Delhi District Court
Cbi vs . Gokul Chand Aggarwal & Others. on 17 August, 2011
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 37/11
RC No. 9(S)/2005/SCBII/CBI
CBI Vs. Gokul Chand Aggarwal & Others.
(Service Officers CGHS)
Reserved for order :27.7.2011
Date of Order: 17.8.2011
O R D E R O N C H A R G E
1.The case of the CBI in brief is that Service Officers Cooperative Group Housing Society (CGHS) was registered with Registrar Cooperative Societies (RCS) on 23.11.73 with address of registration mentioned as C/o Major T.S. Sethi, Kashmir House, DHQ, New Delhi. However, this society was wound up by order dt. 16.5.79 issued by Sh. Ashok Bakshi, the then Deputy Registrar, as it was not functional as per Delhi Co operative Societies Act, 1972 (hereinafter referred to as 'DCS Act') and DCS Rules. On 19.9.2003, after a gap of more than 24 years, a letter dated 16.9.2003 was received in the office of RCS from one Mahavir Prasad, Secretary of Service Officer CGHS with the registration office at M46, 2nd Floor, Greater Kailash II, New Delhi with a request to cancel the winding up order dated 16.5.1979. The said letter was processed by accused G.S. CBI Vs. Gokul Chand Aggarwal & Ors. Page 1/13 (Service Officers CGHS) Bisht, the then dealing clerk, South Zone, Office of the RCS. He recorded a false note on the notesheet of the file of Service Officers CGHS on 29.9.2003 mentioning therein that the registered address of Service Office CGHS has been shifted to M46, 2nd Floor, Greater KailashII, New Delhi. Though, the original file was untraceable, accused Narayan Diwakar, the then RCS, deliberately failed to point out the lapses while approving the proposal of the dealing Assistant. Accused Narayan Diwakar dishonestly approved the reconstruction of the files on the basis of records produced by the society without verification of the winding up order submitted by them. Accused G.S. Bisht willfully did not scrutinize and verify the revival application with which no document or winding up order was annexed.
2. During investigation it was revealed that Mahavir Prasad, the secretary of the society, who had sent the revival application was fake and non existent and it was accused Gokul Chand Aggarwal who had signed the application. Accused Man Singh, the then Asstt. Registrar (South), in furtherance of the said conspiracy, passed an order dated 4.12.2003 appointing U.S. Bhatnagar, Grade III as Inspection Officer of the society to verify/examine the records of the society and bring out the CBI Vs. Gokul Chand Aggarwal & Ors. Page 2/13 (Service Officers CGHS) factual position of the society. On 16.12.2003, accused U.S. Bhatnagar produced a false report mentioning therein that the Service offficers CGHS functioning at M46, 2nd Floor, Greater KailashII, New Delhi with total strength of 147 members and that he had met Sh. Mahavir Prasad, Secretary, at Society's Office. Accused U.S. Bhatnagar collected the copy of the unaudited accounts, registered byelaws, registration certificate, liquidation order dt. 16.5.79, list of 147 members, copy of the minutes of GBM dated 30.6.03, election report etc. of the society with the intention of getting the society revived fraudulently. During investigation it was further revealed that no office of the society ever functioned at M46, 2nd Floor, Greater KailashII, New Delhi which was exclusively used as residence by one Sh. Rajesh Ahuja.
3. The report of U.S. Bhatnagar alongwith the collected documents were taken by Mrs. Sunanda, Dealing Clerk, who submitted a proposal for taking the above mentioned documents on record in order to reconstruct the file of the society and for consideration of the request of revival of the society u/s 63(3) of the DCS Act. Accused N.S. Khatri, the then Reader to the RCS, proposed issuance of notice to the President/Secretary of the society for initial hearing on 6.1.04 in the court of RCS which CBI Vs. Gokul Chand Aggarwal & Ors. Page 3/13 (Service Officers CGHS) was approved by RCS on 19.12.03. On 6.1.04, accused Narayan Diwakar directed the Assistant Registrar Man Singh to conduct physical verification as well as door to door survey of members at random. On 14.1.04, accused Man Singh appointed accused Faiz Mohd. for the aforesaid purpose who vide his report dt. 21.1.04 submitted the list of members of the service officers CGHS. It was established during the investigation that the members who were verified by accused U.S. Bhatnagar and accused Faiz Mohd. were not genuine.
4. Accused Sunanda took on record the report of accused Faiz Mohd. and the affidavits shown to have been filed by the President/Secretary and 147 individual members of the society. She wrote detailed note requesting for revival of the society by the RCS and approval of the freeze list of 147 members for allotment of land. Investigation has revealed that the facts mentioned by accused Narayan Diwakar in his revival order dated 3.2.2004 were incorrect and factually wrong as the winding up order was passed by Sh. Ashok Bakshi on 16.5.79 after giving sufficient opportunity to the society. The society was revived on the ground that winding up order was passed by the Dy. Registrar of the office of RCS who was not competent to pass such an order. Accused Narayan Diwakar further CBI Vs. Gokul Chand Aggarwal & Ors. Page 4/13 (Service Officers CGHS) recorded that no proper procedure was followed by the then Dy. Registrar for winding up of the said society. There is no explanation as to how accused Narayan Diwakar recorded such a note when the original files of the society were not available including the order of Dy. Registrar to wind up the society. The society had not conducted its audit since its inception in 197172 and this fact was also overlooked though it is a violation of Section 53 of the DCS Act. None of the accused enquired about any General Body Meeting (GBM) or the meeting of the Management Committee (MC) between 16.5.1979 to 29.6.2003.
5. Pursuant to the conspiracy, accused Narayan Diwakar appointed accused N.S. Khatri as Election Officer to conduct the election of the managing committee within two months. Accused N.S. Khatri in conspiracy with the other accused persons submitted a bogus and fictitious report stating therein that he had conducted the elections of the Managing Committee of the society in the office of RCS on 14.3.04. On 29.1.04, prior to the passing of the revival order, accused Gokul Chand approached accused P.K. Thirvani, the then Sr. Auditor in the office of RCS, for getting the audit of the society conducted. Accused Gokul Chand signed as Mahavir Prasad on the form CBI Vs. Gokul Chand Aggarwal & Ors. Page 5/13 (Service Officers CGHS) before accused P.K. Thirvani and affixed stamp of the Secretary, Service Officers CGHS. Accused P.K. Thirvani prepared a fake audit report without seeing any original document related to the society.
6. GEQD opinion established that accused Gokul Chand forged some of the affidavits including the application for revival and the signatures of non existent office bearers of the society on various documents. As per GEQD opinion, accused P.K. Thirwani and Gokul Chand Agarwal had signed as office bearers of the society on various official documents related to service officers CGHS.
7. Sanction for prosecution of accused U.S. Bhatnagar, N.S. Khatri, P.K. Thirwani, G.S. Bisht and Sunanda as required u/s 19 of The Prevention of Corruption Act (hereinafter referred to as P.C.Act) has been obtained from the competent authority and annexed to the chargesheet as they are all public servants. Accused Naryan Diwakar, Faiz Mohd and Man Singh are no longer public servants and, therefore, no sanction for the prosecution is required.
8. I have heard Accused Narayan Diwakar, Sh. S.K. Bhatnagar Ld. Counsel for accused No. 2, 3, 7 & 8, Sh. R. P. Shukla Ld. Counsel for accused no. 4 & 9. I have also CBI Vs. Gokul Chand Aggarwal & Ors. Page 6/13 (Service Officers CGHS) gone through the written submissions filed on behalf of accused No.1, 2 & 6.
9. Accused No.5 Man Singh expired after the filing of chargesheet and, therefore, case against him stood abated.
10. Accused Narayan Diwakar appeared in person and has filed written submissions. According to him he has done nothing wrong while discharging his functions as RCS. RCS does not deal with land as the same is the subject matter of DDA who allots the land in accordance with the Rules framed under DDA Act, 1957 and Disposal of Development Nazul Land Rules, 1981. CBI has committed various illegalities while investigating the matter. He placed reliance upon the judgment titled as Dr. R.R.Kishore v. CBI 2006 VIII AD (Delhi) 545, wherein it was held that if illegal investigation is brought to the notice of the Trial Court at the initial stage, then the court ought not to proceed with the trial but should direct reinvestigation in order to cure the defect in the investigation. Accused Narayan Diwakar has pointed out following illegalities:
(a) Consent of the State was not taken as required U/s 6 of the DSPE Act, 1946.
(b) Absence of notification U/s 3 of DSPE Act.
(c) Registration of case under Section IPC instead of DCS CBI Vs. Gokul Chand Aggarwal & Ors. Page 7/13 (Service Officers CGHS) Act which is a Special Act.
11. The contention of accused Narayan Diwakar that the consent of State was not taken is misconceived in the facts and circumstances of the present case. The investigation was referred to CBI in the present matter by the High Court. Once the order for investigation of a case to CBI is passed by the High Court under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a mater for investigation to CBI. Though not referred to and relied upon, for taking view I am supported with the order dated 17.9.2007 passed by Hon'ble Mr. Justice Sh. S.N.Dhingra in Criminal MC No. 2784 of 2007.
12. It is contended that the noncompliance of Sec.3 of DSPE Act, 1946 vitiates the entire investigation. As per Sec. 3 of DSPE Act, 1946, the Central Government makes notification in the official gazette to specify the offences or classes of offences which are to be investigated by Delhi Special Police Establishment. It is contended that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government u/s 3 of the Act and such offences as notified are mentioned in DSPE Act, 1946. The offences covered by Sec. 3 of the said Act do not include the offences CBI Vs. Gokul Chand Aggarwal & Ors. Page 8/13 (Service Officers CGHS) under the Cooperative laws. Thus, the investigation done by the CBI for the cooperative societies is in violation of Sec.3 as it has no jurisdiction to conduct the investigation. In my opinion the Offences mentioned in the chargesheet are all notified offences U/s 3 of the DSPE Act and, therefore, no fresh notification is/was necessary.
13. All the accused have raised the contention that the DCS Act, is a complete self contained statue and, therefore, provisions of the Indian Penal Code cannot be invoked. The DCS Act, 1972 provides for a well defined system of addressing the issues relating to various private cooperative societies and it contains the provisions of fine, appeal, punishment and, as such, the application of provisions of the IPC by the CBI is wholly illegal. It is further contended that the matter is covered under the provision of Section 82(3) of DCS Act which completely debars the prosecution without giving the opportunity of being heard as well as previous sanction of RCS. The offence alleged to have been committed by the accused is punishable under the provisions of Special law and, therefore, the provisions of Indian penal Code, being general law, cannot be invoked. In respect of this contention, accused have relied upon judgments State of Maharashtra Vs. Laljit Rajshi Shah & Ors. AIR 2000 CBI Vs. Gokul Chand Aggarwal & Ors. Page 9/13 (Service Officers CGHS) SC 937; and Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd. & Ors. 2007(5) SCALE 366.
14. On the other hand, it is contended by Ld. PP Sh.
Akhilesh for CBI that provisions under DCS Act and DCS Rules are for administration of Cooperative Group Housing Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. According to him, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law.
15. I have gone through the judgments cited by the accused.
The cited judgments are not applicable to the facts of the present case. Wherever the Legislature in its wisdom deemed fit, they have restricted/prohibited the applicability of other Acts which could be seen from the provision of section 91 of DCS Act, 1972 which provides "The provisions of the Companies Act, 1956 shall not apply to Cooperative Societies Act". But such restriction/prohibition is nowhere mentioned in DCS Act, 1972 debarring the applicability of IPC or PC Act under which the accused persons have been chargesheeted. Thus, DCS Act does not impose any bar to take resort to the provisions of General Criminal Laws.
16. Accused Narayan Diwakar has relied upon judgment CBI Vs. Gokul Chand Aggarwal & Ors. Page 10/13 (Service Officers CGHS) Vikas CGHS Vs. RCS, CWP No. 1767 of 1986 decided on 2.11.1986 by the High Court of Delhi. The said judgment is not relevant to the facts of the present case. After the judgment of Vikas CGHS (Supra), a direction was passed by the High Court of Delhi in CWP No. 10667/04 on 2.8.2005 directing CBI to investigate the present matter and other similar matters where group housing societies were fraudulently got revived. If there was no need of passing an order for setting aside the liquidation proceedings of service officers CGHS, then there was no necessity for accused Narayan Diwakar to pass an order in the year 2003 for revival of the society. Accused Narayan Diwakar, therefore, cannot claim the applicability of the judgment Vikas CGHS (Supra) to the present controversy.
17. According to accused Narayan Diwakar, he was discharging his quasi judicial functions and as such he cannot be prosecuted. According to him, under the provisions of Section 40 & 41 of the DCS Act, there is a presumption of genuineness of the documents filed in support of the application moved for revival of the society. In my opinion, the facts and circumstances of the present case primafacie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. The society which was not in existence in the name CBI Vs. Gokul Chand Aggarwal & Ors. Page 11/13 (Service Officers CGHS) of service officers CGHS was revived in the garb of being under liquidation on the strength of order dated 16.5.79. Bogus documents were used. The modus operandi of reconstruction of documents was adopted. The accused Narayan Diwakar followed the procedure with a view to give colour to his acts. Following procedure prescribed under the Act would not validate his acts when they were actuated with conspiracy to cheat the RCS and office of DDA.
18. It has been further contended on behalf of the accused persons that no land was allotted to the society and under these circumstances it can not be said that DDA was cheated. Narayan Diwakar and his subordinate staff/coaccused were bound to protect the interest of office of RCS. They in furtherance of the conspiracy entered into between them, cheated the institution of office of Registrar Cooperative Societies by doing act of revival of the society and they forwarded the letter to DDA for allotment of land. Therefore, primafacie case of cheating is also made out against the accused persons.
19. Sh. R.P. Shukla, Ld. Counsel for accused Nos. 4 & 9 has relied upon judgment P. Vijayan v. State of Kerala 2010(2) SCC
398. There is no dispute regarding the legal proposition laid down in the said judgment. It is settled law if two views are CBI Vs. Gokul Chand Aggarwal & Ors. Page 12/13 (Service Officers CGHS) possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Thus, the aforesaid judgment is of no help to the accused persons as from the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons of having entered into a criminal conspiracy to cheat the office of RCS and DDA.
20. In view of the above discussion, I am of the opinion that primafacie case is made out against accused Gokul Chand Aggarwal (A1), accused U.S. Bhatnagar (A2), accused Faiz Mohd.(A3), accused N.S. Khatri (A4), accused Narayan Diwakar (A6), accused P.K. Thirwani (A7), accused Sunanda Malik (A8), accused G.S. Bisht (A9) for commission of offences U/s 120B r/w Sec. 420/468/471 IPC and Section 13(2) r/w 13(1) (d) of PC Act, 1988. Accused Gokul Chand Aggarwal(A1) and accused P.K. Thirwani (A7) are also liable to be charged u/s 120(B) r/w Sec. 419 IPC.
Announced in the open court on dated 17.8.2011.
(Praveen Kumar) Special Judge, PC Act, CBIIII, Rohini Courts, Delhi CBI Vs. Gokul Chand Aggarwal & Ors. Page 13/13 (Service Officers CGHS) CBI Vs. Gokul Chand Aggarwal & Ors. Page 14/13 (Service Officers CGHS)