. 3748/AR (NW) (Page6/C). This noting was prepared by AR (NW). As the society was brought under liquidation orders, the Competent Authority was requested to consider the revival of the society u/s 63 (3) of DCS Act. The main file of the society was not found available with the concerned branch. Thus, a circular was sought to be issued to all the branches/zones to trace the file and, if found, it was directed to be returned to NW Zone.
124. On 01.10.2003, the above said order was approved by A4 Narayan Diwakar. On 06.10.2003, a fair action/circular was added for signatures on the same by AR (NW).
125. On 15.10.2003, approval of an inquiry u/s 54 of the DCS CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 62 Act was sought to be conducted by AR (NW) and the same was approved by A4 Narayan Diwakar on 21.10.2003 and Inspection Officer was appointed vide order dated 23.10.2003.
126. Inspection Officer submitted his report after conducting the enquiry vide notesheet 4/N. On 31.10.2003, A6 Yogiraj sought submission of inspection report for consideration before the Competent Authority for necessary action.
127. On 4.11.2003, A4 approved issuance of notice under Section 63 (3) of DCS Act to the President/Secretary of the society for initial hearing on 13.11.2003 vide notesheet 5/N.
128. On 13.11.2003, Mrs. Rashmi Gulati, Advocate appeared before A4 and the matter was adjourned to 2.12.2003 for ascertaining the audit/election status of the society vide notesheet 6/N.
129. Notesheets (7/N to 15/N) reveal that AR (NW), after going through the record produced by the society, requested A4 for revival of the society as well as for approval of the freeze list of 139 members for allotment of the land.
130. On 02.12.2003 (16/N), Rashmi Gulati, Advocate represented the society before A4 who after hearing the arguments reserved the matter for orders.
131. Finally on 04.12.2003 (Ex. PW 46/A), A4 ordered for revival of the society as AR (NW) had already verified the list of 139 members submitted by the society. However, the said order was CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 63 subject to the condition that the election of Managing Committee of the society be conducted within two months.
132. It is not at all necessary to burden this judgment by quoting various provisions of DCS Act and Rules as under the law RCS has ample powers to order the cancellation of winding up order if the liquidation proceedings are not completed within the stipulated period. Under Section 13(1)(d) of the PC Act, this Court is required to assess if the public servants had abused their position as public servants thereby obtaining for themselves or for any other person any valuable thing or pecuniary advantage. In other words, this Court is required to assess if all the concerned officials of RCS had abused and misused their public offices in such an endeavor. In my opinion, the complicity of public servant is evident in the present case and for reaching the said conclusion, following facts are relevant :
(a) As per PW1 and other promoter members, Sartaj CGHS which was registered on 15.6.1972 and after its amalgamation with Taj CGHS had already been allotted flats in February 1991. As per PW44 Sh. Ashok Bakshi, the alleged winding up order dated 23.08.1979 (Ex. PW 44/B) does not bear his signatures. Thus, it stands proved that winding up orderEx. PW 44/B, a public document, is forged and fabricated document.
(b) The documents produced by the society were verified by AR (NW). However, it was not pointed out that the alleged winding up CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 64 order (Ex. PW 44/B) produced by the society was a forged one. It was a document issued by their Department and if the officials of RCS could not find out that it was a forged winding up order, who else can. It cannot be taken as a case of mere negligence.
(c) The members of Sartaj CGHS had already been allotted flats in February 1991 after the draw of lots by DDA. Ex. PW 44/B was not a private document and it could have been very easily verified by the Officials of the RCS. It is mentioned by A4 in his revival order dated 04.12.2003 that the original records produced by the society were verified by AR (NW). It shows that verification of the documents conducted in the office of RCS was a mere formality.
(d) The application dated 24.9.2003 for revival of the society was moved before A4 who made a noting thereon on 24.9.2003 itself. All the proceedings for revival of the society were conducted within 2 months and ten days without proper verification of documents and revival order was passed on 4.12.2003 by A4. The Sartaj CGHS had already been allotted land after amalgamation with Taj CGHS. The office of RCS should have been more vigilant in processing the request for the revival of the society which had already been allotted land. However, the society was revived without properly verifying the records. Thus, the complicity of the public servants in the revival of the society stands established.
(e) A4 passed the conditional order of the revival of the society CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 65 (Ex.PW46/A) with the direction to the society to conduct Election of Managing Committee within two months.
(f) It has been established by the CBI that S. K. Gaur, the alleged Secretary, was a nonexistent person. It was private persons i.e. A1 to A3 who had fabricated the false documents of the society for its revival. Nonexistent members were shown to be the members of the society.
(g) It has come in the evidence of the promoter members that only Muslims were made the members of Sartaj CGHS. However, most of the fake members including the members of the Managing Committee were Hindus in the fake documents produced by the society. Moreover, all the fake affidavits bear the same date of attestation. It could have raised suspicion in the mind of the Officials of the RCS. However, they kept their eyes shut to favour the private persons.
(h) A1 and A3 used to approach typists for typing job relating to affidavits/societies.
(i) PW53 Dr. Pamela Walia has denied the affidavits (Ex. PW 53/A collectively) having been attested by her husband, a notary.
(j) PW47 Kulwant Kaur has denied having sold the stamp papers in question to Sartaj CGHS.
(k) A perusal of the notesheets shows that no sincere efforts were made by the officials of RCS including A4 to trace the missing file or to fix the responsibility for the same.
CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 66
(l) PW63 has proved that neither Sartaj CGHS nor Sea Shine CGHS was having its office at Flat no. 8, Pocket13, Sector21, Rohini Delhi. Thus, it has been proved that the report given by A7 Ram Nath that he found the society existing and functioning at the said address was a false report and was given to favour the coaccused. It establishes his complicity in the crime. A7 also stated in the said report that the winding up order was passed on 23.08.1979 which is a false averment in view of the testimony of PW44 Sh. Ashok Bakshi.
(m) It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. For taking this view I am supported with the judgmentAjay Aggarwal Vs. Union of India, AIR 1993 SC 1637, relied upon by Ld. PP for CBI. The record shows that there was meeting of minds of accused for doing an illegal act or an act by illegal means and, thus, make all of them coconspirators.
VII CONCLUSION :
133. Upon consideration of all the facts & circumstances of the case enumerated hereinabove, this Court is of considered opinion that prosecution has succeeded to prove its case to the hilt against all the accused. As such, accused are convicted as under:
(i) All the accused are convicted for having committed offences punishable under Section S.120B and S.418 r/w S.511 IPC. CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 67
(ii) All the accused are convicted except A2 for having committed offence punishable under Section 471 IPC.
(iii) A1, A2, A3 and A7 are convicted for committing offences punishable under Section 467 and S.468 IPC.
(iv) A4 to A9 are convicted for committing offence punishable under Section u/s 13 (2) r/w S.13 (1) (d) of P.C. Act.
Announced in the open Court (PRAVEEN KUMAR) today i.e on 17.11.2015. Special Judge, CBIIII PC Act, Rohini Courts, Delhi.
CBI No. 104/11 CBI Vs. Sushil Kumar Sharma & Ors. (Sartaj CGHS) Page 68