Delhi District Court
Cbi vs Narayan Diwakar Etc. (Radhey Kunj Cghs) ... on 27 November, 2014
CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014
IN THE COURT OF SPEICIAL JUDGEII (PREVENTION OF CORRUPTION
ACT 1988) (CBI), ROHINI, DELHI
ID No. 02404R0650742007
CC No. 74/2008
RC No. 7E/2005/EOIVIII/N.Delhi
CBI Vs Narayan Diwakar etc. (Radhey Kunaj CGHS)
1. Narayan Diwakar
S/o Late Chhati Lal
R/o G30, Masjid Moth,
Greater KailashII,
New Delhi48.
2. Yogi Raj
S/o Sh. Girdhari Lal
R/o H. No. AP77,
Shalimar Bagh,
Delhi88.
3. Ram Nath
S/o Late Bishan Lal
R/o H. No. 192,
Gali No. 9, West Guru
Angad Nagar, Laxmi
Nagar,Delhi92.
4. Gokul Chand Aggarwal
S/o Late Jagdish Prasad
R/o A603, Ashoka
Apartments, Sector9,
Rohini, Delhi.
5. Prahlad Kumar Thirwani
S/o Late Moti Ram Thirwani
R/o 348 EPocketII,
Mayur Vihar, PhaseI,
Delhi91.
6. U.S. Bhatnagar
S/o Late Shiv Shankar Bhatnagar
CC No. 74/2008 Page 1 / 112
CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014
B479, TypeII,
Delhi Administration Flats,
Timarpur, Delhi85.
New address.
Flat No. 14, Maurya Enclave,
Khasra No. 844,
Gali No.2, Sant Nagar Burari,
Delhi84.
Date on which the final arguments were completed : 25.11.2014
Date of Judgement : 27.11.2014
JUDGMENT
Pursuant to the order dated 2.8.2005 passed by Hon'ble Delhi High Court, at New Delhi, in WP(C) No. 10066 of 2004, an FIR of case RCSID20005E007 (RC7(D) 05/EOU. VIII/SPE/ CBI/New Delhi) was registered on 19.12.05 under section 120B Indian Penal Code read with (r/w) section 420,467,468 and 471 IPC and section 13/(2) r/w 13(1)(d) of Prevention of corruption 1988 by Special Police Establishment , CBI EOU. VIII, New Delhi against Narayan Diwakar, the then Registrar of Cooperative Societies, Delhi, Ram Nath, the then GradeII in the office of RCS, Delhi Gokul Chand Aggarwal r/w A603, Ashoka Apartment, Sector 9 Rohini, Delhi and unknown others.
The Hon'ble High Court of Delhi in its order dated 10.05.1991 in CPW No. 2885/90 titled 'Kavery Cooperative Group Housing Society Ltd. vs. the Union of India & other had directed DDA to maintain a seniority list of the CGHS on the basis of date of registration with the RCS and allot land to the eligible CGHS strictly as per this seniority order of the Ho'ble CC No. 74/2008 Page 2 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 High Court was upheld by the Hon'ble Supreme Court of India.
It is revealed that in compliance to above decisions of the Delhi High Court and the Supreme Court, DDA maintains a seniority list of the Cooperative Group Housing Societies as per the date of registration with the RCS and allots land to the eligible CGHS strictly as per this seniority list as per the availability of land. Accordingly, a CGHS which was registered earlier in point of time gets precedence over the one which was registered later, for allotment of land by DDA, irrespective the date of receiving its proposal in the DDA.
Investigation revealed that, earlier Cooperative Housing Societies (CHS) were registered by the RCS and individual members of the same used to get allotment of plot of land. However, in late 1960s due to paucity of land, system of Cooperative Group Housing Societies (CGHS) was introduced for construction of Group Housing flats. It is further revealed that, vide registration number 4, The East Pakistan Displaced Persons Cooperative Housing Societies (EPDP CHS) was registered in the RCS office on 20.06.1968. This CHS was formed by the persons who had migrated from erstwhile East Pakistan namely, S/Shri S.P. Sen Verma, A.N. Das and others. Its members were allotted plots of land in the Chitranjan Park area of New Delhi. The membership was restricted to the persons who were displaced from the erstwhile East Pakistan. This CHS was able to achieve success and in the year 198384 EPDP CHS was in working condition. The office of EPDP CHS was located in JBlock, Chitranjan Park, under the jurisdiction of Assistant Registrar of Cooperative Society CC No. 74/2008 Page 3 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 (South Zone). In the year 2000 audit of this CHS was conducted by accused P.K. Thirwani the then Sr. Auditor in the RCS office.
Investigation revealed that the builder Mafia of Delhi in collusion with the officials of RCS took big advantage of above ruling of the Delhi High Court and the Supreme Court in virtually hijacking the entire cooperative movement in the housing sector. Most of the CGHS which were registered during 1970s and 1980s became dormant as DDA was not able allot to land due to paucity of the same or the land offered for allotment was not acceptable to the society. The members of such societies lost interest in the affairs of the society over a passage of time as the waiting period seemed endless and perhaps arranged alternative accommodations for living. As a result large number of such cooperative societies became nonfunctional, large number of such defunct CGHS were liquidated and wound up over a period of time by the RCS under provisions of sec. 63 (2) of the DCS Act 1972, on account of either one or more of the following reasons.
− non conduction of elections, audit in time − non submission of list of members for verification − society not functioning at all − non response to the communication to the RCS − failure of society to achieve its aim.
Since there is provision in the DCS Act 1972 u/s 63 (3) for revival of a wound up society by the RCS, the builder Mafia exploited it in conspiracy with the corrupt officials of RCS, in order to grab land at the CC No. 74/2008 Page 4 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 reserve price fixed by DDA for CGHS. They got such societies revived taking recourse to above legal provision with the active collusion of the officials of RCS on the basis of false/fake/ manipulated records and affidavits.
Investigation further revealed that due to wide gap between the demand and supply of the land for housing section in Delhi prices of land went up skyrocketing specially since 2000. Whenever the DDA has indicated availability of land for allotment to CGHS at the reserved price, the builder Mafia become hyperactive in buying the defunct societies and getting it revived with the active collusion of the officials of the RCS. In the year 2003, DDA developed plots of land at Dwarka, Rohini, Dhirpur, Narela and later in Kakardooma and intended to allot the same to about 80 CGHS. It requisitioned the status of 80 waiting societies with it regarding its functionality, as per the seniority list, from the RCS.
Investigation revealed that accused Gokul Chand Aggarwal was engaged in the affairs/ revival of many CGHS in Delhi. In addition to other CGHS he was President of Sunny CGHS Ltd. Registration No. 1206 which had office at 1003, Akash Deep Building, Barakhambha, Road, New Delhi. With a view to get land allotted from DDA at pre determined concessional rate/reserved price, Gokul Chand Aggarwal in the year 2004 entered in criminal conspiracy with accused RCS officials namely, Narayan Diwakar, the then RCS, Yogi Raj, the then AR, Ram Nath, the then Inspector GradeII, U.S. Bhatnagar, Dealing Assistant, P.K. Thirwani the then Sr. Auditor & others unknown to get name of EPDP Radhey Kunj CC No. 74/2008 Page 5 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 CGHS forwarded to the DDA. In pursuance to this conspiracy forged and fabricated application for revival of EPDP CGHS supported by Registration Certificate, Byelaws, liquidation order of 1979 purportedly issued in respect of EPDP CGHS Registration No. 04, affidavit of members and Office Bearers and other related papers were prepared/got prepared and submitted by Gokul Chand Aggarwal in the RCS office for revival of the EPDP CGHS, change of its name to Radhey Kunj CGHS and for forwarding list of members to the DDA for allotment of land to this CGHS. The forged and fabricated documents in the RCS office, purportedly bearing signature of office bearers namely, Ram Chander Rana (Treasure) have been found signed by accused Gokul Chand Aggarwal. The reason for change of name of the EPDP CGHS was mentioned that said belongs to a particular group of persons.
Investigation revealed that accused U.S. Bhatnagar, the then Dealing Assistant in furtherance of the criminal conspiracy already hatched, without verifying the registration of the CGHS in question submitted notes and on the basis of forged documents recommended for revival of the EPDP CGHS which was never registered in the RCS office and mentioned on the note sheet that all the relevant papers of the CGHS were submitted by Ram Chander Rana, purported to be Secretary of the CGHS for verification. He fraudulently recommended for reconstruction of the file on the basis of documents available with the society. He with malafide intent submitted wrong/false noting etc. to get the society revived. Further , he recommended for approval of freeze list CC No. 74/2008 Page 6 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 of 164 non existing members and approval of change of name of EPDP CGHS to Radhey Kunj CGHS.
Investigation revealed that in furtherance of the criminal conspiracy already hatched accused Yogi Raj Assistant Registrar, North West Zone, on the basis of forged documents recommended for appointment of Ram Nath as Inspection Officer. He further recommended revival of the EPDP CGHS which was never registered in the RCS office and mentioned on the note sheet that all the relevant papers of the CGHS were submitted by Ram Chander Rana, purported to be Secretary of the CGHS for verification. With malafide intent he forwarded false and fabricated noting and reports to get the society revived. Further without getting the requirement of election carried out accused Yogi Raj, AR sent a list of 35 societies including EPDP Radhey Kunj to the DDA for allotment of land vide letter dated 25.3.04. Investigation further revealed that even ready made copy of the copy of the Circular for search of relevant files and order appointing accused Ram Nath as Inspecting Officer issued by accused Yogi Raj were provided to him by the accused persons for signature. This is evident from the fact that copy of the Circular and above said order have been found in the memory of computer hard dis seized during investigation of CGHS cases.
Investigation revealed that in furtherance of criminal conspiracy already hatched accused Ram Nath, GradeII Inspector, in North West Zone on the basis of forged documents submitted false and fabricated inspection/ verification report dated 3.2.2004 & 11.3.2004 regarding CC No. 74/2008 Page 7 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 existence of EPDP CGHS, its office bearers & members and recommended for revival of the EPDP CGHS which was never registered in the RCS office. He falsely mentioned in the report that Ram Chander Rana, purported to be Secretary of the CGHS has produced all the records of the CGHS before him which was found to be complete and proper. He submitted another false and fabricated report mentioning therein that physical verification of the members at random was carried out by him in which copy of the share certificated and declaration regarding membership was obtained by him from the members. Investigation further revealed that even ready made copy of the false and fabricated reports submitted by accused Ram Nath were provided to him by the accused persons for signature. This is evident from the fact that copy of the Inspection Reports have been found in the memory of computer hard discs seized from the accused persons of CGHS scam, showing deep rooted connivance of accused RCS officials with the Gokul Chand Aggarwal and other accused of CGHS scam.
Investigation revealed that in furtherance of the criminal conspiracy already hatched accused Narayan Diwakar, the then RCS Delhi on 12.3.2004 passed orders for revival of the EPDP CGHS mainly on the grounds, extreme step leading the winding up of the society was passed without adequate grounds and the orders for winding up of the society was passed by the Dy. Registrar who was not competent to pass such orders and only RCS was competent to decide matter under section 63 of the DCS Act. The revival order was passed with the immediate effect with CC No. 74/2008 Page 8 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 the direction to get the audit and election proceeding of the society completed within two months time. For the purpose of election Deen Bandhu Prasad, the then, GradeIV in the RCS office was nominated as Election Officer. However, no election proceeding is available in the relevant record provide by RCS office.
Investigation revealed that the grounds of revival are incorrect. The EPDP CGHS was not even registered. Further, Sh. Ashok Bakshi the then, Dy Registrar was delegated all the powers of RCS to exercise by the competent authority.
Investigation revealed that in furtherance of the criminal conspiracy already hatched P.K. Thirwani, the then Senior Auditor in the Office of RCS, Delhi prepared and submitted false and fabricated Audit Report for the year 196869 to 20022003 in respect of EPDP CGHS which was never registered. In the audit report, it has been falsely mentioned that education fund to the tune of Rs.17,372 has been paid by the CGHS on 22.3.2004. Investigation also revealed that no such fund in respect of EPDP CGHS was deposited in the RCS office nor, any account was maintained in the name of this CGHS in the Delhi State Cooperative bank and mentioned in the report. Investigation revealed that audit of the EPDP CGHS in the year 2000 was also carried out by accused P.K. Thirwani, himself while posted in RCS office.
Investigation further revealed that without getting the process of election and audit completed accused Yogi Raj forwarded list of 164 non existing members to the DDA for allotment of land to the EPDP CGHS CC No. 74/2008 Page 9 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 which was never registered in the RCS office. The office and office bearers who purportedly moved RCS office for revival of the EPDP CGHS have also not been found existing. However, before allotment of land to the instant CGHS matter relating to revival of CGHS and allotment of land became subject matter of investigation and no land was allotted to this CGHS.
Thus, in furtherance of the conspiracy and by abuse of their official position as a public servant accused Narayan Diwakar, Yogi Ra, Ram Nath, P.K. Thirwani & U.S. Bhatnagar facilitated Gokul Chand Aggarwal and others and got the EPDP CGHS which was never registered, revived on the basis of bogus/ forged documents and also forwarded the list of 164 non existing member to the DDA for allotment of land to the society at the predetermined and concessional rate.
During investigation no person by name Ram Chander Rana and EPDP CGHS was found existing at the given address of the society i.e Village Khera Khurd, Delhi. GEQD has opined that signature of Ram Chander Rana purported office bearer of the society etc. have been forged by accused Gokul Chand Aggarwal. The original affidavits of the office bearers and members dated 03.3.04 available in RCS record bear stamp in the name of A.K. Gupta, Notary Public. Investigation revealed that said A.K. Gupta Notary Public had already expired on 15.1.2002.
After the orders of Hon'ble High Court of Delhi, New Delhi to the CBI for investigation of CGHS cases, accused Gokul Chand Aggarwal filed an affidavit in the Hon'ble High Court on 19.11.2005, giving therein CC No. 74/2008 Page 10 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 details relating to modus operandi of CGHS scam and also enclosed list of certain CGHS in the affairs of which illegalities/ irregularities were committed.
Charge After hearing the arguments, a common charge under Section 120B read with Section 420, read with Section 511/419/468/471 and Section 15 read with Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act 1988 was framed against all the accused persons.
Accused Narayan Diwakar, Yogi Raj, P. K. Thirwani, U. S. Bhatnagar & Ram Nath were separately charged under Section 13(2) read with Section 13(1)(d) read with Section 15 of Prevention of Corruption Act 1988.
Separate charge was framed against accused Gokul Chand Aggarwal under Section 420 read with Section 511/419/468 and 471 of Indian Penal Code.
All the accused persons pleaded not guilty and claimed trial. Prosecution Evidence Prosecution examined in all 95 prosecution witnesses. Their testimonies would be discussed by me at appropriate places in the judgment.
Statement under Section 313 CrPC Accused Narayan Diwakar in his statement under Section 313 CrPC took detailed stand, which is reflected in answers to question no.269 to
271. I would like to refer to the same, which is reproduced as under :
"Q269 It is in evidence against you all that in fact CC No. 74/2008 Page 11 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 there was no society in existence in the name of EPDP/Radhey Kunj. Rather, the registration no. 4 of genuine EPDP having address at Chittaranjan Park, New Delhi was misused and the said society was got approved by public servants in connivance with private person. What have you to say?
A I relied upon the inputs/recommendations/information given by the sub-ordinate staff. I have not conspired with anyone. I conducted the court proceedings in good faith. Passing of revival order is not an offence. Moreover, "EPDP Housing Society" and the "EPDP/Radhey Kunj CGHS" are two differ societies. One is a "House Building Society" and the other is "Cooperative Group Housing Society". This aspect has been clarified by many Pws including PW-95. There was no conspiracy/act on my part.
Q270 It is in evidence against you all that all the 164 members shown as a member of fake EPDP/RAdhey Kunj CGHS were either found to be non existing or if found they denied any membership in EPDP/Radhey Kunj CGHS. What have you to say?
A I relied upon the inputs/recommendations/information given by the sub-ordinate staff. I have not conspired with anyone. I conducted the court proceedings in good faith. Passing of revival order is not an offence. Moreover, "EPDP Housing Society" and the "EPDP/Radhey Kunj CGHS" are two differ societies. One is a "House Building Society" and the other is "Cooperative Group Housing Society". This aspect has been clarified by many PWs including PW-95. There was no conspiracy/act on my part.
Q271 It is in evidence against you all that at the address Chittaranjan Park, New Delhi the original and genuine EPDP Society having registration no. 4 was in existence and very well functioning and it was never liquidated. What have you to say?
A I relied upon the inputs/recommendations/information given by the sub-ordinate staff. I have not conspired with anyone. I conducted the court proceedings in good faith. Passing of revival order is not an offence. Moreover, "EPDP Housing Society" and the "EPDP/Radhey Kunj CGHS" are two differ CC No. 74/2008 Page 12 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 societies. One is a "House Building Society" and the other is "Cooperative Group Housing Society". This aspect has been clarified by many Pws including PW-95. There was no conspiracy/act on my part."
Accused Yogi Raj also put his stand in answer to question no.275, which is reproduced as under :
Q275 Have you anything else to say?
A This is a false case without any evidence against me. I have been implicated as I dealt with the file in official capacity. I was duty bound to follow the written order no. PA/RCS/2000/733-745 dated 2/7.8.2000 stating therein that quite a number of Cooperative Societies have been put under liquidation at different points of time under the provisions of Section 63 of Delhi Co-operative Societies Act, 1972. But no Liquidator has been appointed in most of these liquidated societies. Wherever Liquidators have been appointed either they have been transferred out of the department and no fresh Liquidator has been appointed in their place and also there are cases where Liquidators could not (I) either take over the records of the society, or
(ii) submit any liquidation proceedings as desired by the statute. There are very bad cases as for even 8 to 10 years no liquidation proceedings have been drawn up or terminated. Whereas Rule 105 of Delhi C0-operative Societies Rules, 1973 provides that all such liquidation proceedings snail be terminated within a period of three years and term of the Liquidator can be extended not for a period exceeding six months at a time and three years in the aggregate.
Keeping in view the above provisions of law, it is mandatory on our part to keep a track of all such liquidated societies and ensure their Liquidation after following the due process of law; and Liquidator upon appointment should comply with the legal procedure and submit liquidation proceedings within the prescribed time frame. On perusal of files from the zones where the proposals for revival of certain liquidated societies have been put up, it is noticed that the societies have been CC No. 74/2008 Page 13 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 liquidated on very very trivial matters like non attendance in the office of the societies representative or non production of records and thereafter liquidation proceedings have been taken up unilaterally. In some cases even communication to societies has not been sent. All such proceedings where the fate of the members at large is at stake; like those of de-registration u/s 19; liquidation and revival u/s 63 and supercession u/s 32 need to be taken up in a more reasoned manner and after following due process of law i.e. by giving an opportunity of showing cause to the concerned Managing Committee of the society and the speaking order has to be passed. Henceforth, all the proceedings u/s 19 & 63 of the Delhi C0-operative Societies Act, 1972 should be taken up in the court of RCS.
Secondly, it is in this background that it was perhaps felt necessary for setting up separate Liquidation Branch. The anomaly that has been created by issuing the order dated 25.7.2000 needs to be immediately rectified. It is, therefore, directed that all the Zonal A.R.'s must examine all the files and especially those societies which have been put under liquidation and submit a report by 31st August 2000 so that a fresh view could be taken about the need or otherwise of the Liquidation Branch.
In continuation order dated 2.8.2000/7.8.2000 further order was issued vide order no. PA/RCS/2000/753 dated 8.8.2000 vide which all zonal ARs were directed to refer the matter pertaining to proceedings under Section 19 and 63 of Delhi Cooperative Act 1972 to the court of RCS for initiating proceedings in the matter in quasi judicial manner.
The Registrar Cooperative Societies issued office memorandum no. PA/RCS/2000/804-825 dated 25.10.2000 stating therein that recently in about three to four cases the show cause notice under provision of Section 63 (2) of Delhi Cooperative Societies Act. 1972 were submitted to the RCS for approval. An analysis of the proposals shows that the policy of pick and choose has been adopted by the zonal offices. Besides, it also shows that there is total lack of appreciation of statutory provision as contained under Section 63 of Delhi Cooperative Societies Act 1972. It may be appreciated that liquidating a group housing society has far different consequences than that of a consumer store where no such CC No. 74/2008 Page 14 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 interests of individual members are at stake. The members of cooperative group housing societies may scattered all over the country and but for none of their faults the society may be put under liquidation on flimsy grounds. The group housing societies liquidated way back in 1989-90 leave a very poor experience as the counsels appearing in different cases during the proceedings undertaken for revival of the society under provision of 63(3) have taken the following pleas and have pointed out various discrepancies and legal infirmities while liquidation proceedings were under taken against those societies; by the then Deputy Registrar:
(I) That none of the provisions of Section 63 were attracted at the time of liquidating the society.
Section 63(1) provides for holding an enquiry u/s 55 or Inspection u/s 56 or for an application made by not less than 3/4th of the members of a cooperative society, for forming the opinion by the Registrar that the society are to be wound up. In none of these case, this statutory provision has been followed.
(II) In may cases the orders were not communicated to the society.
(III) After passing liquidation orders, no liquidator was appointed as per provisions of Section 66 for several years (to quote, in 12 cases together, a liquidator has been appointed after a gap of ten years.
(IV) If the liquidator was appointed, his term was not extended from time to time as provided under provisions of Rule 105, which prescribed that his term extend only upto one year from the date of order of winding up, unless period is extended by the RCS. It further provides that such liquidation proceedings must be completed within the period of three years by liquidator. In none of these cases, the above provision of Rule 105 have been adhered to. (V) That the members had only deposited share money and that money is also lying in the banks as the society is waiting for land allotment by the DDA and may have to wait for indefinite period and how should the society perform its statutory duties like conducting of audit as there is no expenditure in the meanwhile.
In fact in 1989-90 some group housing societies were liquidated on account of either one or more of the following grounds; non conducting of elections, non conduct of audit or submission of list of members for CC No. 74/2008 Page 15 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 verification or for no response from the society to the official communication and in the process about 50 to 60 group housing societies were put under liquidation without taking much needed follow up action thereafter as provided by the statute; under Section 66 and Rule 105. In fact on the on same analogy similar action would have been called in all the remaining several hundred societies awaiting land allotment either at the same time or during the subsequent decade, which luckly had not happened.
In the above circumstances, it is directed that all officers concerned dealing with liquidation matter of the cooperative societies must be very clear about the statutory provisions of Section 63 of Delhi Cooperative Societies Act 1972 and no pick and choose should be taken against group housing societies (as submitted to the undersigned in a few cases as aforesaid) and as far as possible the group housing societies which are awaiting land allotment may not be put under liquidation affecting the interest of the members adversely.
I am enclosing copies of order dated 2/7.8.2000, dated 8.8.2000 and OM dated 25.10.2000."
Statement under Section 313 CrPC of accused Ram Nath was recorded on 13.8.2014 as well as on 25.11.2014. I will reproduce its relevant portion when his role would be discussed by me later on.
Accused Gokul Chand Aggarwal denied all the allegations against him in his statement under Section 313 CrPC.
Accused U. S. Bhatnagar (A6) had also claimed innocence in his statement under Section 313 CrPC.
Defence Evidence Accused Yogi Raj (A2) examined Ashok Kumar Navet (A2/DW1), who is the Assistant Registrar in the office of RCS. He testified that he never came across any file related to EPDP Housing Society. A2 also examined T. Tarun Kumar (A2/DW2) working as Assistant Director, CC No. 74/2008 Page 16 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 Planning Branch in the office of RCS with additional charge of computer section. He also testified that no society with the name of EPDP having registration no. 4H is reflected on official web site. A2 further examined Narender Passi (A2/DW3), the Assistant Registrar in the office of RCS. He testified that the concerned dealing clerks have confirmed that no file concerning EPDP society was received by them. A2 further examined Sh. R. K. Mudgal (A2/DW4), who is a UDC in Policy Branch of RCS. He testified that the summoned record of the year 2000 is not traceable. A2 further examined Sh. Vijay Kumar (A2/DW5), who is the Head Clerk in Establishment Branch of RCS. He also stated that the summoned record was not traceable and as to whether the said file was destroyed or not. A 2 further examined Sh. Sonu Bhardwaj (A2/DW6), the Ahlmad in the court of Sh. R. P. Pandey, Ld. Special Judge, CBI, Rohini, Delhi. This witness produced the trial court record in CC No. 06/08 in CBI Vs. Anna Wankhede, wherein Sh. R. K. Srivastava, who was earlier a Registrar of RCS office, was examined as PW46 and had proved various orders of the year 2000. By bringing this record, A2 has tried to lead secondary evidence of the office record sought by him by calling A2/DW4 and A 2/DW5.
Yogi Raj (A2) also examined Sh. P. N. Manchanda, (A2/DW7) a DASS officer, who remained posted as Assistant Registrar in the office of RCS. On seeing the relevant circulars Ex.A2/DW6/DA, DB & DC, he testified that as per these circulars, from 8.8.2000 onwards, the files were directly sent by Assistant Registrar to the court of Registrar for quasi CC No. 74/2008 Page 17 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 judicial proceedings. This witness also testified that in case any file of the society was missing, a circular was sent to all the branches to trace the same and if no report was sent by the branches, the file used to be reconstructed by collecting documents from the society. This witness also testified that verification used to be done from the original records produced by the society. A2 also examined Ram Chander (A2/DW8), who is posted as Assistant in Group Housing Section of DDA. He brought a photo copy of a DO dated 27.9.2004.
Accused P. K. Thirwani (A5) examined Ms Sonal Rana (A5/DW1), who is Accountant cum Cashier in the Cooperative Education Fund in RCS office. She proved the reply of RTI.
The remaining accused persons did not examine any witness in defence.
Before discussing the submissions of the parties, I would like to discuss legal issues as under :
1. Kaveri CGHS Judgement of High Court of Delhi Dr. Padmini Singh, Ld. Public Prosecutor argues that in Kaveri Cooperative Group Housing Society Ltd. Vs Union of India (AIR 1991 Delhi 217), Delhi High Court had ordered the criteria of seniority of the society as per the date of their registration, so as to stop the bunglings in the office of RCS but the RCS officials were smart enough to defeat the purpose of that judgement and had invented a new trick by fraudulently reviving the defunct societies at the instance of builder mafia. This was done because the registration number of such society would be high in CC No. 74/2008 Page 18 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 seniority list on account of its date of registration.
For sake of understanding the logic of Hon'ble High Court of Delhi in Kaveri CGHS judgment, I would like to reproduce the relevant paragraphs from this judgment as under :
"Where in respect of allotment of land by the Delhi Development authority (DDA) to the Group Housing Societies, under the Delhi Development Authority (Disposal of Developed Nazul Land) Rules (1981) framed under S. 22 read with S. 56 of the Delhi Development Act (1957), an office memorandum was issued determining seniority on the basis of finalisation of list of members of such societies by the Registrar, Cooperative Societies, instead of earlier criteria of date of registration of such Societies, the said office memorandum was unreasonable and hence arbitrary. The main principle which has been set out in the said office memorandum is that the seniority is to be determined with effect from the date on which the papers of the Society have been found in order and approved by the office of the Registrar, Cooperative Societies. The effect of this is that irrespective of the date when the Societies were registered, the seniority will not be determined with effect from the date of registration nor with effect from the date when the list of members were submitted, but is to be determined with effect from the date when the Registrar accords its approval to the list so filed. This criteria is unreasonable, to say the least. The effect of this principle is that the societies have been left at the mercy of the Registrar of Co operative Societies. There may be cases, and CC No. 74/2008 Page 19 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 they probably are, where full particulars may not have been supplied by the societies. But as and when verification has taken place, it must necessarily relate back to the date when the list of members was filed. There are numerous instances which show that with no fault of the societies they have been relegated to a lower position in the seniority list, as there are societies where the lists were verified number of years after they had been submitted even though no defects were indicated in the list originally filed."
In this judgement it was specifically held that land was to be allotted to the society according to the seniority i.e. date of registration. The purpose of this judgement was to restrict the powers of RCS so that these powers are not abused. The facts of this case show that RCS officials and builder mafia joined hands and made most of the new criteria laid by Hon'ble High Court, by reviving the defunct/wound up societies by creating fake members and fake documents.
2. Law in respect of Section 13(1)(d)(III) of Prevention of Corruption Act 1988 : whether mens rea is an essential ingradient One of the main and most important submission on behalf of all these public servants is that they had done the work in routine manner and have relied upon the documents furnished by the society and they had no knowledge that the said documents were forged. It is, therefore, argued that they had acted in routine manner without having any knowledge of the forgery or without having any intention to abuse the official position. In view of these common submissions, the court is faced CC No. 74/2008 Page 20 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 with the question as to whether the mens rea in form of intent or knowledge is a necessary ingredient of Section 13(1)(d)(iii) of Prevention of Corruption Act.
It is argued by Ld. Public Prosecutor that till recently, no judgment had thrown any light on this aspect. Therefore, when this question arose before Hon'ble High Court of Delhi, Hon'ble Mr. Justice S. Muralidhar vide his order dated 24.09.2009 referred this issue to a larger Bench. Accordingly, this issue was considered by Hon'ble Mr. Justice S.Ravindra Bhat and Hon'ble Mr. Justice G.P. Mittal in CRL.A. 482/2002, CRL.A. 509/2002 and CRL.A.484/2002 i.e. Runu Ghosh, T.Rama Rao and Sukhram Vs CBI vide judgment dated 21.12.2011. I reproduce the relevant paragraphs of the judgment as under:
"73. Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the pre existing law, as well as the decisions of the Court the conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13(1)(d)(iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servants actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest."
.....................
"75. It would be profitable to emphasize the public servants are an entirely different class, and the level of trust reposed in them by the society is reflected in the high standards of behaviour and rectitute expected of them, both in the discharge of their duties, and otherwise. In the case of ministerswho are members of the council of Ministers (the Cabinet) in the Union and State Governments, as well as CC No. 74/2008 Page 21 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 holders of other constitutional offices there is a requirement that before their appointment, each of them has to subscribe to an oath of office and secrecy according to the form set out in the Schedule, to the Constitution of India by which holders of such offices are required to take oath that he or she would discharge her or his duties in accordance with the Constitution and the law without fear or favour, affection or ill will. This requirement is a constant reminder to the holder of that office that she or he is a trustee and custodian of public interest,and all decisions taken in that capacity are to be based on that factor alone. Holders of other public offices, under the State (a compendious term) are equally bound by such a condition. To ensure that they are afforded the amulet protection and immunity, the Constitution has mandated some safeguards (in the case of members of a service or holders of office under a State or the Union, the protection from arbitrary loss of employment, under Article 311, and the protection of status accorded by virtue of rules or enactments made, pursuant to Article 309 of the Constitution of India). There is an added layer of immunity in the form of requirement of sanction under section 197 or other similar provisions, to protect public servants from needless harassment. However, when the public servant acts in a manner that is devoid of public interest, not only would the action become suspect, then, having regard to the nature of his action, and the heightened degree of blameworthiness, he is said to have transgressed the bounds of protection afforded to his decisions, and is then exposed to prosecution."
"77. The court, as a consequence has to determine the objective criteria by which acts (of public servants) without public interest, are to be judged, if mens rea (to obtain pecuniary advantage or valuable thing to another) is not a necessary ingredient. This exercise is essential because in the absence of mens rea (which has been ruled out) the court has to say what "acts" resulting in someone obtaining pecuniary advantage or valuable thing are "without public interest". Obviously the mere fact that a third party obtains pecuniary advantage, or a valuable thing, is insufficient; a supplier of equipment to public servants or offices, a travel agent who makes bookings for a public agency, a businessman or corporate group granted licenses or clearances, by departments or agencies of the Government, would all stand to benefit. Many of these decisions are infact, and all are, expected to be in public interest. Therefore, the kind of behaviour which amounts to an "act" resulting in someone "obtaining pecuniary advantage" or "valuable thing" without public interest"
needs to be spelt out."
Ld. Defence Counsels submit that it would not be correct to say that prior to 'Runu Ghosh' case, there was no judgment on this point. It is submitted that in a prior judgment in J. Jayalalitha Vs State (MANU/TN/1423/2001) decided on 4.12.2001 similar question arose and following portions of the same is referred to :
CC No. 74/2008 Page 22 / 112CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 "...........The contention of the prosecution that mere exercise of power to confer pecuniary advantage to another person even without any dishonesty, can attract the penal provisions of the Prevention of Corruption Act, cannot be accepted, since if such a contention is accepted, any order passed by a public servant, which confers pecuniary advantage, can be prosecuted under the said Act. Section 13(1)(d) of the Prevention of Corruption Act, 1988 relates to the offence of criminal misconduct, whether it is under Clause
(i) or (ii) or (iii) and therefore, the offence recognized under all the three clauses is only an offence of criminal misconduct. In my view, all clauses in Section 13(1)(d) of the Act require mens rea and it is an essential ingredient for the offence. The judgment of the Supreme Court in M. Narayanan Nambiar v. State of Kerala (AIR 1963 SC 116), which was quoted with approval by the Apex Court in Major S. K. Kale v. State of Maharashtra (MANU/SC/0139/1976 : (1977) 2 SCC 394), shows that in order to come within the mischief of the Section, the abuse of position must necessarily be dishonest on the part of the accused. If the words "corrupt, illegal means or abuse" are not read into Section 13(1)(d)
(iii) of the said Act, innocent persons will be harassed in the course of performance of their official duties."
The judgments referred to above show that what is sought to be punished under Section 13(1)(d) of the Prevention of Corruption Act, 1988, is not mere misconduct but criminal misconduct and for criminal misconduct, the element of mens rea is essential and if there is no mens rea, the act does not by itself become CC No. 74/2008 Page 23 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 punishable, except in certain cases, like Section 304A IPC as it provides punishment for rash and negligent act committed without mens rea.
I have already extracted Section 13(1)(d)
(iii) of the Prevention of Crruption Act, 1988, and in that, the words, "without any public interest"
(emphasis supplied) are found. The words, "without any public interest" used in the said Section show that for the offence under Section 13(1)(d)(iii), the prosecution must establish that the interest shown for obtaining pecuniary advantage or valuable thing, was private interest and even if the act serves one public interest and if the said one public interest is against another public interest, a person cannot be prosecuted, since the Section states emphatically that the act shall be done without any public interest. The word 'any' is therefore to be understood that there should be a zero public interest. The word 'any' is defined in Judicial Dictionary of words and Phrases (Fifth Edition by John S. James) as a word which excludes limitation or qualification.
Therefore, the word 'any' used Section 13(1)(d)
(iii) is absolute. The trial Judge has also conceded in his judgment that tourism involves public interest, but went on to hold that it cannot override another public interest, i.e. Ecological system. Therefore, it is not a case where we can fit in the words "without any public interest", To make out an offence of criminal misconduct, two requirements are necessary and they are, (1) the absence of any public interest whatsoever, and (2) the knowledge of the accused that his act is without any public interest. The first requirement is the objective absence, as a fact, of any public interest and CC No. 74/2008 Page 24 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 the second requirement flows from the legal maxim regarding mens rea. If the accused acted bona fide without any public interest, believing that he is acting in the public interest, he is not guilty of the offence of criminal misconduct."
Regarding Jayalalitha judgment, I would say that when a judgment of our own High Court directly on the issue of Section 13(1)(d)(iii) of Prevention of Corruption Act is available, the same is binding upon this court. Moreover, a careful perusal of Jayalalitha judgement would show that this judgment is not contrary to the dicta of our own High Court in Runu Ghosh case, rather it supplements the same. The purport of the judgment of Madras High Court In J. Jayalalitha case is that the element of "mens rea" is applicable to Section 13(1)(d)(iii) of Prevention of Corruption Act only to the extent that the public servant should also have the knowledge that his act is without any public interest. This observation has been admitted by Hon'ble High Court of Delhi in Runu Ghosh case but in different words. In Runu Ghosh case in para 79 Hon'ble High Court has observed that "however it is only those facts done with complete and manifest disregard to the norms, and manifestly injurious to public interest which were avoidable, but for the public servant overlooking or disregarding precautions and not heeding the safeguards he or she was accepted and which resulted in pecuniary advantage to another..........". To put it in different words, the judgment means that the if the public servant knew that his act of over looking or CC No. 74/2008 Page 25 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 disregarding the precautions would be injurious to public interest, he would be covered under the mischief of Section 13(1)(d)(iii) of Prevention of Corruption Act 1988. Delhi High Court in Runu Ghosh also noted that the knowledge of the injury to public interest, however, has to be deduced from the note sheets because normally no other evidence would be available against such public servants. The conjoint reading of both the judgments would lead to the conclusion that when an issue affecting public interest comes before a public servant, it is natural that such public person would know that any disregard of the norms would harm the public interest. This knowledge of public interest has to be gathered from the facts of each case. For example in the present case allotment of land/plot to the society would be an act in public interest but if land is granted to a fake society, it would be injurious to the public interest. Needless to say that land is extremely expensive in NCT of Delhi.
3. Pecuniary Advantage There cannot be any scope of any disagreement on the point as raised by Ld. Defence Counsels that "obtaining pecuniary advantage for himself or any other persons" is the main ingredient of Section 13(1)(d) of Prevention of Corruption Act 1988. It is also true that prosecution has been unable to prove any evidence to show that if any public servant had obtained any pecuniary advantage for himself or for any other person. But it must be kept in mind that the charge against the public servants in this case is under Section 15 read with Section 13(1)(d) of Prevention of CC No. 74/2008 Page 26 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 Corruption Act i.e. an attempt to obtain the pecuniary advantage for himself or for some other person. Since it is an offence of "attempt" only therefore there is no question of these public servants having actually obtained any pecuniary advantage to themselves or to the persons operating the fake society.
4. Effect of approval of list of members by RCS The importance of this issue has been specified by Hon'ble High Court of Delhi in Kaveri judgment and I reproduce the relevant portion of the same as under: "It is open to the Registrar to fix a time limit within which the defects, if any, must be removed by the society so as to enable the Registrar to grant approval. If the defects are not removed within the stipulated time, then the society can have no grievance if the approval is not accorded. But once the approval is accorded the same must relate back to the date of the filing of the list. What is the effect of approval? The effect of approval is that the Registrar recognises the correctness of the list as filed by the society."
5. Notings on the file In the 'Runu Ghosh case', it has also been decided that since the offences of corruption are done under the cloak of official duties and in a very clever and shrouded manner, the only evidence available is note sheets written or approved by public servants and the court would be fully justified in drawing appropriate inferences from such note sheets. This court has to carefully peruse the note sheets to consider as to whether there has been any abuse of powers within the meaning of CC No. 74/2008 Page 27 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 Section 13(1)(d).
6. Requirement of sanction u/s 197 CrPC and u/s 19 of P.C. Act, 1988 It is argued by Ld. Defence Counsels that there is no sanction under Section 197 CrPC to prosecute accused persons though sanction under Section 19 of P. C. Act has been accorded. I may point out that since accused Narayan Diwakar had retired, there was no requirement for obtaining sanction under Section 19 of P. C. Act. Ld. Defence Counsels argue that for a prosecution under IPC, a sanction under Section 197 CrPC is required, irrespective of the fact as to whether the public servant is still serving or has retired. I have considered the submissions of the accused persons. All the accused persons have argued that since there is no sanction under Section 197 CrPC, therefore they cannot be convicted under any IPC offence including under Section 120B IPC. Almost everyone of them has referred to R. Balakrishna Pillai Vs State of Kerala and another AIR 1996 SUPREME COURT 901 in their support. Therefore I would like to reproduce relevant paragraphs of this judgement as under :
"6. The next question is whether the offence alleged against the appellant can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. It was contended by the learned counsel for the State that the charge of conspiracy would not attract Section 197 of the Code for the simple reason that it is no part of the duty of a Minister while discharging his official duties to enter into a Criminal conspiracy. In support of his contention he placed strong reliance on the decision of this Court in Harihar Prasad v State of Bihar, 1972 CriLJ 707:(1972)8 SCC 89. He drew CC No. 74/2008 Page 28 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 our attention to the observations in paragraph 74 of the judgment where the Court, while considering the question whether the acts complained of were directly concerned with the official duties of the concerned public servants, observed that it was no duty of a public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of the Code was no bar to the prosecution. The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the concerned public servant would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out office the bar of Section 197(1) of the Code would have no application. Such a view would render Section 197(1) of the Code specious. Therefore, the question would have to be examined in the facts of each case. The observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197 (1), as it then stood, but we do not base our decision on that distinction. Our attention was next invited to a threeJudge decision in S. B. Saha v. M. S. Kochar, (1979) 4 SCC 177 : (AIR 1979 SC 1841). The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty employed Section 197 (1) of the Code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed too narrowly, the section will be rendered altogether sterile, for, it is no part of an official duty to commit and offence, and never can be. At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The night approach, it was pointed out, was to see that the meaning of this expression lies between these two CC No. 74/2008 Page 29 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 extremes. While on the hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important and if it falls within the scope of the aforequoted words, the protection of Section 197 will have to be extended to the concerned public servant.
This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its application to the facts of the case on hand.
7. In the present case, the appellant is charged with having entered into a criminal conspiracy with the co accused while functioning as a Minister. The Criminal conspiracy alleged is that he sold electricity to an industry in the State of Karnataka 'without the consent of the Government of Kerala which is an illegal act' under the provision of the electricity (Supply) Act, 1948 and the Kerala Electricity Board Rules framed thereunder. The allegations is that he in pursuance of the said alleged conspiracy abused his official position and illegally sold certain units to the private industry in Bangalore (Karnataka) which profited the private industry to the tune of Rs.19,58,630.40 or more and it is, therefore, obvious that the criminal conspiracy alleged against the appellant is that while functioning as the Minister for Electricity he without the consent of the Government of Kerala supplied certain units of electricity to a private industry in Karnataka. Obviously, he did this in the discharge of his duties as a Minister. The allegations is that it was an illegal act in as much as the consent of the Government of Kerala was not obtained before this arrangement was entered into and the supply was effected. For that reason, it is said that he had committed an illegality and hence he was liable to be punished for criminal conspiracy under Section 120B I.P.C. It is, therefore, clear from the charge that the act alleged is directly and reasonably connected with his official duty as a Minister and would, therefore, attract the protection of Section 197(1) of the Act.
8. For the above reasons, we are unable to accept the view taken by the High Court of Kerala insofar CC No. 74/2008 Page 30 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 as the requirement of sanction under Section 197(1) of the Code is concerned, in relation to the charge of criminal conspiracy. We, therefore, allow this appeal, set aside the decision of the High Court insofar as that charge is concerned and hold that sanction under Section 197(1) of the Code was a sine qua non. As pointed out earlier so far as the second charge under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act is concerned, the view of the High Court remains undisturbed. The appeal is allowed accordingly and will stand so disposed of."
A perusal of this case would show that Supreme Court of India has relied upon the criteria, which had already been held repeatedly by Supreme Court. This criteria is that while deciding the question of applicability of Section 197(1) CrPC, neither this provision can be interpreted too widely nor too narrowly and a balance has to be maintained by the court because if this provision is construed too narrowly, the section will be rendered altogether sterile, for it is no part of an official duty to commit an offence and never can be. At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in course of the same transaction in which the official duty is performed. The Apex Court held that right approach is to see that the meaning of the expression lies between two extremes. Therefore the court will have to assess the facts and to take a decision as to whether the conspiracy charge is so intertwined with the discharge of the official duty that a sanction under Section 197 would be required, or, the official duty is discharged in such a fashion that the public servant becomes CC No. 74/2008 Page 31 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 active stimulator of the conspiracy in question. In later case, the sanction under Section 197 CrPC would not be required. Therefore the aforesaid authorities can not be applied mechanically for or against the public servant.
In 'Dharambir Khattar Vs. CBI decided on 5.5.2009 in Criminal Revision Petition No. 340 of 2008, by the High Court of Delhi, it was observed that:
"There is a merit in the contention of the learned counsel for the CBI that sanction under Section 197 CrPC is actually not required when the often committed are under the PCA. It is submitted that a criminal conspiracy to commit an offence under the PCA cannot be cloaked with any immunity to indulge in criminal misconduct. Want of sanction under Section 197 of Code of Criminal Procedure is, therefore, no bar. The matter can be looked at from another angle as well. The petitioners have been charged with the offence of criminal conspiracy under Section 120B IPC. Under Section 3 of PCA, the Special Judge is empowered to try not only "any offence punishable under this Code" but under Section 3(1)(d) "any conspiracy to commit or attempt to commit or any abetment of the offences specified in clause (I).
Under Section 40 IPC, it has been mentioned that in Chapter VA and in Sections 109, 110 IPC the word "offence" denotes a thing punishable under this Code, or under any special or local law as hereinafter defined." Under Section 41 IPC, a special law has been defined as "a law applicable to a particular subject."
Therefore, in terms of Section 40 and 41 IPC, the PCA would be a Special Law. The offence under Section 120B in Chapter VA IPC would therefore also become punishable under the PCA which is a special enactment for that purpose. Once the sanction under Section 19 PCA has been obtained, there is no need to obtain a separate sanction under Section 197 CrPC for prosecuting the petitioners for the offence under Section 120B IPC."
CC No. 74/2008 Page 32 / 112CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 Thus, the Delhi High Court in its above quoted order has categorically observed the offence under Section 120B IPC in chapter VA IPC would also become punishable under the Prevention of Corruption Act and hence once sanction under Section 19 of Prevention of Corruption Act has been obtained, no sanction under Section 197 CrPC would be required.
Similar is the law settled in 'Kaushal Kumar Vs. CBI, 2009 (1) LRC 56, Delhi.
The aforesaid legal proposition has been reiterated by Hon'ble Mr. Justice M. L. Mehta in C. K. Jaffer Sharief Vs. State (Through CBI) 2012 IV AD (DELHI) 214, wherein it was held that if there is a sanction under Section 19 of P. C. Act, the absence of sanction under Section 197 CrPC would not come to the rescue of an accused even if the public servant has been charged for IPC offences.
Hence, accused persons against whom sanction u/s 19 of P.C. Act have been obtained, cannot claim any benefit on the ground that there is no sanction under Section 197 CrPC.
But where there was no requirement of obtaining sanction u/s 19 of PC Act due to retirement of public servants, it is to be seen as to whether the prosecution is able to prove its charge against them, and if so, whether the facts are such which, on being proved, get protective umbrella of Section 197 CrPC. This aspect would be discussed in later part of the judgment, as to whether the RCS officials hobnobbing with CC No. 74/2008 Page 33 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 these offenders, went much beyond the scope of protection under Section 197 CrPC?
7. Powers of police to take handwriting sample during investigation Sh. S. P. Mehta, adv. for accused Gokul chand Aggarwal has referred to Sapan Haldar & Anr. Vs. State 191(2012) Delhi Law Times 225 of Hon'ble High Court of Delhi decided on 25.5.2012 and submit that the Investigating Officer had no power to take specimen signatures of accused. On the other hand, Ld. Public Prosecutor has referred to Ravinder Kumar @ Dara Singh Vs Republic of India AIR 2011 SC 1436 in which Supreme Court of India held that Investigating Officer had power to take specimen signatures during investigation.
I have considered the rival contentions. The Supreme Court of India, in State of Bombay V. Kathi Kalu Oghad & Ors. AIR 1961 Supreme Court 1808, considered this issue in detail and held that police does not require the permission of the Magistrate before taking the specimen hand writing of an accused during investigation. Relying upon the ratio of Kathi Kalu case, Supreme Court of India in a recent judgement Ravinder Kumar Pal @ Dara Singh Vs. Republic of India AIR 2011 SC 1436, where a question was raised about the admissibility of the specimen signatures of the accused taken during investigation by police without permission of the Magistrate, has held that taking of specimen signatures/writings of accused for examination by expert during investigation, without permission of the Magistrate, is proper and report CC No. 74/2008 Page 34 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 of expert based on such signatures/writings can be used as evidence against the accused. In this judgment, the Supreme Court had also noticed Section 311A CrPC, brought by a recent amendment of 2006. Relevant portion of para no. 35 of this judgment contain the rival submission put before it, which is reproduced as under :
"Another question which we have to consider is whether the Police (CBI) had the power under the CrPC to take specimen signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only in the amendment of the CrPC in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings being per se illegal the report of the expert cannot be used as evidence against him. To meet the above claim, learned Addl. Solicitor General heavily relied on a 11Judge Bench decision of this court in the State of Bombay V. Kathi Kalu Oghad and Ors. (1962) 3 SCR 10: AIR 1961 SC 1808. This larger Bench was constituted in order to reexamine some of the propositions of law laid down by this Court in the case of M. P. Sharma & Ors.
Vs. Satish Chandra, District Magistrate, Delhi and Ors., (1954) SCR 1077: (AIR 1954 SC 300)."
The Supreme Court of India then upheld the view of Orissa High Court which had held that police had power to take specimen signatures of accused during investigation. Thus, I find no illegality in taking of specimen signatures of the accused persons by the CBI during investigation.
CC No. 74/2008 Page 35 / 112CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014
8. Evidentiary value of opinion of hand writing expert It is argued by Sh. S. P. Mehta, adv. for accused Gokul Chand Aggarwal that the opinion of hand writing expert can not be the sole basis for convicting an accused. It is argued by Sh. S. P. Mehta, adv. that at the most it can be used as a corroborative piece of of evidence. It is argued that there is no eye witness account to show that the accused Gokul Chand Aggarwal used to interact with the RCS officials in respect of Radhey Kunj CGHS. Therefore the sole evidence against accused Gokul Chand Aggarwal is the opinion of hand writing expert. It is submitted that convicting an accused on the opinion of hand writing expert would be a highly dangerous proposition.
I would like to discuss the law on this issue.
Section 45 of the Indian Evidence Act lays down that when the court has to form an opinion as to the identity of hand writing or finger impressions, the opinions upon that point of the persons expert in that science are relevant facts. If the two hand writings match with each other, this itself is an evidence as per the Indian Evidence act. To say it differently, the matching of two hand writings is itself a substantial evidence u/s 45 of Indian Evidence Act and the opinion of the hand writing expert is sought only to facilitate the court to form an opinion on this point. Therefore, to say that conviction can be or cannot be based solely upon the report of hand writing expert would be misleading. The appropriate interpretation of Section 45 of Indian Evidence Act is that court is competent to form its own opinion on the point of identity of CC No. 74/2008 Page 36 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 hand writing and for that purpose the court may call for the report of a hand writing expert. Therefore, the relevant fact before this court is the matching or non matching of the hand writing of an accused with the questioned hand writing. If the hand writings match, there cannot be any hitch in convicting the accused even if further corroborative evidence is not available. I quote from the judgment dated 5.7.2011 passed by the division Bench of Hon'ble Mr. Justice S. Ravindra Bhatt and Hon'ble Mr. Justice G. P. Mittal in Jaipal Vs State Criminal appeal No. 137/98 and Rajendra Vs State Criminal Appeal No. 181/98 as under :
"it is true that except the handwriting Expert's report Ext.PW4/A there is no corroboration that the ransom letter Ext.PW12/A was in the handwriting of Appellant Jaipal. The question was dealt in detail by the Supreme Court in Murari Lal v. State of M. P., AIR 1980 SC 531. The Court observed that handwriting expert is not an accomplice and there is no justification for condemning his opinion evidence. It was held that if the Court is convinced from the report of an expert that the questioned handwriting was of the accused, there is no difficulty in relying upon the expert's opinion without any corroboration."
It is pertinent to note that High Court of Delhi had relied upon Murari Lal v. State of M.P., AIR 1980 SC 531 wherein Hon'ble Supreme Court held that there was no rule of law nor any rule of prudence that the evidence of handwriting expert must not be acted upon, unless substantially corroborated. I would like to quote from this judgment extensively as under:
"CC No. 74/2008 Page 37 / 112
CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 An expert is no accomplice. There is no justification for condemning his opinion evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion on a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnessthe quality of credibility or incredibility being one which an expert shares with all other witness, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of fingerprints has attained near perfection and the risk of an incorrect opinion is practically non existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence. (para 4) Expert testimony is made relevant by S.45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' in questions as to identity of handwriting is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) to S. 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the Court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S.3) tells that 'A fact is said to be provided when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.' Further, under S. 144 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.
(Para 6) CC No. 74/2008 Page 38 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 There is no rule of law, nor any rule of prudence which has crystalised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence through a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. (Cases law discussed).
(Para 11) Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative text book and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence.
(Para 12) In view of the above stated law, I am of the opinion that when a case is being pressed by the prosecution solely on the basis of handwriting expert, the court should be very cautious and the reasons for the expert opinion must be carefully examined. In case where reasons for opinion are convincing and there is no reliable evidence throwing a doubt upon it, the testimony of handwriting expert may be accepted.
9. Effect of non return of registered post Sh. S. K. Bhatnagar, adv. for accused Ram Nath (A3) argues that the registered letter if sent to the addressee will be presumed to have CC No. 74/2008 Page 39 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 been delivered to the addressee in view of Supreme Court ruling Vinod Khanna & Ors. Vs. Bakshi Sachdev AIR 1996 Delhi32. It is also submitted by him that the presumption under Section 114 Evidence Act says that judicial/official act will be presumed as having been performed regularly in view of Hon'ble Supreme Court decision in Madhu Khanna Vs. Administrator Union Territory of Delhi, AIR 1987 Supreme Court
48. Sh. S. K. Bhatnagar, adv. has drawn my attention towards para no.20 in Vinod Khanna Vs. Bakshi Sachdev "the basic law presumption of service of notice is permitted under the provision of Section 27 of the General Clauses Act and also under the provision of Section 114 of the Evidence Act. It is further held that once letter is delivered to the post office, sender has no control over it and that it can then be presumed to have been delivered to the addressee under Section 27 of General Clauses Act." Similarly, in Madhu Khanna Vs. Administrator UT, the Hon'ble Supreme Court held that "it will not be unreasonable to presume that all the records including the deposition of the said M. L. Khanna were before the confirming authority. It will be a mere surmise to hold that the confirming authority had not applied his mind to the deposition of the defence witness, even though such deposition has been referred to in the report of advisory committee. The contention in our opinion is without any substance and is rejected." Relying upon these authorities, Ld. Defence Counsel submits that the copy of the revival order was sent by Registrar to the office of the society through registered post. It is submitted that the RCS record shows that the same did not return back CC No. 74/2008 Page 40 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 undelivered. Hence, it should be presumed that the office of the society was very much working at the given address and the copy of revival order was duly served upon the society.
I have considered the submissions of Ld. Defence Counsel and I fully agree with him on the above quoted law. However, the aforesaid presumptions are subject to rebuttal. It will be seen later as to whether prosecution has brought some definite evidence to show that the office of the society was situated at the given address or not.
10. Whether the doctrine of double jeopardy is applicable in the present case Sh. Abhishek Preasad, Ld. Amicus Curie for accused Narayan Diwakar and Sh. S. K. Bhatnagar, adv. for the other public servants argued that all the accused persons facing trial in the present case had already been convicted and sentenced in various matters pertaining to CGHS scams. Ld. Public Prosecutor admits that accused Narayan Diwakar, Yogi Raj, Gokul Chand Aggarwal, P. K. Thirwani and U. S. Bhatnagar have already been convicted in the CGHS cases by this very court and accused Ram Nath has been convicted by the court of Sh. Manoj Jain, Ld. Special Judge, Saket Court, New Delhi.
Ld. Counsel for convicts argued that it is also not disputed that modus operandi of revival of the societies in the earlier cases, where these accused persons had been convicted, and the present one, was also the same. It is argued that when same players are engaged in the same conspiracy and have been convicted for same offences by the courts, they CC No. 74/2008 Page 41 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 should not be tried, convicted and punished again and again. If it is done, that would be violation of Section 300 of Criminal Procedure Code 1973. Ld. Defence Counsels have relied upon the judgement dated 14.11.2014 passed by Hon'ble High Court of Jharkhand at Ranchi in Cr. M. P. No. 1811 of 2014 in Lalu Prasad Yadav Vs. State of Jharkhad through CBI. My attention is also drawn to the judgment of the same day in Jagannath Mishra Vs. State of Jharkhand dated 21.7.2014 in WP (Cr.) No. 305 of 2014. It is argued that several charge sheets and fodders scams were filed against the erstwhile Chief Minister of Bihar alleging that officials and staff of Animal Husbandry Department in connivance with the other accused persons including high ups in the administration have been facilitating withdrawal money from different treasuries of erstwhile State of Bihar fraudulently putting the state exchequer to a great loss. It is submitted that 64 cases known as fodder scams cases were instituted at different places in State of Bihar. Most of which were transferred to the State of Jharkhand. It is argued that four cases in which, the erstwhile Chief Ministers were cited as accused were filed under the same provisions of law. After trial, these Chief Ministers namely Jagannath Mishra and Lalu Prasad Yadav were convicted in one case each. My attention is drawn by Ld. Defence Counsel to the fact that three other cases were having the similar type of allegations but the period during which illegal withdrawals were made was different, treasuries were different, amount of defalsification were different, the parties and the suppliers who were being prosecuted were different, even CC No. 74/2008 Page 42 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 the financial year of the transaction were different, different documents were forged and different books were falsified etc. It is argued by Ld. Counsels for accused persons that despite this fact Hon'ble High Court held that if the charges are same upon which the petitioners tried earlier, in that event period of charge being different, amount withdraw fraudulently being different, treasury being different, hardly matters. Thus, the proceedings against Lalu Yadav and Jagannath Mishra were hit by Section 300 CrPC and accordingly the other cases against them were quashed.
I have carefully perused the aforesaid authorities cited by Ld. Defence Counsels. With utmost humility, I am unable to accept the submissions of Ld. Defence Counsels. When the date, time and place of an offence and particulars of an offence are different, the offences would also be different, even if they come under the same provision of law. I cite an example. "A few robbers meet and conspire to commit robberies in different parts of city one after another. To my mind, each of the robbery as well as the conspiracy to such separate robbery would be separate offences and the principles laid down in Section 300 CrPC would not come into play if the same accused persons are convicted in conspiracy as well as for robbery at one place. The remaining offences would be tried and sentenced separately even through they initially conspired together and the penal provisions are same. Hence, the conviction of the present accused persons in the cases of CGHS scam is not a bar to the trial and prosecution of these accused persons in the CC No. 74/2008 Page 43 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 other case including the present one.
11. Section 93 of Delhi Cooperative Societies Act 1972 Sh. S. K. Bhatnagar, adv. argues that whatever act has been committed in the present matter, is protected under this provision of law. Hence, it is argued that all the public servants deserve acquittal. I reproduce this provision, which is as under :
"93. Bar of jurisdiction of courts (1) Save as provided in this Act, no civil or revenue court shall have any jurisdiction in respect of
(a) the registration of a cooperative society or its byelaws or of an amendment of a byelaw;
(b) the removal of a committee;
(c) any dispute required under section 60 to be referred to Registrar; and
(d) any matter concerning the winding up and the dissolution of a cooperative society.
(2) While a cooperative society is being wound up, no suit or other legal proceedings relating to the business of such society shall be proceeded with or instituted against, the liquidator as such or against the society or any member thereof, except by leave of the Registrar and subject to such terms as he may impose.
(3) Save as provided in this Act, no order, decision or award made under this Act shall be questioned in any court on any ground whatsoever."CC No. 74/2008 Page 44 / 112
CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 I have carefully perused this provision and I agree with the submissions of Sh. S.K. Bhatnagar, Adv. that the revival order or the other proceedings cannot be questioned in any court civil or criminal, on whatsoever ground. Thus, legality and correctness of any order by RCS cannot be allowed to be challenged before this court. However, this court is not hearing an appeal against the revival order. It may be a perfect legal order or may be not. This is not the concern of this court. The jurisdiction of this court starts when these proceedings and order are the product of a criminal conspiracy and other offences under Indian Penal Code and Prevention of Corruption Act. Hence, Section 93 (3) of DCS Act does not come to the rescue of the public servants. Now I take up factual issues
1. Whether the GEQD report in this case is worthy of reliance It is not in dispute that the specimen signatures of the accused persons and the questioned handwriting/signatures were sent by CBI to GEQD, who after examining the same gave a report, which is Ex.PW90/E. The prosecution examined the GEQD Sh. N. C. Sood as PW90.
I may point out that except accused Gokul Chand Aggarwal, none of the accused persons have challenged the opinion of GEQD. I may point out that PW57 A.K. Puri who was the Dy. Superintendent, Tihar Jail has testified that Insp. N.M. Sehrawat had taken the specimen writings of Gokul Chand Aggarwal (D29) on 07.02.2006 in his presence which are from S83 to S185 (Ext.PW57/B colly.). The investigating officer Rajiv Dwivedi (PW92) has testified that he had taken the specimen CC No. 74/2008 Page 45 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 handwriting of Gokul Chand Aggarwal which are from S244 to S254 which are Ext.PW56/B (colly.). PW56 Rajesh Kumarthe Dy. Director in DDA had testified that he had witnessed the giving of specimen handwriting voluntarily on 15.07.2006. Thus, the specimen handwritings of accused Gokul Chand Aggarwal are from S83 to S185 and from S244 to S254. The GEQD compared the questioned signatures from these specimen handwritings/signatures.
Sh. S. P. Mehta, adv. for accused Gokul Chand Aggarwal has challenged the correctness of the report and has read his cross examination, which is reproduced as under :
"PW90 Sh. N.C. Sood Aged: 65 years, s/o Late Sh.
H.C. Sood, r/o 6 Ayrcliaf, Near Hotel Victory, Shimla171003. (Retired Government Examiner of Questioned Documents, Shimla.) (Called for cross examination by accused Gokul Chand Aggarwal on his application u/s 311 CrPC.) On SA XXXX By Sh. S.P. Mehta, Adv. for accused Gokul Chand Aggarwal.
Q What are the standards for comparison of writing and signatures?
A Standard of comparison is "like is to be compared with like."
Q What are the drawbacks of the request standards/specimen writings/signatures?
A In request/specimen writings, a person may try to write disguise at his will, but, it depends from person to person.
Q What type of standards are considered best for comparison of questioned and admitted writings? A Best standards are those which contains similar letter combination for comparison. In specimen writings, we may get such type of material which is taken on request. In admitted/standard writings, we CC No. 74/2008 Page 46 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 get the material which a person does not know that it will be taken for comparison and it is his natural writing.
Q Did you try to find the "collected standards" for comparison with the questioned signatures?
A In this case, only specimen writings were supplied for comparison. I expressed opinion on the examination of these writings with questioned signatures.
Q What are the pre requisites of "standard writings"?
A Pre requisites of standard writings are that it should be freely written, taken on the similar type of documents on which questioned writing exists and it is preferred that they should be of contemporary period, but, it does not mean that the standard writing taken on plain sheet cannot be utilized for comparison.
Q What precautions should be observed for taking request writings?
A While taking request writings, a person who is giving the specimen writing should not be under any pressure so that he may give his natural free writing. Similar matter as occurring in questioned writings should be dictated to the person concerned. The second standard should be taken after giving some gap and the matter may be dictated to him. If a person tries to disguise his specimen should be taken after giving some gap.
Q Were these precautions exercised in the present case?
A I cannot answer this question because I did not procure the specimen writings.
I also cannot say whether in the present case, the specimen writings were taken through dictation or through copying.
Q I put it to you that if the specimen writings are taken through copying, then, "form and construction is likely to be copied, when such standards are collected under stress/threat/detention." Is it correct? (Objected to by Ld. PP) A If a person is pressurized to copy the writings and signatures, then, he may not be able to give his free CC No. 74/2008 Page 47 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 writings as he may try to disguise, but, if he copies the writings freely, then he will give his free natural writing and can be taken as standard for comparison. Regarding "form and construction" I say that in free writing he will give the same form and connecting strokes.
Q A 'natural writing' serves as a much better standard for comparison than the specimen obtained on the questioned writings. Is it correct?
A It is correct that natural writings are better because they are written with the intention that they will not be taken for comparison and they are free written, but, in such writings you may not get all letters in their combination which are required for comparison with the questioned writings. In such cases, specimen writings taken on request are very useful and can be taken for comparison.
Q You have written in your report that the standard writing and the questioned writings are freely written and various other characteristics like line quality and graded pen pressure, variable speed, adoptable slants and consistency inter se are common to the specimen as well as questioned writings, but, you have not stated any of such characteristics specifically and individually to prove your assertions. Is it correct? A In the report, it is mentioned that both questioned and standard writings shows similarities in writing habits, but, I have not demonstrated such similarities but mentioned that they are similar. Such similarities can be observed by examining the original records.
Q You have relied upon "fonts and designs" of signatures as well as of the specimen, but, as per priniciples of Handwriting Identification, handwriting is not identified from "general pictorial" appearances of letters etc. What have you to say?
A I have not formed my opinion only on general pictorial letters but when I found sufficient handwriting characteristics in the form of general and individual writings habits, I have given opinion upon it.
Q Is it correct that to compare any signature and handwriting, you required to take the photographs of CC No. 74/2008 Page 48 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 the said signatures and handwritings and whether the said procedure was learnt by you during your training period?
A I have formed my opinion after examining the original standard writings using various scientific instruments available in the laboratory and I have not taken the help of photograph to form my opinion.
Q There are vital and material dissimilarities in the writing characteristics in the two sets under comparison, which neither you have explained nor refuted?
A Where I have fixed the authorship of two sets of writings, I did not find any vital and material dissimilarities in writing characteristics and that's why it was not required.
Q My aforesaid question qua the dissimilarities was in respect of total sample i.e. S83 to S185 and S244 to S254 for their comparison with the Q22 to Q 243, Q262 to Q436 to Q988, so, please answer regarding those signatures for which you had not fixed the authorship of accused G.C. Aggarwal in the aforesaid questioned signatures?
A I have given definite opinion on the items where I found similarities in general and individual writing habits. I could not give definite opinion on certain items where the material supplied was not sufficient for comparison.
Q I suggest to you that in the present case the "standard writings" had not been taken as per the principles of handwriting identification?
A I cannot answer because I did not procure the standard writings in the present case.
Q Is it correct that as per the handwriting principles "the handwriting of every matured writer is personal and individual to him, two different persons cannot write in similar style, a writer cannot exceed his writing skill and ability, a person cannot adopt different styles of writing at different times as to change one's normal style of writing is an exceedingly difficult task, handwriting does not exclusively depends upon the physical movement of hand or the writing instrument used?
A I agree with the suggestion that handwriting of CC No. 74/2008 Page 49 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 every matured writer is personal and individual to him. The two different persons cannot write in similar style because every individual is different having his own muscular and mental coordination. A writer cannot exceed his writing skill and ability. It means that a person having lower skill cannot write the writing showing higher skill. Normally, a person does not change one's normal style, but, at times he may try to adopt certain characteristics just to hide his writing habits if he require. A writer has got his own movement of hand such as wrist, finger, whole arm or their combination. The writing instrument does not change the writing habits of a person.
Though certain characteristics may not be available. Q In the present case, your opinion is based on the similarity of some forms, designs of some alphabets of different words as per your "reference para 5 of opinion dt. 21.06.2006 Ext.PW90/B." What have you to say?
A It is correct that I have formed my opinion on finding the similarities in individual writing habits in forming various letters and their combination. Q I put it to you that forms of certain alphabets of different words may be due to the fact that the writer of specimen was asked to copy the questioned signatures placed before him when the writer was under tremendous stress, being in custody and was perhaps pressurized, so, some similarities in the forms/designs is possible due to an effort of simulation?
A It is incorrect.
It is wrong to suggest that the manner of production of various characters and their combinations is not characteristically similar in both sets of writing. It is incorrect to suggest that my reports and opinion Ext.PW90/B and Ext.PW90/F, Ext.PW90/E are wrong and specimen writings S83 to S185 and S244 to S254 were not written by the same person of related questioned writings i.e Q22 to Q243 and Q262 to Q436 and other items mentioned in para 5 in my opinion Ext.PW90/E. It is also incorrect to suggest that my opinion and report is only based on similarity of alphabets of respective CC No. 74/2008 Page 50 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 words of both sets of writing. It is incorrect to suggest that I am deposing falsely.
RO &AC (Special JudgeII: CBI)
03.09.2014"
I have carefully perused the aforesaid cross examination. I have reproduced the aforesaid cross examination to show that only general questions were asked and nowhere the credibility of the witness regarding his opinion could be impeach. Ld. Defence Counsel did not put any question to the witness and was unable to show as to how any specimen handwriting/signature was different from the questioned signatures/hand writings. Now I reproduce the reasons given by the hand writing expert in respect of questioned and specimen handwriting of accused Gokul Chand Aggarwal as under :
"REFERENCE PARA 5 OF THE OPINION/ REPORT My opinion that the writing in the enclosed portions stamped and marked Q22 to Q231, Q232(existing writings), Q233 (existing writings) Q234 to Q243 and Q262 to Q436 as well as S83 to S185 were all written by one and the same person (Shri. Gokul Chand Aggarwal) is based on the reasons that there are similarities in handwriting characteristics both General and Individual among the groups of writings.
The disputed writings as different persons signatures and extended body writings and the standard writings comprising a group of specimen writings obtained on 07.02.2006 were written freely with almost consistent line quality and graded pen pressure, variable speed, adoptable slants and show consistency interse hence forming a suitable base for comparison interse. The said disputed and the specimen writings show similarities in class characteristics such as shape, size, slope, slant, alignment, baseline, movement, penpressure, from and formation of characters etc., indicating that they fall in same class of writings/ writer.
Among the other similarities, I also found characteristic similarities such as manners of execution of the letter 'N' with curved vertical strokes, the manners of middle joining/ movement of right vertical stroke forming the common stalk of the consequent letter 'k' the nature of formation of buckle with its ticked commencement, formation of letter 'u' with base bulge/ curvature, the simplified formation of letter 'm' 'a' with the open loop and proportionate size/ alignment and 'r' in simple waves with angular peaks/ depths and the forward finish in tick in the signatures reading 'N.Kumar'; the manners of execution of letter 'R' with the vertical stalk, the over curvature loop of the body portion with its peak angularity, the finishing stroke and its extent continuing to form the subsequent letter 'a' with its elliptical shaping and CC No. 74/2008 Page 51 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 backward alignment, the similar wavy execution of letter 'm' with finish, the eyelet formation with deep twist in the execution of letter 'C' with continuation forming the letter 'h' with the hump away from stalk, the further wave/ peak standing for letter 'a' continuation forming the letter 'd' with the open lower body portion and the upward loop stalk, the similar wavy movement simplifying for the letter 'r' and 'a', the similar execution letter 'R", simplified 'a' and 'n' and the terminal defined 'a' with its tapering finish downward in forward direction in the signatures reading 'Ram Chandra Rana'; the manners of execution of letter 'S' with its lateral expansion and the proportion of lower portion and its retrace to form subsequent letter 'a' with Vertical loop in the middle and the open mouth continuing to form letter 't' with the nature of 'tcrossing' in anticlock backward moment in one operation with forward finish from 't crossing', the manners of ticked circular commencement of letter 'n' with its bigger size and extended forward tapering finish below the subsequent letter 'a', the formation of letter 'm' from letter 'a' with the simplified second arch, similar execution of letter 'S' with retraced base loop forming letter 'I' on same level with 'utype' peaks forming the letter 'n' with simplified letter 'g' the forward extension forming the terminal letter 'h' with the peak and the lower level hump away from the stalk with alignment and the tapering extended finish in the signatures reading 'Satnam Singh'; the manners of execution of letter 'B' with the extent of vertical stalk, the curvature of commencing body portion, the loop at the base with retrace to form letter 'h' the curvature in the hump of letter 'h' and the extended finish, the execution of letter 'a' with its body proportion and continuation in curvature forming the loop 'I' the formation letter 'a' from 'I' which the loop and finish, the manners of execution of letter 'D' with inward commencement and the loop extending upwards appearing as numeral '2', the execution of letters 't' and 't' with the alignment and combination and the pattern of placement of 't crossing' in the combined execution of terminal 'tt' in the signatures reading 'Bhola Dutt/ Bhula Dutt'; the manners of execution of letter 'A' with angular curved tip, retraced commencement and the triangular formation from the end of the right vertical stroke in backward movement and its retracing to form the subsequent letter 'I'/ 's', the loop of letter 'I' with its downward extension and loop forming the letter 'o' with the loops on both the ends, the manners of execution of letter 's' with the twists appearing as numeral '8', the manners of formation of letter 'h' with its unified stalk, the angular hump, the formation of letter 'k' with vertical loops at par with the stalk and the buckle as letter 'v' with sheriffs, the extended curvature of the buckle of the letter 'k', the termination of letter 'k' in extended manner with its characteristic forward finish, the manners of execution of letters 'u' and 'm' with the wave patterns and the formation letter 'r' with the flower commencement and finish, the manners of execution of letter 'L' with the extended lower finish, the formation of letter 'a' and crossing in letter 'x', the manners of formation of letter 'm' with the retraced first stroke and the curvature strokes, the execution of letter 'I' from the extension of letter 'm' with the nature and location of 'idot' and underscoring in the signatures reading 'Ashok/ Alok'/ Ashok Kumar/ Laxmi; as well as the relative location/ alignment, proportional sizes and baseline alignment of the letters, intra and interword spacing of letters and their combinations are all found similar with no fundamental difference and with variations within the limits 'assessed' variations of the person.
All the aforesaid characteristic similarities found among the sets of standard and the disputed with variations within the assessed limits of natural variations and without any fundamental difference lead me to above conclusive opinion."
The aforesaid reasons are detailed and convincing. I have also perused the questioned and specimen signatures and I am left in no doubt CC No. 74/2008 Page 52 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 about the correctness of opinion of the GEQD in the present case.
2. Whether the office of the society in question ever existed at Village & Post Khera Khurd, Delhi110082?
The application for revival (i.e. cancellation of winding of order) shows the office of society at Village & Post Office Khera Khurd. The importance of this question arises because as per the prosecution, the audit was conducted by P. K. Thirwani, the auditor, at this address and inspection was also carried out at this address by Ram Nath. Sh. S.K. Bhatnagar, Adv. has drawn my attention that when the revival order was passed, its copy was sent to the society at this address by registered post. If the registered post has not returned, it means that it has been delivered at the said address. This shows that not only the said address actually exists but also the office of the society used to be run there. I disagree with the submissions of Sh. S.K. Bhatnagar, Adv. If a registered letter is not returned, the court may presume that it was duly delivered. However, when a specific evidence is coming forthwith about the non existence of such address, such a presumption would be negated and a different presumption can be raised i.e. a letter was never posted at the given address. Prosecution has led positive evidence in this regard. PW 44 Azad Singh deposed that no person by the name of Ram Chander Rana s/o Dina Nath Rana had been residing in this village and no society in the name of EPDP CGHS or Radhey Kunj CGHS was existing in the said village. Prosecution has also examined Sh. Inder Mohan Saha (PW66), the secretary of actual EPDP CGHS, who testified that the office of society CC No. 74/2008 Page 53 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 never exited in Village Khera Khurd.
In view of the said positive evidence, it stands proved that no office of the society was being run in village Khera Khurd. This is supported by the evidence of the Investigating Officer who testified in cross examination dt. 25.08.2014 that no such society was found existing at Village & Post Khera Khurd, Delhi110082.
3. The EPDP Society The Cooperative Group Housing Societies are being registered in Delhi as per the provisions of Delhi Cooperative Societies Act 1972. Prior to 1972, the Cooperative Housing Societies used to be registered under Bombay Cooperative Societies Act 1925.
PW66 Sh. Inder Mohan Saha, PW67 Sh. Preeti Bhushan Shome and PW85 Sh. P.K. Roy have proved that EPDP Cooperative Housing Society was formed in the year 1968 with registration no. 4(H) dt. 20.06.1968. The Government of IndiaMinistry of Rehabilitation had alloted land to displaced persons of erstwhile East Pakistan. Earlier, it was called East Pakistan Displaced Persons Association. The land was alloted on no profit no loss basis and the address of the society was EPDP Cooperative Housing Ground, J Block, New Delhi09. PW66 Sh. Inder Mohan Saha who was the Secretary proved the copy of its byelaws as Ext.PW66/B and also proved the audit report for the period 19901999 bearing his signatures as Secretary Ext.PW35/B (D34). He testified that the name of the society was never changed from EPDP to Radhey Kunj CGHS at any point of time. He further testified that the office of the CC No. 74/2008 Page 54 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 society was never at Village & Post Khera Khurd, New Delhi. He also testified that no person by the name of Nirmal Kumar, Ram Chander Rana and Bhola Dutt had ever remained as President, Treasurer and Secretary of the society. He further testified that EPDP Cooperative Society was never wound up by RCS at any point of time.
The purpose of discussion of the above mentioned evidence is that EPDP was a cooperative housing society (i.e. CHS) and not a cooperative group housing society i.e. CGHS as shown in the revival application etc. Further, this society had achieved its purpose and there was no question of its liquidation. Further, no person as Ram Chander Rana was ever its President. Moreover, the office of the society never existed at Village & Post Office Khera Khurd, Delhi. Thus, it is clear that revival of this society has completely proceeded on forged documents, fraudulent address, non existent office bearers and non existent members.
4. Was EPDP Cooperative Society ever wound up/liquidated As discussed above, PW66 Inder Mohan Saha has testified that this society was never wound up or liquidated. The RCS officials had proceeded in this matter on the basis of a photocopy of winding up order dated 10.1.1979 Ex.PW31/A (placed at page no. 210/C of D3). This photo copy of winding up order was delivered to RCS officials by the persons, who were trying to revive the society, when the RCS officials proceeded to reconstruct the file on the pretext that the file with the office was not traceable. Ex.PW31/A shows that this order was issued under the signatures of Sh. Ashok Bakshi, the then Deputy Registrar CC No. 74/2008 Page 55 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 (PW31). Prosecution examined Sh. Ashok Bakshi as PW31, who testified that some one has forged his signatures on this order. Hence, it clear that this society was never wound up.
5. Who are the members of Radhey Kunj Society?
The investigating officer has testified that during investigation he had sent the notices by registered post or through constables to the members of Radhey Kunj society but all the envelopes/notices returned back either with the report that no such person resides at the said address or with the report that address does not exist. These notices were sent to the addresses of the members mentioned in the freeze list approved by RCS, which was sent to DDA. The lists are Ex.PW90/C1 & C2, placed in D3, which is collectively exhibited as Ex.PW61/PX. The prosecution examined the concerned postmen namely PW19 Om Prakash, PW81 Surender Kumar and PW82 Pan Singh to prove their endorsements on these envelops. Further, the investigating officer also sent the Constables who are PW71 Ct. Rakesh Kumar Verma, PW72 Ct. Pramod Kumar, PW 73 SI Tejinder Singh, PW74 Ct. Subhash Sharma, PW75 HC Vijay, PW76 Ct. Tapas Kumar Shill and PW77 Ct. Sudipta Paul with these notices (D15 Ext.PW92/G) and the unserved notices are Ext.PW71/A1 to A36 (colly.), D12 (Ext.PW81/B colly.) and D12 (Ext.PW81/A). All these notices could not be served because the members were non existent persons. None of the accused persons in their defence has been able to show if any of them is a genuine person.
Some of the persons actually existed but during investigation it was CC No. 74/2008 Page 56 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 found that their names and addresses had been used but actually they had never become the members of Radhey Kunj CGHS. The affidavits of the members were also filed before the RCS office. The signatures of the members have been found to be forged as per GEQD report. Prosecution examined some of them namely Asha Mittal (PW1), Dr. Alok Aggarwal (PW3), Smt. Santosh Sanoria (PW4), Sh. Om Prakash (PW5), Ms Veena Gupta (PW41) have testified that they had never become the members of Radhey Kunj CGHS, although the affidavits in their names and addresses have been filed. Then there is another set of witnesses whose address has been used in the freeze list. For example, PW6 Surender Singh has testified that he never rented his premises to D. Krishan, PW10 Mohd. Asim testified that he never rented out his house to Nirmal Kumar, PW11 Devender Singh testified that no person with the name Deepak Sinha worked at his shop, PW12 Gulshan Khurana testified that no person as K. K. Sahani ever lived in his godown, PW13 Rajender Swaroop testified that no person with the name of Smt. Neelam Sharma had ever resided at his address. Same is the case of PW14 Ms Asha Mathew, PW15 Baljeet Singh, PW16 Bhagwan Dass Grover, PW17 Ram Kanwar Gupta, PW18 Smt. Meena Gupta, PW20 Sh. Vinod Aggarwal, PW21 Smt. Omwati, PW22 Sh. Kishan Chand Garg, PW23 Smt. Sushila Devi, PW24 Smt. Vijaya, PW25 Smt. Vandana Sehgal, PW26 Sh. Vikas Gupta, PW27 Sh. G. P. Gupta, PW29 Sh. Vijay Midha, PW30 Sh. Madan Lal, PW32 Sh. Biman Kumar, PW40 Sh. Lalit Kumar Sachdeva, PW40 Sh. Mohit, PW43 Sh. Balbir Singh, PW45 Sh. Satish Kumar Gupta, PW46 Sh. Satish Pawar, PW48 Ms CC No. 74/2008 Page 57 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 Astha Ahuja, PW49 Sh. Vineet Goel, PW50 Sh. J. C. Takkar, PW51 Sh. Sunil Totwani, PW52 Sh. V. P. Arora, PW53 Sh. Manmohan Kapoor, PW54 Sh. Rajesh Behl, PW55 Sh. Ishwar Dutt Kaushik, PW78 sh. Kewal Krishan Sharma, PW79 Sh. Swarn Kumar Chadha, PW80 Ms Manju Kalra etc. The addresses of all these persons were used in the freeze list as the addresses of the fake persons. From the testimony of the aforesaid witnesses, it becomes clear that no person shown residing at their address in the freeze list as well as in the affidavits ever resided there.
Thus prosecution has led profuse evidence that all the members mentioned in the freeze list are either fake and non existent or their names and addresses have been used to show them as members without their knowledge, where such persons actually existed.
6. Public Servants and their sanctions In the present case all the accused persons except Gokul Chand Aggarwal (A4) are public servants. No sanction under Section 197 CrPC has been taken to prosecute any of the public servants. The law in this regard has already been discussed by me. The sanction under Section 19 of Prevention of Corruption Act is not required in respect of accused Narayan Diwakar as he had already retired before taking cognizance.
However, accused Yogi Raj, Ram Nath, P. K. Thirwani and U. S. Bhatnagar were still serving. Prosecution has examined PW38 Sh. Vijay Kumar, who was posted as Director Education w.e.f. 2005 to 2007, when U. S. Bhatnagar (A6) was posted under him as UDC. Therefore he was competent to accord sanction. PW38 proved that he had accorded CC No. 74/2008 Page 58 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 sanction to prosecute this accused vide sanctioning order Ex.PW38/A. Sanction under Section 19 to prosecute accused P. K. Thirwani (A5) and Ram Nath (A3) was accorded by Sh. R. Narayana Swami, the then Chief Secretary, Government of Delhi as Ex.PW38/A in respect of P. K. Thirwani and Ex.PW39/B in respect of accused Ram Nath.
Prosecution also examined PW88 Sh. D. K. Mishra, the then Additional Secretary, Vigilance, who testified that Lt. Governor, Delhi was competent authority to grant sanction to prosecute accused Yogi Raj under Section 19 of PC Act. He proved the sanction order dated 2.3.2007 as Ex.PW88/A issued by and in the name of Lt. Governor, Delhi by Sh. D. K. Mishra, Additional Secretary. I may make it clear that although proper exhibited number was marked on the sanction order but inadvertently it could not be mentioned in the testimony of PW88. However, that does not make any difference because he has referred to the sanction order running into four pages and had also identified his signatures on all those pages.
From the record, it is clear that cognizance was taken by this court only after the sanction under Section 19 of PC Act was accorded by the competent authority to prosecute these public servants. In view of the legal and factual issue as discussed above, I proceed to take up role of each accused
1. Gokul Chand Aggarwal In the present case, it is necessary to identity as to who Ram Chand Rana.
CC No. 74/2008 Page 59 / 112CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 As per the testimony of the Investigating Officer (PW92), he tried to trace out Ram Chander Rana but no such person was found existing at the address Village & Post Office Khera Khurd, Delhi nor any such society was found existing ever at the aforesaid address. The entire process of RCS started on an application written under the signatures of Ram Chander RanaSecretary EPDP CGHS Ltd. praying for cancelling the winding up order and for approval of list of 164 members as well as change of the name of the society from EPDP CGHS to Vishnu Dham CGHS. This application is placed at page 2/C & 1/C of D3 (collectively proved as Ex.PW61/PX). The signatures of the applicant are at Q230. My attention has also been drawn to the specimen signatures of Gokul Chand Aggarwal which are at S244 Ext.PW56/B(D29).
The signatures of Ram Chander Rana are also placed on the list of 182 members which is Ext.PW90/C1 and the signatures on it which are from Q28 to Q33 which bear the signatures of various office bearers including the signatures in the name of Ram Chander Rana, the Secretary. Similarly, the affidavits purportedly signed by the said Ram Chander Rana are available in D3 which Ext.PW94/A, Ext.PW94/C & Ext.PW94/D. These affidavits were filed in RCS for the purpose of showing that the office bearers take responsibility to run the society as per rules. On these affidavits, the signatures of Ram Chander Rana are placed at Q34 to Q
43. Thereafter, there is another list of 164 members placed at page 294/C to 289/C upon which the signatures of Ram Chander Rana are placed from Q44 to Q49.
CC No. 74/2008 Page 60 / 112CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 Similarly, a list of the members of managing committee is present at page 184/C on D36 Ext.PW90/D2 having signatures of Ram Chander Rana at Q50.
As per GEQD report Ex.PW90/E, these signatures of Ram Chander Rana have been written by accused Gokul Chand Aggarwal.
GEQD report proved by PW90 also shows that Gokul Chand Aggarwal has also put signatures not only as Ram Chander Rana but also as other office bearers on the documents for the purpose of audit. However, this aspect would be discussed by me in the role of P. K. Thirwani. All this prove that not only Gokul Chand Aggarwal was holding all the fake documents but also furnished the same under the signatures of Ram Chander Rana to the RCS office.
Prosecution has examined an important witness namely Sh. Satbir (PW2), who is a stamp vendor at DC office, Kapasheda, Delhi. He testified that in the year 2004, he was working as stamp vendor in District West, Rampura, Delhi. On seeing the file D5 containing 164 affidavits purportedly sworn by the members of Radhey Kunj Society, furnished to the office of RCS for the purpose of revival of society, PW2 testified that these stamp papers for Rs.10/ each were sold by him to Gokul Chand Aggarwal, who represented him to be a property dealer. These affidavits have been proved as Ex.PW2/1 to Ex.PW2/163. He also testified that he had written the names of the persons on the back side of these affidavits at the request of Gokul Chand Aggarwal. In cross examination by Sh. S. P. Mehta, adv., he stated that the register containing the record of the sale of CC No. 74/2008 Page 61 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 stamp papers was maintained by him and was deposited in the office of Collector of Stamps. He admitted that the signatures of Gokul Chand Aggarwal were not taken on the registers because some representatives of Gokul Chand Aggarwal used to collect the same. The credibility of this witness has been challenged by the accused but I find no reason as to why PW2 will testify falsely. From the testimony PW2, its stands proved that Gokul Chand Aggarwal was not only signing as the office bearers of the society but was also actively involved in procuration of the affidavits of the members of the Radhey Kunj CGHS, who either do not exist or if they existed, they denied having executed the said affidavits.
This further proves that it was Gokul chand Aggarwal, who was acting as the Secretary of Radhey Kunj CGHS under the name of Ram Chander Rana, a non existing person.
It is argued by Sh. S. P. Mehta, adv. for this accused that there is no evidence that Gokul Chand Aggarwal had ever visited the office of RCS and had delivered the forged documents like winding up order etc. to RCS and hence no offence under Section 471 IPC is disclosed. He has drawn my attention to the statement under Section 313 CrPC of accused Ram Nath, who has stated that it was Ashwani Sharma, who used to visit RCS office. I disagree with the submissions of Ld. Defence Counsel. The Section 471 IPC deals with using a forged document as genuine. This use can be done by accused himself or through some person. Suppose a person sends a forged document by post. The postman, who delivers the post, cannot be held guilty under Section 471 IPC. The guilt will lie upon CC No. 74/2008 Page 62 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 the person, who has sent it. It is clear that the revival application and documents have reached under the signatures of Gokul Chand Aggarwal. Hence, he is to be held responsible for committing offence under Section 471 IPC. These forged documents were submitted on 1.3.2004 as reflected in the noting placed at page 6/N (Ex.PW61/PX8) of D3, which are photo copies of the minutes of Managing Committee dated 4.11.2003 (placed at page no. 185/C), photo copy of SPGM dated 2.11.2003 (placed at page no. 187/C to 191/C), photo copy of registration certificate (placed at page no. 209/C), photo copy of liquidation order dated 10.1.1997 (placed at page no. 210/C) and photo copy of registered bye laws of the society (placed at page no. 211/C to 226/C). I may point out that these are photo copies of forged documents because since EPDP was already a working society and had never existed at Village & Post Office Khera Khurd, Delhi, hence, there is no question of holding meetings on 2.11.2003 and 4.11.2003. I have already discussed that the winding up order is also fake. It is true that no specific evidence has come as to who has submitted these documents but answer to this comes from the inspection report of Ram Nath, who had mentioned in the report that he had met Ram Chander Rana and all the society records were found under the custody of Ram Chander Rana, the Secretary of the society. Further, the affidavit of Ram Chander Rana Ex.PW94/A, B & C shows that Ram Chander Rana, the Secretary has taken responsibility for running all the functions of the society. In the affidavit Ex.PW94/D (placed at page no. 297/C of D3) Ram Chander Rana has specifically mentioned that all the CC No. 74/2008 Page 63 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 documents referred to in the affidavit are in safe custody of the undersigned. These documents are the affidavits of the members. Thus, from these circumstances, it is clear that the aforesaid forged documents must also have been filed by Gokul Chand Aggarwal under the name of Ram Chander Rana.
2. Ram Nath (Inspection Officer) Noting file of RCS (D3), which is collectively exhibited as Ex.PW61/PX, would show that U. S. Bhatnagar, dealing assistant vide noting dated 19.1.2004 proposed that Ram Nath, GradeII may be appointed as Inspecting Officer under Section 54 of DCS Act 1972 to examine and verify records of the society and to bring out the factual position. This noting was written in view of the PUC (letter dated 5.1.2004 placed at page no. 2C & AC of D3) purportedly received from EPDP CGHS with address Village and Post Office, Khera Khurd, Delhi 110082, wherein prayer cancelling the winding up order (in other words, for revival) of the society was made. Accused Yogi Raj, Assistant Registrar recommended his appointment vide his noting dated 19.1.2004 and which was finally approved by accused Narayan Diwakar vide his signature dated 20.1.2004 (see page 2/N, Ex.PW61/PX1). Accordingly, an office order was issued appointing Ram Nath as Inspecting Officer to conduct the inspection of the records of the society. Accused Ram Nath filed his inspection report in proforma and in form of a letter to Assistant Registrar, North West collectively exhibited as Ex.PW92/M1 placed at page no. 229/C, 228/C and 227/C at D3. The inspecting proforma at CC No. 74/2008 Page 64 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 page 229/K is written and is duly signed by accused Ram Nath dated 3.2.2004 and the inspection report placed at page 228/C and 227/C is also signed by accused Ram Nath. The signatures are not in dispute. Therefore, I would like to reproduce the report as under :
"The Asst. Registrar (NW) Dated: 3204 Cooperative Societies, Govt. of NCT of Delhi Parliament Street, NewDelhi110001
SUB:Inspection report under Section 54 of DCS Act 1972 of the E.P.D.P Co operative Group Housing Society Ltd. (Regd.No04(H) Sir, Incompliance of this office order No.F47/04/GH/Coop./NW/97 dated 22012004 vide which under signed was appointed an Inspecting officer submissions are as under :
1. I visited at the office of the Society at Village & Post Khera Khurd, Delhi1100082 on 27012004 and there I met Sh. Ram Chander Rana, Secretary of the Society.
2. Sh. Ram Chander Rana, Secretary of the Society produced all relevant records of the Society and informed that there are 164 Members are existing in the Society and list of Members has not yet approved by the RCS office.
3. As per records of the Society, The Society has shifted its address from E9, Kalkaji, New Delhi110019 to Village & Post Khera Khurd, Delhi110082 and it has been approved by the GBM vide dated 02.11.2003 (copy enclosed).
4. The Membership Register is complete in all respect.
5. The Accounts of the Society pending unaudited since Registration. The Society has prepared upto date account i.e. 31.03.2003 which was verified by the undersigned and the same are ready for audit (copy enclosed).
6. Election of the Managing Committee of the Society was conducted in GBM held on 04.11.2003 as per Act & Rules of the DCS. It was also unanimously approved by the GBM dated 02.11.2003 to change the name of the society as Radhey Kunj Cooperative Group Housing Society Ltd. and request was made therein for RCS to approve the amendment in the name of the CC No. 74/2008 Page 65 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 society (copy enclosed).
Contd...2/ <<2>>
7. Election of the Managing Committee of the Society was held on 02.11.2003 as per Act & Rules of the DCS.
8. All the Society records are found under the safe custody of Sh. Ram Chander Rana, secretary of the Society.
9. From the records of the society it is revealed that the Society was put under liquidation vide order No. F 47/04/79/H/Coop./453458, dated 10.01.1979 on the following Grounds :
a) The society failed to achieve its objects.
b) The society failed to fulfill the statutory obligations as provided under DCS Act Rules 1973 & Registered Byelaws framed there under.
c) The Managing Committee of the society and other member are not taking interest in the affairs of the society.
d) There is no possibility that the society will achieve its object in near future.
10. The present Managing Committee has maintain the records as per statutory requirements and is instrumental in its efforts for revival of the society for providing dwelling units to its members for having shelter of their own.
Report is submitted for further action (Ram Nath GrII) Inspecting Officer"
In the inspection report, accused Ram Nath has specifically written that he has visited the office of the society at Village and Post Khera Khurd on 27.1.2004 and there he met Ram Chand Rana, the Secretary of the society. He stated that Ram Chander Rana produced all the records, which were perused by him. The complete report is false because as already discussed, no office of the society was ever situated in Village and CC No. 74/2008 Page 66 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 Post Khera Khurd.
This Ram Chander Rana is in fact none other than Gokul Chand Aggarwal, as proved by report of handwriting expert. It is pertinent to note that accused had also conducted physical verification of the members at random. This report placed at 295/C of D3. It is written that he had physically verified at random during the spot verification and had taken the photo copies of the relevant documents from the members of the society.
I would like to mention here that these documents were put to accused in question no. 259 of his statement under Section 313 CrPC. The question and answer are being reproduced as under : "Q259 It is in evidence against you accused Ram Nath that you filed false inspection and verification report regarding members of fake EPDP/Radhey Kunj CGHS. The relevant document is in file Ext.PW61/PX, letter dt.
11.03.2004 at page 295/C, and Ext.PW92/M-1 at page 229 onwards. What have you to say?
A It is incorrect to say that I submitted false inspection and verification report regarding members of fake EPDP/Radhey Kunj CGHS.
As regard inspection report u/s 54 DCS Act and spot verification report (at page 295/C of D-3), it is submitted that such inspection report is not a pre condition for revival of society. As regards the spot verification of members there is no provision in the DCS Act to conduct such spot verification. Such inspections by me were done in routine course of my official duty. The spot verification is also done from the records CC No. 74/2008 Page 67 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 of the society and the report was submitted in routine as per specimen available in records of other societies."
Similarly the scientific report Ex.PW90/E and the search memo Ex.PW89/A vide which computer/hard discS was recovered by CBI from the house of accused Ashwani Sharma, was put to the accused Ram Nath in statement under Section 313 CrPC. However, this court wanted to know the specific stand of the accused as to whether he had visited the office of the society and had met Ram Chander Rana or not and how the contents of his report were found in hard disc of Ashwani Sharma. Accordingly this court further reframed the questions and put the same to accused on 25.11.2014. The questions and answers are reproduced as under :
"CC No. 74/2008CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Dated: 25.11.2014 (Although the relevant documents and questions have already been asked in the statement under Section 313 CrPC, I deem it appropriate that this evidence is more clearly put to accused Ram Nath to afford him further opportunity to explain and answer these questions. The questionnaire has been supplied to the accused and he has been advised to consult his counsel before answering these questions. Accused has taken time to consult his lawyer Sh. S. K. Bhatnagar, adv., who is present in the court, which is allowed.) Further statement of accused Ram Nath Aged: 63 years, s/o Late Sh. Bishan Lal, r/o 192, West Guru Angad Nagar, Laxmi Nagar, Delhi.
u/s 313 CrPC Without oath CC No. 74/2008 Page 68 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 Q1 I draw your attention to your inspection report placed at page 228/C of D-3 collectively exhibited as Ex.PW61/PX, addressed by you to Assistant Registrar North West, wherein you have stated that you have visited the office of the society at Village & Post Office Khera Khurd, Delhi-110082 on 27.1.2004, where you met Ram Chander Rana, Secretary of the Society. What you have to say?
A. Vide order dated 22.1.2004 at page 3/C of D-3 (Ex.PW61/PX-4), I was asked by the Assistant Registrar Sh. Yogi Raj to verify/examine the records of the society to bring out the factual position of the society. This letter does not specifically say for visiting the premises of the society. Copy of this letter was also sent to the president/secretary of the society at Village & Post Office Khera Khurd, Delhi. It is correct that I signed the typed exhibit Ex.PW61/PX, which was submitted in a routine way in a set/stereo typed language. I do not recollect having visited the office of the society. Normally reports of inspection under Section 54 of DCS Act used to be made in the office of the RCS and sometimes such reports duly typed were given by the representative of the society for signatures of the inspecting officer and such reports used to be signed by inspecting officer in routine way. In fact, the inspection report under Section 54 of DCS Act, 1972 is not a prerequisite for revival of any defunct society.
Q2 In this report, you have also stated that said Ram Chander Rana had produced all the relevant records of the society and you checked membership register, accounts of the society, election of managing committee etc. as well as you referred to a liquidation order dated 10.1.1979. What you have to say?
A. The said report was prepared by the concerned representative of the society, who got the inspection done from me. I do not recollect at this time of having seen the documents of the society. It is not the duty of Inspecting Officer to check the authenticity of the records produced before the inspecting officer of the RCS office. Q3 I also drawn your attention to your "physical verification of members at random in R/O EPDP CGHS Ltd. registration no. 04/(H), wherein you had stated that you had taken the photo copies of the relevant documents from the members of the society. (The attention of the accused is drawn to his spot cum physical verification report placed at page no. 295/C and CC No. 74/2008 Page 69 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 the certificates of the members under their signatures and the photocopies of the share certificates along with the said report upto page no.229/C of D-3 collectively exhibited as Ex.PW61/PX. What you have to say?
A. As regards, the physical verification of members at random, it is submitted that there is no guide lines provided for such verification nor there is any provision in the DCS Act & Ruesl for this. However, the documents obtained from the members by the society were produced before me, which were checked from the original records produced by the society representative. At this time, I do not recall the name of such representative of the society. Q4 I also draw your attention to the report Ex.PW90/F of Cyber Forensic Division of Directorate of Forensic Science proved by PW90 Sh. N. C. Sood, which shows that the print out (which is placed at page no. 149 of D-40 collectively exhibited as Ex.PW90/F) taken out by the expert from the hard disc recovered vide search list Ex.PW89/A by CBI on 1.8.2005 (in D-46) from House No. 227-C, Pocket-A, Mayur Vihar, Phase-II, Delhi-91, contains the same contents as are available in your inspection report as discussed above. Will you like to explain it?
A. I have been shown the search list Ex.PW89/A regarding search of 227-C, Pocket- A, Mayur Vihar, Phase-II, Delhi-91 belonging to Ashwani Sharma. I now recollect that Ashwani Sharma used to represent many societies and used to visit RCS office and he might have given the said typed report Ex.PW61/PX.
Q5 Do you want to say anything else or want to lead any further defence evidence?
A. In submitting such reports to the RCS office, which were submitted during the discharge of my official duties under the DCS Act 1972, I have not violated any provision of DCS Act or Rules or any other directive or order of the RCS. Nor any benefit has been caused to me by submitting such reports nor any loss has been caused to anyone. Nor there is any complaint against me in this regard. I do not want to lead any evidence in defence."
It is necessary to mention here that a computer/hard discs were seized from the premises of one Ashwani Kumar by CBI vide search list Ex.PW89/A and the same were sent to Cyber Forensic Division of CC No. 74/2008 Page 70 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 Directorate of Forensic Science. The contents of the hard discs were searched and a report was prepared, which is proved as Ex.PW90/F by prosecution. The print outs of the said material were taken out, which are part of the aforesaid report Ex.PW90/F. One such print out is placed at page no.159 & 161, which bear the same contents as the inspection report conducted by Ram Nath. The implication of this evidence would be discussed by me in later part of the judgment. In his inspection report placed at page no. 228/C and 227/C of D3 under the signatures of Ram Nath at Q245 dated 3.2.2004, Ram Nath had written that he had met Ram Chander Rana, the Secretary of the society. I have already discussed that this Ram Chander Rana is none else than Gokul Chand Aggarwal. The fraudulent intentions of Ram Nath are reflected from the manner in which he conducted spot verification/physical verification. In his physical verification report placed at page no. 295/C of D3, he mentions that photo copies of the relevant documents taken from the members of the society are also enclosed. And what he takes is a certificate purportedly signed by a member, photo copy of a share certificate and photo copy of a membership receipt. He does not take the identity card of even single member. He does not visit the address even a single member. He does not even ask for their identity cards, at least of the office bearers, specially of Ram Chander Rana, whom he mentions in his report to have met. Although even his statement under Section 313 CrPC reproduced above, itself is reflective of as to how he did all this, which instead of absolving him, creates an adverse opinion. However, I am not CC No. 74/2008 Page 71 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 inclined to take this statement in account. Suffice it to say that enough evidence of his indulging in criminal misconduct is forthcoming. How he is the part of the entire conspiracy would be discussed by me later on.
3. P. K. Thirwani (Auditor) Ld. Public Prosecutor has drawn my attention to D34, D35 & D36 which were seized vide seizure memo Ext.PW35/A. D34 Ext.PW35/B is the audit report of actual EPDP Society for the period 199091 to 2008 2009. This audit of EPDP society was very much available in the RCS office and it was handed over to CBI by PW35 Ravi Dutt, the LDC in the RCS office on 27.9.2006. These records contain a check list (Ex.PW35/B) for submission of audit report along with all records of the society including the list and addresses of members as on 1991, the record of bank, office bearers, balance sheets, Banks certificate etc. These are the real audits of DPDP society. Ld. PP has drawn my attention to D37 & D
38. The complete file is collectively exhibited as Ex.PW92/O. It is submitted by Ld. Public Prosecutor that these are the fraudulent audits of Radhey Kunj CGHS conducted by P.K. Thirwani. This file was seized from RCS office vide seizure memo Ext.PW34/A on 6.10.2005. Ld. PP has drawn my attention to the enclosure drawn by red pencil (Q438) in which signatures of the office bearers are also present. In D38 (Q438), the signatures of Nirmal Kumar as President, Ram Chander Rana as Secretary and Bhola Dutt as Treasurer are present. Ld. PP submits that the specimen handwriting of accused P.K. Thirwani are from S262 to S
272. My attention is specifically drawn to S272 in which the specimen CC No. 74/2008 Page 72 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 handwriting/signatures of P.K. Thirwani were taken wherein he had written "Nirmal Kumar, Ram Chander Rana and Bholla Dutt." It is submitted that as per the expert's report Ext.PW90/E page 1 para 4, Q 438 has been written by accused P.K. Thirwani. Ld. PP submits that it shows that the signatures of these three persons have been written by none other than P.K. Thirwani and thus he has created a forged document.
Sh. S.K. Bhatnagar, Adv. argues that these are not the signatures of the office bearers, rather, P.K. Thirwani was in habit of writing the names of the office bearers in his own hand on the brief summary of the society. I am not inclined to accept this defence. The names of President, Secretary and Treasurer have been written under the column "Signature' in the BRIEF SUMMARY OF THE SOCIETY. Therefore, the signatures of the office bearers are supposed to be placed at this place. The fact that P.K. Thirwani has forged their signatures here is a clear proof of criminal misconduct and abuse of official position by P.K. Thirwani.
Ld. PP has drawn my attention to the audit documents which are placed at page 183 to 1 (D38) in which the signatures of office bearers are present and below it the signatures of P.K. Thirwani are present. The signatures of the office bearers are at Q448 to Q450, Q452 to Q454, Q456, Q458, Q460, Q462, Q464, Q466, Q468, Q470, Q472, Q 474 to Q476, Q478 to Q480, Q482, Q484, Q486 to Q488, Q490 to Q492, Q494, Q496, Q498 to Q500, Q502 to Q504, Q506, Q508, Q510 to Q512, Q514 to Q516, Q518, Q520, Q522 to Q524, Q526 CC No. 74/2008 Page 73 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 to Q528, Q530, Q532, Q534 to Q536, Q538 to Q540, Q542, Q 544, Q546 to Q548, Q550 to Q552, Q554, Q556, Q558 to Q560, Q562 to Q564, Q566, Q568, Q570 to Q572, Q574 to Q576, Q578, Q580, Q582 to Q584, Q586 to Q588, Q590, Q592, Q594 to Q596, Q598 to Q600, Q602, Q604, Q606 to Q608, Q610 to Q612, Q614, Q616, Q618 to Q620, Q622 to Q624, Q626, Q628, Q630 to Q632, Q634 to Q636, Q638, Q640, Q642 to Q644, Q646 to Q648, Q650, Q652, Q654 to Q656, Q658 to Q660, Q662, Q664, Q666 to Q668, Q670 to Q672, Q674, Q676, Q678 to Q680, Q682 to Q684, Q686, Q688, Q690 to Q692, Q694 to Q696, Q698, Q700, Q702 to Q 704, Q706 to Q708, Q710, Q712, Q714 to Q716, Q718 to Q720, Q722, Q724, Q726 to Q728, Q730 to Q732, Q734, Q736, Q738 to Q740, Q742 to Q744, Q746, Q748, Q750 to Q752, Q754 to Q756, Q758, Q760, Q762 to Q764, Q766 to Q768, Q770, Q772, Q774, Q776, Q778, Q780, Q782, Q784 to Q786, Q788 to Q790, Q792, Q794, Q796, Q798, Q800, Q802, Q804, Q806 to Q808, Q810 to Q812, Q814, Q816, Q818, Q820, Q822, Q824, Q826 to Q828, Q 830 to Q832, Q834, Q836, Q838, Q840, Q842, Q844, Q846 to Q 848, Q850 to Q852, Q854, Q856, Q858, Q860, Q862, Q864 to Q 866, Q868 to Q870, Q872, Q874, Q876, Q878, Q880, Q882 to Q 884, Q886 to Q888, Q890, Q892, Q894, Q896, Q898, Q900, Q 902, Q904 to Q906, Q908 to Q910, Q912, Q914, Q916, Q918, Q 920, Q922 to Q924, Q926 to Q928, Q930, Q932, Q934, Q936, Q937A, Q938, Q939, Q941 to Q943, Q945, Q947, Q949 and Q951.
CC No. 74/2008 Page 74 / 112CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 As per the GEQD report Ext.PW90/E (para 5), these signatures and the specimen signatures from S244 to S254 have been written by one and the same person. I may point out that the S244 to S254 are the specimen handwritings of Gokul Chand Aggarwal (which are D29). The same are collectively proved by Investigating Officer (PW92).
And the initials of P.K. Thirwani are appearing on each page from page 187 to 1, which are as under :
Q455, Q457, Q459, Q461, Q463, Q465, Q467, Q469, Q471, Q473, Q477, Q481, Q483, Q485, Q489, Q493, Q495, Q497, Q501, Q505, Q507, Q509, Q513, Q517, Q519, Q521, Q525, Q529, Q531, Q533, Q537, Q541, Q543, Q545, Q549, Q553, Q555, Q557, Q561, Q565, Q567, Q569, Q573, Q577, Q579, Q581, Q585, Q589, Q591, Q593, Q597, Q601, Q603, Q605, Q613, Q615, Q617, Q621, Q625, Q627, Q629, Q633, Q637, Q639, Q641, Q645, Q649, Q651, Q653, Q657, Q661, Q663, Q665, Q669, Q673, Q675, Q677, Q681, Q685, Q687, Q689, Q693, Q697, Q699, Q701, Q705, Q709, Q711, Q713, Q717, Q721, Q723, Q725, Q729, Q733, Q735, Q737, Q741, Q745, Q747, Q749, Q753, Q757, Q759, Q761, Q765, Q769, Q771, Q773, Q775, Q777, Q779, Q781, Q783, Q787, Q791, Q793, Q795, Q797, Q799, Q801, Q803, Q805, Q809, Q813, Q815, Q817, Q819, Q821, Q823, Q825, Q829, Q833, Q835, Q837, Q839, Q841, Q843, Q845, Q849, Q853, Q855, Q857, Q859, Q861, Q863, Q867, Q871, Q873, Q875, Q877, Q879, Q881, Q885, Q889, Q891, Q893, Q895, Q897, Q899, Q901, Q903, Q907, Q911, Q913, Q915, Q917, Q919, Q921, Q925, Q929, Q931, Q933, Q935, Q937, Q940, Q944, Q946, Q948, Q950, Q952.CC No. 74/2008 Page 75 / 112
CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 Though, GEQD report also supports the prosecution version that these signatures are that of P.K. Thirwani, but since, P.K. Thirwani admits the signatures, I am not inclined to discuss the GEQD report. The fact that on the same page Gokul Chand Aggarwal is signing as all the office bearers of the society and below them P.K. Thirwani has put his signatures, is a clear evidence of their complicity.
Ld. PP has drawn my attention to D35 (Colly. Ext.PW35/B) & D36 (collectively Ext.PW35/C) which show that P.K. Thirwani himself had conducted the audit of EPDP CGHS from 19992000 and his signatures are at Q953 to Q982 which are opined by GEQD to be the signatures of P.K. Thirwani. It is argued that this is a circumstance which show that P.K. Thirwani fully knew that EPDP Society was very much active and he had conducted its audit. Therefore, again conducting the audit (D38 Ext.PW92/O) of this society shows his malafide intentions.
Sh. S. K. Bhatnagar, Ld.Counsel for accused P. K. Thirwani argues that P. K. Thirwani never knew that documents produced before him were forged and that in the new audit documents of which are placed in the file Ext.PW92/O, there is not even an iota of inkling that this audit pertains to EPDP society. My attention is drawn to the fact that on each and every document the name Radhey Kunj CGHS is written and there is not even a single document pertaining to EPDP society or showing that the name of EPDP was changed to Radhey Kunj. I accept the submission of Sh. S.K. Bhatnagar, Adv. on this point. However, already enough evidence is coming on record to show the active role of P.K. Thirwani in CC No. 74/2008 Page 76 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 fraudulent audit in complicity with Gokul Chand Aggarwal.
4. U. S. Bhatnagar (Dealing Clerk) and Yogi Raj (Assistant Registrar) As discussed above accused Gokul Chand Aggarwal (A4) under the name of Ram Chander Rana, the Secretary of EPDP CGHS, moved an application (placed at page 2/C and 1/C of D3 collectively exhibited as Ex.PW61/PX) for cancelling the winding up order (i.e. for revival of society) and change of address from EPDP CGHS to Vishnu Dham CGHS.
I reproduce the said application dt. 05.01.2004 as under :
"To The Asstt. Registrar (NW) Office of the RCS, Old Court Building, Parliament Street, New Delhi.
Sub: Request to cancel the windup order u/s 63 of The E.P.D.P. Cooperative Group Housing Society Ltd. Regd. No.04 (H) NorthWest Zone Honrble Asstt. Registrar, The E.P.D.P. Cooperative Group Housing Society Ltd. was registered at Regd.No.04 (H) with the department on 12.07.1968 with the objects to acquire land and construction of flats for its members. But, the same was wind up by the order of the Deputy Registrar (GH), Cooperative Societies on vide order no.F 47/04/79/H/Coop./453458, dated 10.01.1979 on ground of:
1. The society failed to call Annual General Body meeting.
2. The society failed to hold the election of the Managing Committee.
In this connection it is submitted that the short coming on the basis of which the society was order to wind up has now been removed by the society.
Fresh election of the Managing Committee of the society have been conducted in the 2nd November 2003 strictly in accordance with the provision of scheduleII of Rule 58 as amended time to time. Election along with the copies of supporting documents including list of member that stands 45 days prior to the date of election, Managing Committee resolution copies of notice, copy of proof of service of notice, report of election officer, proceeding of general body meeting etc., shall be produced as and when called for and also the managing committee of the society has prepared all the books of accounts and a fresh list of members as on date has been drawn up in prescribed Performa on the submitted for verification along with the related documents as and when directed to do so.
In view of the above, it is submitted that all the shortcoming on the basis of which the society was ordered to wind up have been removed. It is requested that the order of the wind up u/s 63 of The E.P.D.P. Co operative Group Housing Society Ltd. may please be cancel and list of 164 members may be approved so that the purpose for which the society was registered may be fulfilled. You are also requested to approve the change of name from E.P.D.P. C.G.H.S. Ltd. to Vishnu Dham C.G.H.S. Ltd. as approved in the GBM dated CC No. 74/2008 Page 77 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 02112003. We further undertake to abide to function the society strictly in accordance with the provision of the Delhi Cooperative Societies Act & Rules framed there under directive issued by the Registrar and the registered Byelaws of the society in future.
Thanking you and hoping for early action.
Yours faithfully, For E.P.D.P. C.G.H.S. Ltd.
Ram Chander Rana SECRETARY"
Accused U. S. Bhatnagar (A6) & Yogi Raj (A2) wrote the first noting on it, which is reproduced as under :
"Diary No.4771 AR (NW) dated 712004 (P 1/C).
PUC is from the Secretary of the E.P.D.P. Cooperative Group Housing Society Ltd. address Village & Post Khera Khurd, Delhi110082, requesting therein for the revival of the Society. The Secretary of the Society has stated as under:
1. That the Society is registered with this department of S.No.04(H) dated 12.07.1968 with the object to acquire land and construction of flats to its members.
2. That the society was brought under liquidation vide order No. F.47/04/79/H/Coop./453458 on dated 10.01.1979.
3. That fresh election of the Managing Committee has been conducting on 02.11.2003 as per provision of ScheduleII of DCS Rules 58 as amended from time to time and the record pertaining to the election will be produced as and when called for.
4. That the Society has prepared the list of members in prescribed Performa on the basis of the record of the society and will be submitted for verification with relevant record/document as and when required.
5. That the society was registered with 18 promoter members and there after enrolled members from time to time, The present strength of members is 164.
6. That all the shortcoming on the basis of which the society was ordered to windup has now been removed.
7. That all the record of the society is complete in all respect and will be produced as and when required for verification.
8. That the Managing Committee of the Society also under take that in future the society will function in accordance with the provision of DCS Act & Rules and Byelaws of the Society and the President and Secretary of the Society under take by filing an affidavit that in future the society will fulfill all the statutory obligation as per provision DCS Act & Rules.
9. That the name of the E.P.D.P C.G.H.S. Ltd. may be changed to "Vishnu Dham C.G.H.S. Ltd." as it was unanimously approved by the GBM held on 02112003.
Finally the Secretary of the Society has requested for the withdrawal of the liquidation order U/S 63 and for the revival of the Society and approve the final list of 164 members.CC No. 74/2008 Page 78 / 112
CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 In this connection it is submitted that the society was brought under liquidation under section 63 of DCS Act 1972 vide order No. F.47/04/79/H/Coop./453458 on dated 10.01.1979 on the following rounds:
a). The society has failed to achieve its basic objective and not likely to achieve its objective in near future.
b). The society has failed to act in accordance with Delhi Cooperative Societies Rules 1973 and as per the provisions of registered byelaws of the society.
c). The Managing Committee Members and other members of the society are not showing any interest in the working of the society.
d). It does not appear that there is any hope to keep the society alive any more in order to achieve its aim in any manner or so.
Now, the managing committee of the society has requested for the revival of the society u/s 63 (3) of DCS Act, 1972. In this context it is pertinent mention here that the main file of the society is not available with this branch.
If agreed, in first instance a circular may be issued to all Branches Zones requesting to trace the same and if found it may be returned to this branch immediately within 7 days and Sh. Rm Nath GrII may be appointed as Inspecting Officer U/S 54 of DCS Act, 1972 to examine and verify the record of the society and to bring out the factual position.
Submitted please
Dealing clerk AR (NW)"
the aforesaid noting is written both by Dealing Assistant and AR as both of them had put their signatures. This noting shows that both of them had authenticated the fact that the society was liquidated on 10.1.1979. Sh. S.K. Bhatnagar, adv. submits on this point that this fact is written by Dealing Assistant from the revival application and not from his own knowledge. I disagree with him. The noting does not say that he was saying so on the basis of the letter dated 5.1.2004 written by Ram Chander Rana. Rather it is his own submission. The perusal of the letter dated 5.1.2004/application for revival mentions only two grounds of winding up, which are as under :
1. The society failed to call Annual General Body meeting.CC No. 74/2008 Page 79 / 112
CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014
2. The society failed to hold the election of Managing Committee.
However, the noting of A6 dated 19.1.2004 mentions 4 grounds, which are as under :
a). The society has failed to achieve its basic objective and not likely to achieve its objective in near future.
b). The society has failed to act in accordance with Delhi Cooperative Societies Rules 1973 and as per the provisions of registered byelaws of the society.
c). The Managing Committee Members and other members of the society are not showing any interest in the working of the society.
d). It does not appear that there is any hope to keep the society alive any more in order to achieve its aim in any manner or so.
A2 & A6 also stated in this noting that the main file of the society was not available with the branch and accordingly they recommended that a circular may be issued to all branches/zones to trace the same immediately within seven days and Ram Nath, GradeII may be appointed as Inspection Officer to verify all the records of the society. In the noting dated 9.2.2004, U. S. Bhatnagar (A6) the Dealing Assistant reproduced the report from Ram Nath (A3) and recommended reconstruction of the file as well as for revival of the society. I reproduce the said report as under :
"May kindly see PUC is from Sh. Ram Nath Gr.II was appointed inspection officer vide order dated 22.012004 (P 3/C) u/s 54 of DCS Act 1972 to examine and verify the records of the E.P.D.P. C.G.H.S. Ltd. and to bring out the factual position in this regard. The Inspection officer has submitted his report (P 210/C) as under :
1. That he visited at the office of the Society at Village & PostKhera Khurd, Delhi110082 on and there he met Sh. Ram Chander Rana, Secretary of the society.
2. That Sh. Ram Chander Rana, Secretary of the Society produced all relevant records of the Society and informed that there are 164 Members are existing in the Society and list of Members has not yet approved by the RCS office.
3. That as per records of the Society the Society has shifted its address from E9, Kalkaji, New Delhi110019 to Village & Post Khera Khurd, Delhi110082 and it has been approved by the GBM vide dated 02.11.2003.
4. That the Membership Register is complete in all respect.
5. That the Accounts of the Society pending unaudited since registration. The Society has CC No. 74/2008 Page 80 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 prepared up to date account I.e31.03.2003, which was verified by him and the same are ready for audit.
6. Election of the Managing Committee of the Society was conducted in GBM held on 04.11.2003 as per Act & Rules of the DCS. It was also unanimously approved by the GBM dated 02.11.2003 to change the name of the society as Radhey Kunj Cooperative Group Housing Society Ltd. and request was made therein for RCS to approve the amendment in the name of the society.
7. That the election of the Managing Committee of the Society was held on 02.11.2003 as per DCS Act & Rules.
8. That all the Society records are found under the safe custody of Sh.Ram Chander Rana, Secretary of the Society.
9. That the Society was not functioning since long as it was wind up by the order No. F 47/04/79/H/Coop./453458, dated 10.01.1979 on the following ground: a. The society failed to achieve its objects.
b. The society failed to fulfill the statutory obligations as provided under DCS Act, Rules 1973 & Byelaws framed there under.
10. The Managing Committee of the society and other members are not taking interest in the affairs of the society
11. There is no possibility that the Society will achieve its object in near future.
12. That the present Managing Committee has maintained the records as per statutory requirements and is instrumental in its efforts for revival of the society for providing dwelling units to its members for having shelter of their own.
The society vide representation/request vide dated 05012004 (P 12/C) has request for cancellation of winding up order dated 10011979 and assured that in future the society will fulfill all the statutory requirements as per provided under DCS Act/Rules/Directives issued by the Registrar Coop. Societies the society has also requested to condoned the lapses occurred due to lack of knowledge to run the society.
The present managing committee is instrumental in its efforts for revival of the society and has maintained the records as provided under DCS Act and Rules and account of the society are completed up to 31.03.2003 which are ready for audit and the present Managing Committee of the society has also assured that in future they will fulfill all the statutory obligations as provided under DCS Act/Rules & Byelaws framed there under and requested to conducted the lapses occurred in past due to lack of knowledge to run the society.
In view of above and as per inspection report u/s 54 of DCS Act, 1972 submitted by the Inspecting Officer. We may request the competent Authority to consider the following: If agreed, we may reconstruct the main file from the record available with the society.
For revival of the society u/s 63(3) of DCS Act, 1972.
To approve the freeze strength of 164 members for onwards transmission to DDA for allotment of flats.
Dealing Asstt. AR (NW)
CC No. 74/2008 Page 81 / 112
CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014
Perusal of both the notings would show that the society, which was shown to have been wound up on 10.1.1979 was coming to the office of RCS after 25 years. There is a noting dated 12.2.2004 at page 5/N of D 5, wherein it is mentioned that the file may be reconstructed from the records available with the society. This is signed by U. S. Bhatnagar (A6) at Q16 and Yogi Raj(A2) at Q4. It is pertinent to note that winding up order typed in Hindi (Ex.PW31/A, placed at page 210/C of D3) was provided by the society to the RCS office.
The purpose of the reproduction of the aforesaid notings etc. is to show that on 19.01.2004 when the matter was first taken up by U.S. Bhatnagar the Dealing Assistant and Yogi Raj the Asstt. Registrar, the only paper they had with them was the application dt. 5.1.2004, in which only two grounds of winding up were mentioned. The photocopy of the winding up order was not received by them till 01.03.2004 because as per the noting dt. 01.03.2004 (placed at page 6/N, of D3) was received on 01.03.2004 when it was submitted by the society to RCS. In the aforesaid winding up order Ext.PW31/A, four grounds of winding up have been mentioned. Therefore, it leads to only one inference that winding up order was available with them when the first noting dt. 19.01.2004 was prepared. This could have only come from the outside operators, and it shows complicity of A2 & A6 with the private persons.
To put it again, U.S. Bhatnagar (A6) and Yogi Raj (A2) both were having the forged copy of the winding up order when they should not have it with them because while writing the noting dt. 19.01.2004, they CC No. 74/2008 Page 82 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 had only an application dt. 05.01.2004 with them. Further, both of them put an official note on this noting that this society had been brought under liquidation vide order dt. 10.01.1979. Further, they noted that the file was not available in the branch and they proposed to issue a circular for tracing it from the other zones, but, the language of the circular dt. 22.01.2004 Ext.PW61/PX3 is fraudulently aimed. This would be discussed later on. But, the purpose was that no file is sent back to them. I may point out that had it been insisted by Yogi Raj that every branch/zone should give it in writing about non traceability of the file, it could have resulted in some fruitful exercise. As already discussed, audit of EPDP Society had been conducted by P.K. Thirwani and the same was very much available in the office of RCS. These files were handed over to CBI by Ravi Dutt (PW35) who is an LDC in the office of RCS on 27.09.2006. This record would have given valuable information for the purpose of reconstruction of the record because it would have given a correct address, the names of the office bearers and particulars of the bank account of the society. But that was not the intention to procure the correct records for reconstruction of the society.
Yogi Raj has examined defence witnesses i.e. A2/DW1, A2/DW2 and A2/DW3 who are all officials of RCS, to prove that records of EPDP Society are not available in the office till date. However, this evidence does not disprove the intentional disinterestedness of these officials in making proper efforts for reconstruction of the records of society from their own office records. Yogi Raj has also examined A2/DW4, A2/DW CC No. 74/2008 Page 83 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 5, A2/DW6 & A2/DW7 to prove that the circulars had been issued by Sh. R.K. Srivastavathe then Registrar (Prior to Narayan Diwakar) in which it was directed that AR will directly send the file of revival to the Registrar instead of routing it through Jt. Registrar and Dy. Registrar. Therefore, it is argued by Sh. R.P. Shukla, Adv. that no adverse inference should be drawn from the fact that Yogi Rajthe AR had directly sent the file to Registrar. I accept this contention of Ld. Defence counsel.
Yogi Raj has examined A2/DW8 Ram Chander to show that list of the societies including Radhey Kunj was sent back by DDA to RCS. It is argued by Ld. Defence Counsel that finally no process for allotment of land could be initiated. Hence, the offence would not fall within the four corners of Section 15 of P.C. Act or Section 511 of IPC. I disagree with this submission. As soon as a fake society is revived fraudulently, it is a clear case of abuse of official position within the meaning of Section 13(1)(d) of P.C. Act and as soon as the freeze list is sent by RCS office to DDA, the offence of attempt to procure pecuniary advantage to the persons interested in fraudulent revival becomes complete.
Therefore, I hold that U.S. Bhatnagar and Yogi Raj have jointly written the aforesaid notings which are clearly reflective of meeting of their criminal minds in execution of the conspiracy, while being in league with Ram Nath and Gokul Chand Aggarwal, as already discussed above. Their role would be further discussed in later part of judgment.
5. Narayan Diwakar First I will take up the issues raised by Narayan Diwakar in his CC No. 74/2008 Page 84 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 statement under Section 313 CrPC. In this respect, it is argued by Sh. Abhishek Prasad, Adv. (Amicus Curiae) that in official setting, the superior officer cannot work unless he has faith upon his subordinates. He had no reason to believe that the documents presented before him were fake.
I disagree with the submissions of Ld. Defence Counsel. Sh. Abhishek Prasad, Adv. further argues that the Registrar had cancelled the winding up order in exercise of the powers under Section 63(3) of DCS Act.
It is argued that once a society is not liquidated within three years, the society automatically revives and winding up order looses its steam. Therefore, it is argued that Narayan Diwakar had no option but to revive such a society. It is argued that in none of the cases, Narayan Diwakar had rejected application for revival as he was bound to revive the society by the mandate of law. Further elaborating this issue, Ld. Defence Counsel has drawn my attention Rule 105 of DCS Act 1972, which is reproduced as under :
"105. Termination of Liquidation Proceedings The winding up proceedings of a society shall be closed within one year from the date of the order of the winding up, unless the period is extended by the Registrar.
Provided that the Registrar shall not grant any extension for a period exceeding six months at a time and three years in the aggregate, and shall immediately after the expiry of three years from the date of the order for winding up of the society, deem, that the liquidation proceedings CC No. 74/2008 Page 85 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 have been terminated if there are no central amounts due to the Governments or the Financing Bank by the society and pass an order terminating the liquidation proceedings."
It is submitted that as per the rules the winding up proceedings shall be closed within one year from the order of winding up unless the period is extended by the Registrar. It is submitted that the Registrar can extend this period for three years and shall immediately after the expiry of three years from the date of the order of winding up society, deem that liquidation proceedings have been terminated and pass an order terminating the liquidation proceedings.
Thus not only Registrar was within his rights to cancel the winding up order but it would be more appropriate to say that he was bound by the law quoted above to cancel the winding up order and revive the society.
Ld. Defence Counsel has referred to the judgement dated 21.11.1986 passed by Hon'ble High Courtof Delhi in Civil Writ Petition No. 1767/1986 in Vikas CGHS Vs. RCS and I reproduce the last paragraph of the same as under :
"There is an application (C.M. 3058/86) on behalf of Shri Nirmal Singh and Shri Pitam Singh for being impleaded as parties in the petition.
The contention is that for the last number of years no annual general meeting has been held for electing members of the committee. The petitioner has no objection to the holding of the annual general meeting for the election of the CC No. 74/2008 Page 86 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 members of the committee. We direct that the Registrar shall within three months made arrangements for the holding of the elections and the elections shall be held under the supervision of the Registrar or his nominee. Another contention raised is that the petitioner society have removed 60 persons from the membership and made 42 new members. It is contended that before an election is held it should be decided as to who are the members of the society. We leave this to the Registrar to decide as to who are the legally admitted members of the petitioner society. If any member is aggrieved against his removal from the membership of the society or against the induction of a new members to the society he can take appropriate steps in accordance with law."
The above mentioned part shows that High Court has left it for the Registrar to decide as to who are the legally admitted members of the society. In other words, High Court was of the view that if the liquidation proceedings have not been terminated as per Rule 105 of DCS Rules, the society still survives because winding up order has not been taken to its logical conclusion by completely liquidating the society, but in respect of verifying the members of the society, it was held that it was purely within the domain of the Registrar. I may repeat that this court is not disputing the powers of the Registrar, as it cannot, being not an appellate authority upon the RCS and therefore cannot and should not question the legality of the order. The simple issue before this court is as to whether as the time of the passing of the revival order and approving/sending the list of members to DDA for allotment of land, the CC No. 74/2008 Page 87 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 accused had the knowledge that fraud is being played or documents are forged or the members fake. Therefore, real issue is not the revival order and powers to do so by the Registrar, rather the issue is the intention involved in approval of freeze list of fake members and sending the same to DDA for allotment of land. I have already held that as per dicta of 'Runu Ghosh' case, such intention has to be seen from the note sheet and order available on file.
Stressing the point that the Narayan Diwakar was acting in judicial capacity, Ld. Defence Counsel has drawn my attention to Section 77, 78 and 79 IPC, which are reproduced as under :
77. Act of Judge when acting judicially. Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.
78. Act done pursuant to the judgment or order of Court - Nothing which is done in pursuance of, or which is warranted by the judgment or order of, a Court of Justice; if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction.
79. Act done by a person justified, or by mistake of fact believing himself justified, by law. Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.CC No. 74/2008 Page 88 / 112
CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 My attention has also been drawn to Section 76(j) of DCS Act, which provides appeal against the winding order under Section 63 of DCS Act. Ld. Defence Counsel has drawn my attention to Section 19 IPC, which defines 'judge'. I reproduce the same as under :
19. "Judge". The word "Judge" denotes not only every person who is officially designated as a Judge, but also every persons, who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.
(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a Judge.
(b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge.
(c) A member of a panchayat which has power, under Regulation VII, 1816, of the Madras Code, to try and determine suits, is a Judge.
(d) A Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another Court, is not a Judge.
I have considered the submissions of Sh. Abhishek Prasad, Adv. and I find no substance in this submission. To say that while exercising the CC No. 74/2008 Page 89 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 powers under Section 63(3) of DCS Act in cancelling of winding up order of a society, the Registrar was acting judicially has not been accepted by Delhi High Court in Narayan Diwakar Vs CBI 129 (2006) DLT decided on 7.3.2006. This petition was filed by this accused raising same pleas and claiming the protection available to a judge under Section 19 IPC and Section 2 of Judges (Protection) Act 1985. Hon'ble Mr. Justice R. C. Jain of Delhi High Court rejected the said pleas of this accused and opined as under :
"15. This Court on a consideration of the matter and more particularly having regard to the provisions of the Delhi Cooperative Societies Act, 1972 and Judges (Protection) Act, 1985, is of the considered opinion that the petitioner while exercising and discharging functions of the Act and more particularly the powers under Section 63(3) of the Act, cannot be deemed to be a 'Judge' within the meaning of Section 2 of the Judges (Protection) Act, 1985 and, consequently, he cannot claim any protection against prosecution or other legal proceedings. So far as the immunity available to the Registrar and other officers against prosecution etc. under Section 95 of the Act is concerned, suffice it would be to observe that the use of the expression 'good faith' in the said section clearly brings out the mind of the Legislature that the protection granted to the Registrar and other officers for any acts done by them in the discharge or their official duties is not absolute and is circumscribed by the essential condition that the action had been taken and power had been exercised by such officers in good faith. Converse of good faith is 'bad faith' or mala fide and, therefore, if a question arises as to whether the action taken by the Registrar Cooperative Societies or any other officer was in bad faith, the immunity envisaged by Section 95 of the Act will not be available and the question can be gone into by any competent authority including any statutory investigating agency(s) like CBI. In the opinion of this Court, the petitioner cannot be allowed to take refuge under the said provisions and to scuttle the investigation into the cases having large ramifications in the society.
Thus, it is clear that he cannot avail the protection of being a judge while passing the revival order, if prosecution is able to prove 'bad faith' on his part.
Sh. Abhishek Prasad, Adv. Ld. Amicus Curiae for accused Narayan Diwakar has drawn my attention to the testimonies of following witnesses, relevant portion of which is being reproduced as under:CC No. 74/2008 Page 90 / 112
CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 "PW85 Sh. P.K. Roy.... the association EPDP in which I am a member is different from membership of CGHS i.e. it is not a group housing society, but, an association of persons displaced from East Pakistan (now Bangladesh) in and around the year 1947. Since, individual plots were to be alloted as per the scheme of the government, therefore, it was not a group housing society.
PW8 Sh. Paras Nath..... It is correct that the name of Radhey Kunj CGHS exists at serial no. 1 having registration no. 04 with a membership strength of 164. The same is reflected at point X to X. No offer of allotment of land was sent to this society. The land is alloted in the name of society and not in the name of individual members.
PW95 Sh. Deepti Kumar Chatterjee..... I was a member of EPDP Housing Society and a land was alloted in Chittaranjan Park, Delhi by the government. This society was not know as EPDP/Radhey Kunj. I do not know anything about EPDP/Radhey Kunj. Initially, I was the Secretary of EPDP Housing Society somewhere in the year 197273."
It is, thus, argued that EPDP/Radhey Kunj is a different society than EPDP Society. Therefore, the Registrar cannot be held guilty for reviving an already existing society. I am of the opinion that this defence is only an after thought. The photocopy of the bye laws (Ext.PW92/M2) submitted for reconstruction and revival placed at page 226/C of D3 mention the name of the society as East Pakistan Displaced Persons Association. Similarly, the copy of winding up order Ext.PW31/A (placed at page 210/C of D3) also mentions the name of society as East Pakistan Displaced Persons Group Housing Society. A photocopy of the registration certificate (Ext.PW72/M) was also furnished by Ram Chander Rana (read Gokul Chand Aggarwal) to RCS office and the same also mentions the name of East Pakistan Displaced Persons Cooperative Group Housing Society with registration no. 4(H). Hence, there is no substance in this submission.
Now I take up as to what is written in the revival order passed by Narayan Diwakar. The revival order is Ext.PW61/PX7 placed at page no. 316/C of D3 which is reproduced as under:
CC No. 74/2008 Page 91 / 112CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 "IN THE COURT OF REGISTRAR COOPERATIVE SOCIETIES GOVT. OF N.C.T. OF DELHI OLD COURT'S BUILDING, PARLIAMENT STREET, NEW DELHI110001.
Case No. RCS/029/04/421426 Dated: March, 12, 2004 ORDER Whereas the E.P.D.P. CGHS Ltd. (Now RADHEY KUNJ CGHS LTD.) (Regd. No. 04/GH), Village & PostKhera Khurd, Delhi110082, was issued a Show Cause Notice, on the following grounds, as per the report of AR(N/W):
1) The Society failed to achieve its objects.
2) The Society failed to fulfill the statutory obligations as provided under DCS Act and Rules and registered byelaws framed there under.
3) The M.C.of the Society failed to hold the election as provided u/s 29 of the s DCS Act, 1972.
And whereas, the Society failed to respond to the above mentioned Show Cause Notices u/s 63(2)(b) of the DCS Act, 1972, the Society was put under Liquidation vide this office order no. F.47/04/79/H/Coop./453458 dated 10011979.
And whereas, the Society vide its letter dated 05012004, requested for revival of the society u/s 63(3) of the D.C.S. Act, 1972 and has requested the Registrar Cooperative Societies for the withdrawal of winding up order dated 10011979.
And whereas, Mrs. Rita Kaul, Adv. representing the Society appeared before this court on the dates fixed and stated that in the Special General Body Meeting held on 02112003, elections for the Managing Committee of the Society were got conducted strictly in accordance with the provisions of law. It is also stated that the list of 164 members as on date has been drawn up in the prescribed proforma on the basis of the record of the Society and has been submitted for verification. As regards Audit, it is mentioned that all the pending accounts are ready for Audit and filed photocopies of the unaudited accounts of the society till 31032003. The President and Secretary of the Society made oral commitments to fulfill all the statutory liabilities in future and also filed affidavits dated 03032004 to this effect. They were directed to file all original records before the Asstt. Registrar concerned for verification.
And whereas, the Asstt. Registrar (N/W) has mentioned the followings in the report:
1) that the original records were produced by the society and got verified.
2) that the society has submitted a list of 164 members as on date and un audited accounts till the period ending 31032003.
3) that the records regarding holding of election of M.C. of the Society on 02112003 have been verified and found in accordance with the provisions of the cooperative law.
4) that the application forms, share money receipts and resolution of M.C. of newly enrolled members have also been verified from the original records.
CC No. 74/2008 Page 92 / 112CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014
5) that fresh affidavits in respect of all 164 members of the society have also been filed by the Society.
6) that an inspection u/s 54 of DCS Act, 1972 was conducted to ascertain the existence and functioning of the Society and the Inspector, who conducted the statutory inspection u/s 54 of the DCS Act, 1972 has reported that the Society is very much in existence.
7) That a physical verification of members, at random was also conducted by an Inspector of this Department, who has given his favourable report.
8) that the society has tried to remove the shortcomings on the basis of which the society was put under liquidation.
9) that the M.C. of the society was continuously managing the affairs of the society and was instrumental in its effect to revive the society.
Apart from the above, during the course of proceedings, the concerned zonal AR appeared and stated that in absence of finalization of liquidation proceedings, action initiated u/s 63 of D.C.S. Act, 1972 has become a nullity and recommended the case of the Society for revival.
I have gone through the submissions made and affidavits filed by the President and Secretary of the society and the report submitted by the Asstt. Registrar (N/W). It was mentioned during the course of proceedings that the winding up order passed by the then Dy. Registrar, was not in accordance with the laid down procedure, while winding up the Society as the reasons given were not adequate for initiating such an extreme step leading to the winding up of the Society. If there was any mis management in the Society, it was appropriate to first initiate action u/s 32 of DCS Act, 1972 for placing the society under supercession for setting right the working of the Society and then restoring the cooperative management. Such orders for winding up of a society without proper application of mind is not conducive for revitalization and restrengthening of the cooperative movement in Delhi. Moreover, during the course of arguments, the counsel of the Society also mentioned that Dy. Registrar, who had passed order u/s 63 of DCS Act, 1972 was not competent to pass such an order as only the Registrar is competent to decide the matter u/s 63. There is also nothing on record to show that such powers u/s 63 exercisable by Registrar were delegated to the Dy. Registrar by the competent authority. It appears that during the time this order was passed, a large number of societies were wound up in a mechanical manner without any valid and convincing reasons. It also appears that he Society was not given sufficient opportunity either to reply to the SCN issued to the Society or to rectify the shortcomings mentioned in the notice issued by the RCS.
In support of the above contention, it is pertinent to add th at vide his Order No. PA/RCS/2000/733745 dated 782000, my Ld. Predecessor had issued a detailed instructions regarding the revival of those societies which were wound up in a large number but liquidation proceedings were not initiated or completed due to various reasons pointed out in the said order. He has further observed in the said order that the societies have been liquidated on veryvery trivial matters like non attendance in the office of the society's representatives or non production of records and thereafter liquidation proceedings have been taken up unilaterally. In some cases even communication to societies has not been sent. It is further observed that all such proceedings where the fate of the members at large is at stake, like those of de registration u/s 19, liquidation and revival u/s 63 and supercession u/s 32 need to be CC No. 74/2008 Page 93 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 taken up in a more reasoned manner and after following due process of law, ie. By giving an opportunity of showing cause to the concerned Managing Committee of the Society and the speaking order has to be passed. In view of this, he directed that "henceforth, all the proceedings u/s 19 & 63 of the DCS Act, 1972 should be taken up in the Court of RCS."
Besides, on 18121991, while disposing of an appeal against the winding up order of the Registrar, Cooperative Societies in respect of New Indraprastha CGHS Ltd., u/s 76 of the Delhi Cooperative Societies Act, 1972 (Mrs. Balwinder Kaur and Ors., Appellants Vs RCS and Ors.), the Hon'ble Lt. Governor had observed as under:
"I am inclined to agree with the submissions made by the Ld. Counsel for the appellants that the winding up of a Society is an extreme step and should be used as a last resort. In the present case, a liberal view needs to be taken and the Society may be afforded another opportunity for its revival. The Society may be revived under the directions of the Registrar, Cooperative Societies, if necessary, under an Administrator."
In view of the facts and circumstances as stated above and taking into consideration that no final liquidation order has been passed, I, N.Diwakar, Registrar Cooperative Societies, Govt. of NCT of Delhi, hereby cancel the winding up order dated 10011979 issued to the E.P.D.P. CGHS Ltd. (Now RADHEY KUNJ CGHS LTD.) (Regd. No. 04/GH), in exercise of the powers vested in me u/s 63(3) of the Delhi Cooperative Societies Act, 1972 with immediate effect. Consequently, E.P.D.P. CGHS Ltd. (Now RADHEY KUNJ CGHS LTD.) (Regd. No. 04/GH), is hereby revived with immediate effect,a s the concerned Asstt. Registrar has already verified the list of 164 members submitted by the Society subject to the condition that the pending audit shall be got completed within two months time.
In addition to above, keeping in view the principle of natural justice and cooperative spirit, I hereby appoint Sh. Deen Bandhu Prasad, Gr.IV., of this department as Election Officer to conduct the election of the Managing Committee of the Society within two months of the issue of this order. The President/Secretary of the Society are directed to cooperate with the Election officer so appointed, failing which action will be initiated against the Society as per law.
Announced.
(N.DIWAKAR) REGISTRAR COOP. SOCIETIES"
It is argued by Sh. Abhishek Prasad, Ld. Amicus Curiae for accused Narayan Diwakar that the aforesaid order is based upon previous practice, as adopted by his predecessor, who revived every society which moved an application before him and that Registrar also relied upon the CC No. 74/2008 Page 94 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 order of the Lt. Governor mentioned in this order in which it was held that a liberal approach should be adopted in the matters of revival of the societies. It is argued by Ld. Amicus Curiae that Narayan Diwakar has referred to the verification report by Ram Nath and the notings of his subordinates i.e. Dealing Assistant and Assistant Registrar and relying upon their reports, Narayan Diwakar being a Registrar passed the aforesaid order. It is argued by Sh. Abhishek Prasad, Ld. Amicus Curiae that there is no evidence on record to show Naryan Diwakar was in touch with accused Gokul Chand Aggarwal or any other person and had acted in collusion with them. Ld. Amicus Curiae has drawn my attention to Dr. Subramanyam Vs. A.Raja (in SLP (Crl.) no. 1688 of 2012 decided on 24.8.2012) it was held by Hon'ble Supreme Court that criminal conspiracy cannot be presumed on the mere fact that there were official discussions between the officers. It was held that suspicion, however strong, cannot take place on legal proof and the meeting between P.Chidambaram and A.Raja would not by itself be sufficient to infer the existence of a criminal conspiracy. It was further held that a wrong judgment or an inaccurate approach or poor management by itself cannot be said to be product of criminal conspiracy. It is therefore argued that material is deficient on record to show that Narayan Diwakar was in league with the coaccused persons.
It is true that there is no direct evidence of complicity between Narayan Diwakar and Gokul Chand Aggarwal or any other private person. However, it is to be seen as to whether the conduct of the Registrar simply CC No. 74/2008 Page 95 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 shows poor control over his staff and a careless attitude, or it reflects a mensrea in commission of the offence. First of all, the application is coming after 25 years of its alleged winding up. This itself should have alerted all the RCS officials including Narayan Diwakar. Second, the records in this case were stated to be untraceable. Narayan Diwakar did not insist on making serious efforts for tracing of the records. Had a serious effort been made, some record could have been found. The investigating officer had seized the audit files D35 & D36 of actual EPDP Society upto 19992000 from PW35 Ravi Duttan LDC from RCS office vide seizure memo Ext.PW35/A. If this file was available in the RCS office, it must have been made available to the RCS if real efforts were made to trace the records. These audit file proves that even in the year 2000, the office of EPDP Association was situated in Chittaranjan Park, New Delhi19. This also shows the signatures of I.M. SahaSecretary of EPDP Housing Society on the balance sheets. Sh. I.M. Saha has been examined by prosecution as PW66. The society also has a bank account in Bank of India copy of which along with the account number is very much available in this file. There was another method of reconstruction of the file. The societies after formation take active interest in allotment of land and indulge in correspondence with DDA for allotment of land. Therefore, there is always possibility of availability of some records of the society with DDA also. For the purpose of reconstruction, and for the purpose of knowing the status of society in respect of allotment of land, a letter could have been written to DDA for the purpose of clarifying if any CC No. 74/2008 Page 96 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 record of EPDP society available with DDA or not, or as to whether the land was allotted to it or not. The prosecution has examined Pw63 Sh. V. K. Sharma, who retired from DDA as Deputy Director. During investigation, he handed over a file Ex.PW92/F to the Investigating Officer. This file (D11) contains detailed notings in respect of allotment of land to EPDP society. The notings start from 1983 till 23.8.1985. There are letters by EPDP society written to various authorities. Had this record been called, the RCS office must have been very clear that the society is active and was not wound up in the year 1979. Hence, the fact that a society which is coming after 25 years praying for revival, and the RCS staff reporting about the unavailability of the records coupled with the fact that some records were actually available in the RCS office but Registrar did not press for thorough search of the records, nor anyone from the RCS office including Narayan Diwakar wrote a letter to DDA to know as to whether some records of the society were available with it or not, collectively points out that in fact this revival was a deliberate and fraudulent act by Narayan Diwakar. This revival order should be seen in the backdrop of the circumstances that false inspection report is being submitted by Ram Nath, the draft of inspection report, circular, letter appointing inspecting officer etc. are found in the computer of someone else outside the office of RCS, none of the subordinate staff asking as to why the society had been sleeping for about quarter a century, leave me in no doubt about the full complicity of Narayan Diwakar in the conspiracy in question.CC No. 74/2008 Page 97 / 112
CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 I would add here that as per Kaveri CGHS judgment relevant portion of which has been reproduced by me, the importance of the approval of the freeze list by Registrar has been underlined by holding that the effect of approval is that the Registrar recognizes the correctness of the list as filed by the society. The arguments of the defence that he simply relied upon the report of his subordinate does not hold good because when Registrar passed the revival order mentioning that Assistant Registrar has already verified the 164 members of the society, he overlooked as to how verification was done without asking any identity proof. The revival order is a long order in which many issues have been discussed by Narayan Diwakar. But behind this order lies concealed the real issue i.e. neither he asked as to how after 25 years the society has woken up, who are the office bearers and did they have any identity proof, why the really serious efforts were not made to trace out the original file etc. I may add here that this society was picked up because it was having a number 4 of the year 1968, therefore, had every chance in allotment of land by DDA.
Ashwani Sharma As I have already discussed, the premises of Ashwani Sharma was searched and a computer/hard discs were seized vide search list Ext.PW89/A. From searching the contents of this computer, the draft of the inspection report by Ram Nath, draft of appointment of Ram Nath as inspection officer by Yogi RajAssistant Registrar and draft of the circular for tracing out the file under the authority of Yogi RajAssistant Registrar CC No. 74/2008 Page 98 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 were found. All the accused persons argued that it was Ashwani Sharma who was the real operator indulging in revival of the present society. It is argued that prosecution has neither made him a witness nor an accused. The grievance of accused Gokul Chand Aggarwal is that CBI has deliberately left out Ashwani Sharma due to ulterior reasons and foisted this case upon him. Sh. S.P. Mehta, Adv. for accused Gokul Chand Aggarwal submits that Insp. N.M. Sehrawat is the part investigating officer in this case and that on the complaint of Gokul Chand Aggarwal, Insp. N.M. Sehrawat was caught red handed by CBI itself accepting the bribe in society scam cases.
I fully agree with the submissions of Ld. Defence Counsels that Ashwani Sharma is a very important link in the chain of this conspiracy and I am of the considered view that he should have been cited as an accused in this case. There is lapse in this aspect. However, it is an admitted position that Ashwani Sharma is facing trials as an accused in large number of the cases of CGHS scam in this court as well as in other courts. Hence, I am not inclined to proceed u/s 319 CrPC against him. Still if Ashwani Sharma is out of the trial, the same does not provides any relief to the other accused persons who have been proved to be fully involved in the conspiracy.
Conspiracy I have already discussed that in the application dt. 5.1.2004 (placed at page 2/C & 1/C of D3) the applicant has mentioned only two grounds on which Dy. Registrar had wound up the society vide order dt.CC No. 74/2008 Page 99 / 112
CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 10.01.1979. However, the dealing clerk Ram Nath prepared a noting dt. 19.1.2004 in which he has mentioned four grounds on which the society was brought under liquidation vide order dt. 10.01.1979. At the cost of repetition, I reproduce the relevant portion i.e. first paragraph of the application/request dt. 06.01.2004 for cancellation of winding up order as under:
"To Dated: 05.01.2004
The Asstt. Registrar (NW)
Office of the RCS,
Old Court Building,
Parliament Street,
New Delhi.
Sub.: Request to cancel the windup order u/s 63 of The E.P.D.P. Cooperative Group Housing Society Ltd. Regd. No. 04(H) NorthWest Zone Hon'ble Asstt. Registrar, The E.P.D.P. Cooperative Group Housing Society Ltd. was registered at Regd. No. 04(H) with the department on 12.07.1968 with the objects to acquire land and construction of flats for its members. But, the same was wind up by the order of the Deputy Registrar (GH), Cooperative Societies on vide order no. F 47/04/79/H/Coop./453458, dated 10.01.1979 on ground of:
1. The society failed to call Annual General Body Meeting.
2. The society failed to hold the election of the Managing Committee.
............"
Again at the cost of repetition, I reproduce the relevant portion of very first noting dt. 19.01.2004 written by U.S. Bhatnagar, Dealing Assistant (A6) as under:
".....
In this connection it is submitted that the society was brought under the liquidation under section 63 of DCS Act 1972 vide order No. F.47/04/79/H/Coop./453458 on dated 10.01.1979 on the following rounds:
a) The society has failed to achieve its basic objective and not likely to achieve its objective in near future.
b) The society has failed to act in accordance with Delhi Cooperative Societies Rules 1973 and as per the provisions of registered byelaws of the society.
c) The Managing Committee Members and other members of the CC No. 74/2008 Page 100 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 society are not showing any interest in the working of the society.
d) It does not appear that there is any hope to keep the society alive any more in order to achieve its aim in any manner or so.
......"
I make it clear that when U.S. Bhatnagar wrote the first noting which is duly signed by Yogi Raj, the Assistant Registrar, the only material before them was a PUC i.e. the above quoted letter dt. 05.01.2004 in which only two grounds for winding up/liquidation have been mentioned. It is strange that the aforesaid noting by the dealing assistant and the Assistant Registrar i.e. U.S. Bhatnagar and Yogi Raj mentions four grounds of liquidation.
It is to be noticed that the recommendation to reconstruct the file was made by A6 & A2 vide noting dt. 09.02.2004. The reconstruction proceedings took place on 01.03.2004 (see page 6/N of D3) in which the society submitted the photocopies of various documents including the photocopy of liquidation order dt. 10.01.1979 Ext.PW31/A. This liquidation order in Hindi mentions four grounds on which the order was passed. Therefore, on 19.01.2004 when U.S. Bhatnagar and Yogi Raj mentioned four grounds for liquidation from their own knowledge, either it means that the forged winding up/liquidation order was available with them as on 19.01.2004, because in this order four grounds have been mentioned for winding up the society, or it can be inferred that already prepared noting was provided to these officials. In any case, it leads to only one inference that both of them were acting in collusion with the CC No. 74/2008 Page 101 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 fraudulent operators of a fake society. Had these officials been acting only on the PUC, they would have mentioned only two grounds. The mensrea of these two officials is reflected from the fact that they have written this noting about winding up as if they were authenticating this fact from some official record. I have already discussed that the photocopy of this order Ext.PW31/A is purportedly signed by Sh. Ashok Bakshi, the then Dy. Registrar (PW31), who has testified that the signatures in the winding up dt. 10.01.1979 are not his and someone has fabricated his signatures.
Thus, when the first noting dt. 19.01.2004 on the PUC (which is a letter/request for cancelling the winding up order), the forged winding up order was within their hands and was obviously supplied by those persons who were trying to fraudulently revive an already existing and flourishing society.
The scientific evidence has exposed as to how the RCS officials were conspiring with private persons. PW89 Sh. R.K. Bansal had witnessed a search by CBI at the house no. 227, Pocket A, Mayur Vihar PhaseII, Delhi of one Ashwani Sharma. This witness has proved the search list (D46) dt. 01.08.2005 (Ext.PW89/A) vide which CBI seized computer hard discs from the aforesaid premises which was sealed at the spot with the seal of CBI. Prosecution examined N.C. Soodthe Government Examiner as PW 90 who testified that a letter Ext.PW90/G was received by him. This letter is written by D.K. ChaudharySP, CBI who had sent five CPUs/hard discs to him vide this letter dt. 04.07.2006 along with a questionnaire.
CC No. 74/2008 Page 102 / 112CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 He also proved the GEQD report signed by him and another expert Late Sh. I.S. Rao as Ext.PW90/F (D40). The scientific examination and search by these experts resulted in taking out the print outs of large number of documents pertaining to various societies. During trial it came to the notice of this court that Sh.I.S. Rao had expired and therefore Sh. N.C. Sood who had signed the forwarding letter to the SPCBI along with the report was examined by prosecution to prove it and the report is relevant and admissible u/s 32(2) of Indian Evidence Act, 1872 because Sh. I.S. Rao the Government Examiner had prepared the report in discharge of his professional duty.
Along with the report, the print outs of the material which was searched in the said hard discs is annexed. The page 107 of this report (D40) is the draft of the circular issued for the purpose of tracing out the file. The actual circular is placed at page no. 4/C of D3 which is specifically marked as Ext.PW61/PX3. On comparing the print out and the circular, there is no doubt that the circular issued under the signatures of Yogi Raj is same in font and content, as available in the aforesaid print out. I reproduce the said circular as under:
" OFFICE OF THE REGISTRAR, COOPERATIVE SOCIETIES, GOVT. OF NCT OF DELHI, PARLIAMENT STREET, NEW DELHI110001 (NorthWest Zone) The main file of E.P.D.P. Cooperative Group Housing Society Ltd. (Regd. No. 04(H) dated 12.07.1968) Village & PostKhera Khurd, Delhi110082, pertaining to this zone is not traceable. It appears that the same might have been lying or tied up with the file of other zone.
All the Branch/Zone officers and officials of this department are requested to search CC No. 74/2008 Page 103 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 (tables, almirahs and files of concerned zone) the main file of the above said society and return the same to this zone, if found within one week, otherwise in the event no reply is received from the concerned zone within stipulated period it shall be presumed that no such file is lying in your zone.
(YOGI RAJ)
Asstt. Registrar (NW)
All Branch/Zone Officers/Officials
No. F.47/04/GH/Coop./NW 8795 Dated: 22/1/04"
It is pertinent to note that this circular is drafted in a very clever manner. It is intended that actually no serious effort to trace out the record was made by the respective zones. That is why it is written in the circular that if no response is received from any of the branch within one week, it would be presumed that no file was available in the respective branch. Had they been serious in actually tracing the record, they should have insisted for the written reply from each branch that they have searched but did not find the record. Therefore, the language of this circular is further indicative of the mensrea of the aforesaid officials.
Further, there is a print out at page 173 in the report Ext.PW90/F (D40) which is an order appointing Sh. Ram Nath, GradeII as inspection officer with Yogi RajAssistant Registrar (NorthWest) being issuing authority. This print out taken out from the computer recovered from the house of Ashwani Sharma is same in its font, content and formatting as the actual order issued under the signatures of Yogi Raj which is placed at page no. 3 of D3 (specifically marked as Ext.PW61/PX4).
After appointment of Ram Nath as the inspection officer, Ram Nath sent an inspection report to Assistant Registrar NorthWest vide his letter dt. 03.02.2004. The perusal of the report (D40 page 159 and 161) CC No. 74/2008 Page 104 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 shows that this entire report was available in the computer recovered from the house of Ashwani Sharma, though, the font and formatting are different.
All these facts leave me in no doubt that these accused persons were actively colluding and someone outside the RCS office was dictating them as to what was to be done. It is argued by Sh. R.P. Shukla, Adv. for accused Yogi Raj that the computer was not seized from the possession of the accused persons. Rather, it was seized from the possession of a person who is neither a witness nor an accused in this case. Therefore, accused Yogi Raj is not under an obligation u/s 106 of Indian Evidence Act to explain as to how the contents of the orders of Yogi Raj are found in the computer of Ashwani Sharma. It is argued that it is possible that after issuing the orders and the inspection report as above, someone could have typed the same in the aforesaid computer for some purpose like practicing the typing on the computer. I have considered the submissions of Sh. R.P. Shukla, Adv. and I would only say that only by any strenuous exercise or through an extremely laboured approach, such type of interpretations or inferences can be drawn. The things should be seen as they happen naturally. The picture which emerges from the aforesaid facts is that accused U.S. Bhatnagar, Yogi Raj and Ram Nath were acting in unison with outside partners. Accused P.K. Thirwanithe Auditor went to the extent of signing on the space meant for the office bearers, where he signed the name of those office bearers namely Ram Chander Rana, Bholla Dutt and Nirmal Kumar. It is pertinent to note that as per Rule 84 CC No. 74/2008 Page 105 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 (5) of DCS Rules, 1973 he was duty bound to visit the office of the society for the purpose of audit. There is no order of Registrar that audit would be done even at the office of RCS. Probably, not visiting the registered office could have amounted to mere dereliction of duty. However, the fact that P.K. Thirwani had ventured to put the signatures of the office bearers in his own handwriting shows as to what was happening.
This presents a picture where the entire staff/officials of RCS are colluded and acting only in one direction i.e. fraudulent revival of a society, which actually was never liquidated.
Accused Narayan Diwakar put a stamp of approval over all these activities by passing the revival order. It is true that there is no direct evidence of Narayan Diwakar acting in collusion with Gokul Chand Aggarwal, Ashwani Sharma or any other person, but, as I have already discussed, the inferential evidence is more than sufficient on record to show that everything was being done with his knowledge, consent and approval of all the fraudulent activities. Accused Gokul Chand Aggarwal has been proved to be holding all the forged records of the society. It is he who had made an application for revival of the society/cancelling the winding up of the society, under the name of Ram Chander Ranathe Secretary. It is he who had signed the affidavit as Ram Chander Rana the Secretary which is Ext.PW94/A. In this affidavit it has been undertaken that he will hold annual general body meeting, elections, annual audit etc. It is he who had signed as Nirmal Kumarthe President in the affidavit Ext.PW94/B. It is he who had furnished another affidavit CC No. 74/2008 Page 106 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 Ext.PW94/C under the name of Ram Chander Ranathe Secretary. It is he who had signed as Ram Chander Ranathe Secretary on the most important affidavit Ext.PW94/D in which he had given the list of the resigned members, newly enrolled members and has stated at last para of page 6 of this affidavit (on page 297/C of D3) that all the documents which have been referred to in this affidavit are in his safe custody. On every important document of the society including the freeze list, he has forged signatures of the fake office bearers. Therefore, Gokul Chand Aggarwal is head over heals in the conspiracy along with the RCS officials in getting the fraudulent revival of the society. Narayan Diwakar while passing the revival order, directed all his mental faculties to show that how a liberal approach in reviving the societies is required. However, mensrea is reflected from the fact that he did not ask the representative of the society coming before him about his identity, why he did not ask the Assistant Registrar to collect the identity proofs of atleast of the office bearers and did not ask anyone as to why they had been sleeping for 25 years and how the society has been activated suddenly. In fact, paper work has been done for the purpose of reconstruction of the file, instead of really impressing for making genuine efforts in this direction. Hence, I am left in no doubt about the complicity of Narayan Diwakar in the entire conspiracy.
Section 197 CrPC In view of the above discussion, it is clear that the conspiracy in question goes much beyond the official acts. Much activity behind the CC No. 74/2008 Page 107 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 scene is clearly visible. The entire conspiracy is so big that the umbrella of Section 197 CrPC falls short to protect the accused Narayan Diwakar. I have already mentioned that question of protection of Section 197 CrPC is required to be answered in respect of Narayan Diwakar only, he having retired before taking of the cognizance. In respect of the remaining public servants, this issue is not relevant, as the sanction under Section 19 of Prevention of Corruption Act is duly proved against them. Hence, no benefit be given to the accused persons with the aid of Section 197 CrPC. Summing up In view of the above discussions, I am of the opinion that the prosecution has proved all the charges against all the accused persons. Accordingly, I convict all the accused persons under Section 120B IPC read with Section 419/420/468/471 IPC and u/s 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988.
I further convict accused Narayan Diwakar (A1), Yogi Raj (A2), Ram Nath (A3), P. K. Thirwani (A5) and U. S. Bhatnagar (A6) for committing offences under Section 15 r/w Section 13(1)(d) of Prevention of Corruption Act, 1988.
I further convict accused Gokul Chand Aggarwal (A4) for the offences under Section 419/468/471 IPC. I further convict Gokul Chand Aggarwal u/s 420 IPC r/w 511 IPC.
Announced in the open court on this 27th day of November, 2014.
(VINOD KUMAR) SPECIAL JUDGEII: CBI ROHINI/DELHI CC No. 74/2008 Page 108 / 112 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 IN THE COURT OF SPECIAL JUDGEII (PREVENTION OF CORRUPTION ACT 1988) (CBI), ROHINI, DELHI CC No. 74/2008 CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS)
1. Narayan Diwakar S/o Late Chhati Lal R/o G30, Masjid Moth, Greater KailashII, New Delhi48.
2. Yogi Raj S/o Sh. Girdhari Lal R/o H. No. AP77, Shalimar Bagh, Delhi88.
3. Ram Nath S/o Late Bishan Lal R/o H. No. 192, Gali No. 9, West Guru Angad Nagar, Laxmi Nagar,Delhi92.
4. Gokul Chand Aggarwal S/o Late Jagdish Prasad R/o A603, Ashoka Apartments, Sector9, Rohini, Delhi.
5. Prahlad Kumar Thirwani S/o Late Moti Ram Thirwani R/o 348 EPocketII, Mayur Vihar, PhaseI, Delhi91.
CC No. 74/2008 Page 109 / 112CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014
6. U.S. Bhatnagar S/o Late Shiv Shankar Bhatnagar B479, TypeII, Delhi Administration Flats, Timarpur, Delhi85.
New address.
Flat No. 14, Maurya Enclave, Khasra No. 844, Gali No.2, Sant Nagar Burari, Delhi84.
O R D E R O N S E N T E N C E 28.11.2014 Present: Dr. Padmini Singh, Ld. PP for CBI.
All the convicts with their respective counsels.
Dr. Padmini Singh, Ld. PP for CBI has prayed for a higher dose of sentences for all the convicts on the ground that all of them have been convicted previously by this court and also by the other courts in many cases.
On the other hand, Ld. Defence Counsels have prayed for a lenient view submitting that their appeals are still pending in Hon'ble High Court of Delhi and unless those appeals are decided, they should not be presumed to be previously convicted persons.
It is argued by Ld. counsels of the public servants that not only the convicts have lost their pensions and jobs, but also, they have been financially drained because of fighting a large number of cases in the courts. Hence, it is prayed that this factor should also be kept in mind while awarding the sentences.
CC No. 74/2008 Page 110 / 112CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014 I have considered the rival submissions and I award the sentences as under:
(1) All the convicts are sentenced to Rigorous Imprisonment for One year and fine in the sum of Rs. 1000/ each u/s 120B IPC r/w Section 419/420/468/471 IPC r/w Section 13(1)(d) & 13(2) of Prevention of Corruption Act, 1988 and in default of payment of fine, they shall further undergo Simple Imprisonment for one month.
(2) Convict Narayan Diwakar, Yogi Raj, Ram Nath, P.K. Thirwani and U.S. Bhatnagar are further sentenced to Rigorous Imprisonment for One year and fine in the sum of Rs. 1000/ each u/s 15 r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. In default of payment of fine, they shall further undergo Simple Imprisonment for one month.
(3) I sentence the convict Gokul Chand Aggarwal as under:
(i) Rigorous Imprisonment for Three years and fine in the sum of Rs.
1000/ u/s 420 IPC r/w Section 511 IPC. In default of payment of fine, he shall undergo Simple Imprisonment for one month.
(ii) Rigorous Imprisonment for Three years and fine in the sum of Rs. 1000/ u/s 419 IPC. In default of payment of fine, he shall undergo Simple Imprisonment for one month.
(iii) Rigorous Imprisonment for Three years and fine in the sum of Rs. 1000/ u/s 468 IPC. In default of payment of fine, he shall undergo Simple Imprisonment for one month.
CC No. 74/2008 Page 111 / 112CBI Vs Narayan Diwakar etc. (Radhey Kunj CGHS) Judgement Dt. 27.11.2014
(iv) Rigorous Imprisonment for Three years and fine in the sum of Rs. 1000/ u/s 471 IPC. In default of payment of fine, he shall undergo Simple Imprisonment for one month.
All the sentences shall run concurrently.
If any convict has remained in custody during trial, benefit u/s 428 CrPC be also given to him.
File be consigned to record room.
Announced in the open court on this 28th day of November, 2014.
(Vinod Kumar) Spl. JudgeII, CBI Rohini/28.11.2014 CC No. 74/2008 Page 112 / 112