Delhi District Court
Cbi vs . Narayan Diwakar Etc. (Ram Nagar Cghs ... on 23 October, 2021
CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.)
IN THE COURT OF VIRENDER BHAT:
ADDL. SESSIONS JUDGE-03:
(NORTH-EAST): KARKARDOOMA DISTRICT COURTS:
DELHI
IN THE MATTER OF:
CBI No. : 192/2019
CNR No. : DLCT11-000806-2019
FIR No. : RC. BD1/2005/E/0016/BS&FC/New Delhi.
U/S : 120B IPC r/w Sections 420/468/471 IPC
and Substantive Offences u/s 420/511, 468,
471 IPC and
Section 13 (2) r/w Section 13 (1) (d) of PC
Act, 1988 & Substantive Offences u/s 15
r/w Section 13 (1) (d) of PC Act, 1988.
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION
NEW DELHI
VERSUS
1. Narayan Diwakar
S/o Late Sh. Chhati Lal
R/o G-30, Masjid Moth,
Greater Kailash Part-II,
New Delhi-110048.
CBI Case No. 192/2019 Page No. 1 of 75
CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.)
Also at:-
Village and PO-Baraghania,
District-Sita Marhi,
Bihar. ............................................................(A-1)
2. Jitender Singh Sharma
S/o Late Sh. Niranjan Singh
R/o 1073/A-3,Ward No. 1,
Mehrauli, New Delhi-110030. .....................(A-2)
(Since expired. Proceedings against him stand abated vide
order dated 26.07.2021).
3. Raman Kumar Verma
S/o Late Sh. J.N. Verma
R/o F-444, Karampura,
New Delhi. .....................................................(A-3)
4. Uday Shankar Bhatnagar
S/o Late Sh. Shiv Shankar Bhatnagar
R/o B-479, Delhi Administration Flats,
Timar Pur, New Delhi-110054.
Also at:-
Flat No. 14, Khasra No. 844,
Gali No. 2, Maurya Enclave,
Sant Nagar, Burari,
Delhi-110084. ................................................(A-4)
5. Prahalad Kumar Thirwani
S/o Late Sh. Moti Ram Thirwani
R/o 348E, Pocket-2,
Mayur Vihar, Phase-I,
New Delhi-110091. ..........................................(A-5)
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CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.)
6. Raj Kumar Samuel
S/o Sh. Peter Samuel
R/o H. No. 263, Sector-12,
R.K. Puram, New Delhi.
Also at:-
B-133, Freedom Fighter Colony,
Neb Sarai, New Delhi. ...................................(A-6)
7. Ashutosh Pant
S/o Sh. M.C. Pant
R/o B-160, Gali No. 2,
Sadatpur Colony, Karawal Nagar Road,
Delhi-110094.
Also at:-
A-1303, Plot No. 9A,
Exotica Elegance, Ahinsha Khand-II,
Indirapuram, Ghaziabad,
UP. ...................................................................(A-7)
Date of Institution : 22.12.2006
Date of judgement reserved on : 06.10.2021
Date of pronouncement of judgement : 23.10.2021
J U D G E M E N T:-
1. The above named seven accused have been charge- sheeted by the prosecution Central Bureau of Investigation (the investigating as well as prosecuting agency in this case) for having committing offence of conspiracy u/s 120B IPC r/w Sections 420/468/471 IPC and Section 13 (2) r/w Section 13 (1) CBI Case No. 192/2019 Page No. 3 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.)
(d) of PC Act, 1988 as well as substantive offences thereof.
2. It is alleged that in furtherance of a criminal conspiracy hatched by all the seven accused during the period 2003-2004, the defunct Society namely Ram Nagar CGHS Ltd was revived on the basis of forged/fictitious documents whereafter its bogus membership list was forwarded to DDA for allotment of land to the Society.
3. Accused Narayan Diwakar was posted as Registrar Cooperative Societies during the above period, accused J.S. Sharma was posted as Assistant Registrar, accused Raman Kumar Verma was posted as Dealing Assistant/UDC, accused U.S. Bhatnagar was posted as Grade-III employee and accused P.K. Thirwani was posted as Sr. Auditor in the said office. The remaining two accused namely Raj Kumar Samuel and Ashutosh Pant are private persons.
4. The case of the prosecution is that in furtherance to the aforesaid conspiracy, a letter dated 01.11.2003 bearing forged signatures of one Mr. Aditya in the capacity of President of the Society was submitted in the RCS office seeking cancellation of the winding up order dated 13.11.1979 and approval of its list of members. The letter was put up by accused Raman Kumar Verma vide his note dated 12.11.2003 mentioning therein that the original file of the Society was not traceable and sought approval for issuance of circular to all zones/branches of the RCS office for tracing the original file. The note was approved by the CBI Case No. 192/2019 Page No. 4 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) Assistant Registrar J.S. Sharma without raising any question as to how the file went missing and who was responsible for the same. It is alleged that they hurriedly accepted the contention of the author of the said letter to be correct despite the fact that this sudden communication was received in the RCS office on behalf of the Society which was lying defunct for about 24 years and that no records were available in the RCS office pertaining to the said Society.
5. Accused Raman Kumar Verma is stated to have prepared a note dated 27.11.2003 proposing therein to reconstruct the missing file of the Society with the help of the copies of Registration Certificate, Bye-laws, Audit Reports etc. available with the President/Secretary of the Society. The proposal was approved by accused J.S. Sharma (AR) and Narayan Diwakar (Registrar) without questioning the genuineness of the request for revival of the Society. Accused Narayan Diwakar is stated to have appointed accused U.S. Bhatnagar as Inspecting Officer to examine and verify the records of the Society. It is alleged that accused U.S. Bhatnagar submitted a false inspection report stating therein that he visited the office of the Society where he met its President Mr. Aditya Vikram and verified the records. It is alleged that accused U.S. Bhatnagar has falsely mentioned in the said report that the registered office of the Society was at 14-B, Satya Niketan, New Delhi whereas no office of any Society existed at the said address at any point of time. Further, the annexures to the said report has been found to be in the handwriting of accused Ashutosh Pant, as CBI Case No. 192/2019 Page No. 5 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) per the opinion of GEQD.
6. Thereafter, accused Raman Kumar Verma put up the note dated 23.01.2004 wherein he mentioned that the Inspecting Officer has obtained the copies of unaudited accounts of the Society since 30.06.1988, minutes of AGM dated 16.02.1972, list of members of the Society, Minutes of Managing Committee Meetings dated 12.07.1979, Minutes of Special GBM dated 21.07.1979 and the records related to the last election/AGM held on 15.09.2003, Registration Certificate, Bye-laws etc. which he placed in the file. The file was then placed before the Registrar Narayan Diwakar on the same day i.e. 23.01.2004. Thereafter, a letter was sent by the Reader to the Registrar on 27.01.2004 to the President/Secretary of the Society with the directions to appear in the court of Registrar Cooperative Societies on 10.02.2004 alongwith the original records of the Society.
7. However, the file was called by accused Narayan Diwakar on 03.02.2004 without assigning any reason on which date he dishonestly and fraudulently showed the presence of Mr. Ashok Kumar as Secretary of the Society and passed an order directing accused J.S. Sharma (AR) to conduct the spot verification of members of the Society at random and submit the report on or before the next date of hearing i.e. 05.02.2004.
8. It is alleged that accused Raman Kumar Verma and J.S. Sharma dishonestly and fraudulently mentioned in the subsequent noted dated 05.02.2004 that the President/Secretary CBI Case No. 192/2019 Page No. 6 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) produced the original records of the Society which were verified by him. However, he maintained a mischievous salience about the fact as to whether or not was the spot verification of members at random done as ordered by the Registrar on 03.02.2004. The note was approved by accused J.S. Sharma who dishonestly mentioned thereupon that the spot verification of some members at random has been made whereas no such verification had ever been conducted by any official of the RCS office. On the same very day i.e. 05.02.2004, accused Narayan Diwakar passed a detailed order pointing out imaginary and baseless lacunas in the winding up order dated 13.11.1979 and ultimately vide his order dated 06.02.2004, he cancelled the said winding up order and directed revival of the Society.
9. As per the prosecution case, the false/fictitious records of the Society were prepared by accused Ashutosh Pant and same were submitted in the RCS office by accused Raj Kumar Samuel and both of them were instrumental in fraudulent revival of the Society.
10. In pursuance to the conditions imposted by the Registrar in the revival order dated 06.02.2004, accused J.S. Sharma appointed accused P.K. Thirwani to conduct the audit of the Society. Accused P.K. Thirwani is alleged to have submitted a false audit report in respect of the Society for the period 1971-72 to 2002-03 which was also in violation of the Rules laid down by the RCS office. It is alleged that accused P.K. Thirwani has mentioned in his report that the Society has been maintaining its CBI Case No. 192/2019 Page No. 7 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) bank account with Delhi State Cooperative Bank, Daryaganj Branch, New Delhi whereas no account of the Society was found to have been opened in the said bank.
11. It is alleged that Mr. Sanjeev Mehendiratta, JAO in the office of RCS was appointed as Election Officer by accused Narayan Diwakar to conduct the election to the Managing Committee of the Society but his report is not available in the RCS file. Investigations reveal that Mr. Sanjeev Mehendiratta was pressurised by accused J.S. Sharma and Raj Kumar Samuel to give false election report. Accused J.S. Sharma had also threatened him in this regard and when he reported the matter to accused Narayan Diwakar, no action was taken on his complaint.
12. It is alleged that during the course of investigation, 78 persons out of 129 members of the Society as per the list which was forwarded to DDA by the Assistant Registrar Yogi Raj vide his letter dated 25.03.2004, could be traced and the all denied having become members of the Society. They have also denied the execution of affidavits which were available in their names in the RCS file. 11 members could not be traced as their addresses were found to be non existing. Thus, a false list of members was allegedly submitted by accused Raj Kumar Samuel in the RCS office which was approved and forwarded to DDA for allotment of land to the Society. It is alleged that the affidavits of all 129 members of the Society which have been filed in the RCS office were purportedly attested by Sh. Sandeep Sharma (Oath Commissioner) but he has denied his seal and signatures on these CBI Case No. 192/2019 Page No. 8 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) affidavits stating that he was not an Oath Commissioner in the month of February, 2004 when these affidavits are purportedly attested in his name.
13. On the basis of these facts and circumstances which had come out during the course of investigation, charge-sheet was filed before the concerned Court. Sanction for prosecution of accused public servants J.S. Sharma, Raman Kumar Verma, U.S. Bhatnagar and P.K. Thirwani was duly obtained and enclosed with the charge-sheet. Since, accused Narayan Diwakar had retired from services before filing of the charge-sheet, no requirement was found to obtain sanction for his prosecution.
14. In pursuance to the order on charge dated 22.05.2012, charges were framed against all the seven accused on 19.07.2012 as under:-
(i) Under Section 120B IPC r/w Sections 420/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 against all the seven accused.
(ii) Under Section 15 r/w Section 13 (1) (d) of PC Act, 1988 against A-1 Narayan Diwakar, A-2 Jitender Singh Sharma, A-3 Raman Kumar Verma, A-4 Uday Shankar Bhatnagar and A-5 Prahlad Kumar Thirwani.
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(iii) Under Section 468 IPC and 471 IPC against A-4 Uday Shankar Bhatnagar and A-5 Prahlad Kumar Thirwani.
(iv) Under Section 420 IPC and 471 IPC against A-6 Raj Kumar Samuel. (v) Under Section 468 IPC against A-7 Ashutosh Pant.
15. All the accused abjured their guilt and claimed false implication. Accordingly, prosecution was called upon to lead its evidence to substantiate the charges against the accused. The prosecution has examined total 109 witnesses to bring home the guilt of accused.
16. The entire incriminating evidence which had come on record, was put to the accused during their examination u/s 313 Cr. P.C which they denied and claimed innocence.
17. Accused P.K. Thirwani and Raman Kumar Verma have examined one witness each in their defence who are DW-1 and DW-2 respectively. Accused Raj Kumar Samuel entered into the witness box himself as DW-3 in his defence. He also examined one more witness DW-5 in his defence. Accused Jitender Singh Sharma also examine one witness DW-4. The remaining accused chose not to lead any evidence in their defence.
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18. Thereafter, accused J.S. Sharma expired and proceedings against him stand abated vide order dated 26.07.2021.
19. Ld. Public Prosecutor as well as Ld. Defence counsels were heard in detail on various dates. They have taken me through the entire oral as well as documentary evidence on record. Written submissions filed on behalf of accused Raman Kumar Verma and Ashutosh Pant have also been perused.
20. Since, the prosecution case, in nutshell, is that in furtherance to their criminal conspiracy hatched by all the seven accused during the period 2003-2004, the defunct Society namely Ram Nagar CGHS Ltd. (hereinafter referred to as "the Society") was revived on behalf of forged/fictitious documents whereafter its bogus membership list was forwarded to DDA for allotment of land to it, it is found necessary to examine at first as to whether or not the documents submitted in RCS office in support of the request for revival of the Society, were fictitious/forged.
21. Ex.PW4/A is the membership list of the Society having 129 names in it, which were forwarded from RCS to DDA for allotment of land to the Society. PW-96 had collected the said list alongwith membership list of various other Cooperative Group Housing Societies from DDA, which had been forwarded to DDA for allotment of land to these Societies. He had handed over the said list to the IO of this case vide memo CBI Case No. 192/2019 Page No. 11 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) dated 10.08.2005 Ex.PW96/1. 62 persons from amongst the members of the Society whose names are mentioned in the said list Ex.PW4/A, have been examined as witnesses in this case. These are PW-5 (Membership No. 108), PW-6 (Membership No.
120), PW-7 (Membership No. 109), PW-17, PW-21 (Membership No. 129), PW-22 (Membership No. 125), PW-24 (Membership No. 110), PW-25 (Membership No. 118), PW-26 (Membership No. 112), PW-27 (Membership No. 106), PW-28 (Membership No. 114), PW-29 (Membership No. 113), PW-30 (Membership No. 116), PW-31 (Membership No. 88), PW-32 (Membership No. 87), PW-33 (Membership No. 90), PW-34 (Membership No. 121), PW-35, PW-36, PW-37, PW-38, PW-39, PW-40, PW-41, PW-42, PW-43, PW-45, PW-46, PW-48, PW-50, PW-51, PW-60, PW-61, PW-62 (Membership No. 8), PW-63 (Membership No. 12), PW-64 (Membership No. 23), PW-65 (Membership No. 49), PW-66 (Membership No. 95), PW-67 (Membership No. 77), PW-68 (Membership No. 58), PW69 (Membership No. 56), PW-70, PW-71, PW-72, PW-73, PW-74, PW-75, PW-76, PW-77, PW-78, PW-79, PW-80, PW-81, PW-82, PW-83, PW-84, PW-89, PW-90, PW-98 (Membership No. 40), PW-99 (Membership No. 5), PW-101 (Membership No. 3) and PW-102 (Membership No. 89). All of them have denied having taken membership of the Society at any point of time. They have denied that the membership application forms as well as the affidavits dated 04.02.2004 in their respective names bear their signatures. What is more intriguing is that 25 of these purported members of the Society were either not born or infants or below 10 years or below 18 years at the time when they are shown to CBI Case No. 192/2019 Page No. 12 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) have taken membership of the Society. PW-25, PW-26, PW-28, PW-33 and PW-73 are shown to have taken membership of the Society in the year 1973 as per the membership application forms in their respective names as well as entries made in the membership register of the Society but as per their deposition they were born in the year 1975, 1982, 1980, 1976 and 1974 respectively. PW-51, PW-60, PW-70, PW-71, PW-72, PW-75, PW-82 and PW-90 were infants i.e. less than 5 years of age (as per their testimony before this Court) in the year 1973-74 when they are stated to have become members of the Society. PW-31, PW-32, PW-62, PW-64, PW-80, PW-84 and PW-89 were less than 10 years of age (as per their deposition before this Court) in the year 1973-74 when they are shown to have become members of the Society. PW-41, PW-50, PW-61, PW-63 and PW-81 were above 10 years but less than 18 years of age, as per their deposition before this Court, during the year 1973-74 when they have purportedly been admitted to the membership of the Society. It is important to note here that none of these witnesses have been cross-examined on behalf of any of the accused and thus their deposition on these aspects have remained unassailed.
22. It is, thus, quite evident that almost entire membership list of the Society, the membership application forms in the names of majority of members as well as the membership register of the Society have been forged/manipulated in the year 2003 to falsely represent in the RCS office that the Society exists and is being run properly and to create a ground for its revival. Even the affidavits dated CBI Case No. 192/2019 Page No. 13 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) 04.02.2004 in the names of the above noted members have been forged and submitted in the RCS office to support the case of the Society for its revival. There is mention of these affidavits in the note dated 05.02.2004 in the Noting File Ex.PW16/C. As already stated hereinabove, all these 62 witnesses have denied their signatures on the affidavits in their names stating that there was no reason or occasion for them to execute any such affidavit as they had never taken membership of the Society. Apart from the deposition of all these witnesses, it is also to be noted that these affidavits have purportedly been attested by Oath Commissioner Sh. Sandeep Sharma. However, Sh. Sandeep Sharma has appeared as PW-12 and has denied that he had attested any such affidavits. He has denied that the seal and signature of Oath Commissioner appearing on these 129 affidavits Ex.PW12/A is his seal and signatures. He also deposed that he had ceased to be Oath Commissioner with effect from the year 2002 and therefore, he could not have attested these affidavits in the year 2004. It is, thus, manifest that the seal and signature of the Oath Commissioner also has been forged on all these 129 affidavits in the names of 129 members of the Society whose names are mentioned in the Membership List Ex.PW4/A.
23. Considering the testimony of above noted witnesses, no doubt can be entertained with regards to the fact that the entire records of the Society had been forged in the year 2003-2004 in order to seek its revival after a gap of 24 years since the date when it was put under liquidation. The membership list contains the names of the persons who were either not born or infants or CBI Case No. 192/2019 Page No. 14 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) minors during the year 1973-74 when they are stated to have been inducted as members of the Society. The seal and signature of Oath Commissioner on the affidavits in the names of all 129 members of the Society has been forged. The membership list also contains the names of certain persons who were either not found residing at the given addresses or the addresses mentioned against their names were found to be non existent/incomplete. This is evident from the deposition of Postmen who have been examined as PW-1, PW-2, PW-3, PW-4, PW-8, PW-9, PW-10 and PW-11. Therefore, there is no escape from the conclusion that the revival of the Society had been sought on the basis of totally forged and fictitious documents.
24. The crucial question which now arises for consideration is whether the forgery in the records of the society was done in pursuance to any conspiracy as alleged by the prosecution and if so who were the conspirators and who is the actual imposter?
25. Sections 120 A and 120 B of the Indian Penal Code make conspiracy a substantive offence and renders the mere agreement to commit an offence punishable. The elements of a criminal conspiracy have been stated to be :-
(a) an object to be accomplished,
(b) a plan or a scheme embodying
means to accomplish that object,
(c) an agreement or understanding
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CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement or by any effectual means, and
(d) in the jurisdiction where the statute required an overt act.
26. The offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of the two or more to do an unlawful act by unlawful means. The essential ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved by direct evident or by circumstantial evidence or by both.
27. Like most crimes, conspiracy also requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the acts, and the intention to achieve the unlawful object of that agreement constitutes the required mental state. To convict a person for the offence of conspiracy, the CBI Case No. 192/2019 Page No. 16 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy. A major problem arises in connection with the requirement of an agreement in determining the scope of a conspiracy - who are the parties and what are their objectives. This determination is critical, since it defines the potential liability of each accused.
28. Where the factum of conspiracy is sought to be inferred from the circumstances, the prosecution has to show that the circumstances give arise to a conclusive and irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirator for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. [See State Vs. Nalini (1999) 5 SCC 253, Yakub Razak Menon Vs. State of Maharashtra (2013) 13 SCC 1, Isher Singh Vs. State of A.P. (2004) 11 SCC 585, State (NCT of Delhi) Vs. Navjot Sandhu (2005) 11 SCC 600, State of Karnataka Vs. J. Jayalalitha (2017) 6 SCC 263, Firozuddin Basheeruddin Vs. State of Kerala (2001) 7 SCC 596].
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29. In this case, prosecution has failed to lead any evidence to show as to who was the actual imposter who had forged the records of the Society in the year 2003-04 before submitting the same in the RCS office. Other than the opinion of GEQD (PW-97), according to which the signature of one of the members namely Krishna Dahiya on the affidavit in her name at point Q-1089 have been appended by accused Ashutosh Pant, there is no evidence on record to establish as to who had prepared the false membership applications, affidavits, proceedings registers etc. and who had forged the signatures of several persons, whose deposition has been noted hereinabove, on these documents. Further, the evidence led by the prosecution does not provide any clue about the identity of the person/persons who had initially hatched the conspiracy in this case at whose behest was this entire forgery/manipulation committed in the records of the Society. In other words, the brain behind the entire conspiracy has remained to be identified during the investigation of the case as well as during the trial of the case.
30. It was vehemently argued by the Ld. Public Prosecutor that accused Raj Kumar Samuel was the main conspirator in this case who had submitted the forged documents of the Society in the RCS office with the object to seek its revival. On this aspect, he has referred to the testimonies of PW- 58 and PW-59. It is pertinent to scrutinize the deposition of these two witnesses in detail in order to find out as to whether or not was this accused Raj Kumar Samuel involved in the conspiracy.
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31. PW-58 is Mr. Sanjeev Mendiratta, who had been appointed as Election Officer to conduct the election of the office bearers of the Society. He had been appointed by the Registrar Narayan Diwakar vide order dated 06.02.2004 at the time of reviving the Society. He has deposed that upon receipt of the said order, he prepared a letter to be sent to the President/Secretary of the Society but before he could dispatch the same, a person namely Raj Kumar appeared before him saying that he is the In- charge of the Society Ram Nagar CGHS Ltd. He told Raj Kumar to furnish the documents of the Society but no such documents were supply by Raj Kumar. He sensed that there is some foul play and therefore did not proceed further. He has further deposed that thereafter accused J.S. Sharma (AR) came to him one day and asked him why he is not conducting the election of the Society. J.S. Sharma pressurised him to conduct the election of the Society. He complained against J.S. Sharma to the Registrar Narayan Diwakar who told him that he cannot do anything in this matter. He further deposed that thereafter he prepared a false election report without conducting the actual election of the Society and proved the same as Ex.PW58/A. He had handed over the said report to the IO during the investigation of the case which was seized vide memo Ex.PW58/B. He identified accused Raj Kumar to be person who had approached him on behalf of the Society.
32. In reply to certain Court questions, PW-58 deposed that the false election report was prepared by him upon being pressurized by J.S. Sharma. He stated that the particulars of the CBI Case No. 192/2019 Page No. 19 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) Society had been given to him by Raj Kumar.
33. In the cross-examination conducted by accused Raj Kumar Samuel, he denied the suggestion that he had demanded a sum of Rs. 15,000/- from him (accused Raj Kumar) in lieu of conducting the election of the Society; that accused Raj Kumar told him that he has no concern with the Society and he cannot pay Rs. 15,000/- without consulting the office bearers of the Society; that he had threatened accused Raj Kumar that in case he did not pay Rs. 15,000/-, he shall prepare incorrect report; and that he had taken a sum of Rs. 3,000/- from accused Raj Kumar towards the expenses for conducting the elections. He deposed that he had not mentioned in his statement to CBI that he had taken Rs. 3,000/- from accused Raj Kumar as expenses for conducting the elections of the Society. He was confronted with his statement u/s 161 Cr. P.C wherein it is so mentioned from point X to X at Page No. 3.
34. In the cross-examination conducted on behalf of other accused, PW-58 admitted that the report Ex.PW58/A does not bear his signature and also does not bear any seal or dispatch number of the RCS office. He reiterated that he had personally handed over the entire file containing the report Ex.PW58/A to the IO.
35. What can be gathered from the above noted testimony of PW-58 is that accused Raj Kumar had approached him saying that he is the In-charge of the Society, furnished him CBI Case No. 192/2019 Page No. 20 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) the particulars of the Society and also paid him Rs. 3,000/- towards the expenses for conducting the elections.
36. According to PW-59, he is into the business of properties and was known to Sh. Sewa Dass, Dy. Commissioner of Police in Delhi in the year 2003. He deposed that one day he received a call from Sh. Sewa Dass asking him to procure the membership application form from any Cooperative Group Housing Societies for him as he does not have his own place of residence in Delhi. Sh. Sewa Dass further told him that he has talked to Narayan Diwakar (Registrar Cooperative Societies) and asked him to meet Narayan Diwakar in his office. Accordingly, as deposed by this witness, he met Narayan Diwakar in his office who told him to see Jitender Sharma who was working in the same office. He met Jitender Sharma who referred him to Mr. Raj Kumar who was also sitting there at that time. He identified accused Raj Kumar to be the person who was sitting there at that time. He further deposed that Raj Kumar handed over a form to him saying that he was floating a new Society. Raj Kumar asked him to become a member of that Society and also to tell his relatives/friends to become a member of that Society.
37. PW-59 further deposed that he sent the form to Sh. Sewa Dass and also gave a list of 15 to 20 persons including himself to accused Raj Kumar to be inducted as the members of the Society which he was floating. He also paid Raj Kumar a total sum of Rs. 7 lacs to Rs. 8 lacs in cash for the said purpose on three or four occasions. Thereafter, accused Raj Kumar CBI Case No. 192/2019 Page No. 21 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) handed over to him a bunch of papers with regards to their membership in the Society. He showed those papers to M.M. Sharma, Advocate who told him that the papers are not proper or genuine. There was an affidavit which was required to be sent by all of them mentioning therein that they do not have own any residential house in Delhi but since all of them owned residential house in Delhi, he contacted Raj Kumar and apprised about these facts who told him that their membership would be cancelled and money paid by them would be refunded to them. Accordingly, the entire payment made by him was refunded to him.
38. He has further deposed as under:-
"Meanwhile, one of my friends namely Channi met me and told me that his friend Rakesh Aggarwal is desirous of investing money in the housing societies. Accordingly, I introduced Rakesh Aggarwal to accused Raj who was dealing in societies. Thereafter, Rakesh Aggarwal purchased a society namely Janhit CGHS from accused Raj for about Rs. 70 lacs to Rs. 80 lacs. Rakesh Aggarwal inducted me also as a member of this society. However, I pointed out him to also that I already owned three residential houses in Delhi and hence, he made me to resign from the membership of the said society.
In the year 2003, I was residing in CBI Case No. 192/2019 Page No. 22 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) Flat No. 14, Satya Niketan, New Delhi. Accused Raj had told me that he intends to show my said flat as the office of a society. I agreed but told him that no illegal work should be done in my flat. However, he did not show my flat as office of any society.
In the year 2005, I had received a notice from the office of Registrar Cooperative Societies. In fact, all the persons whose names I had given to accused Raj for making members of the society to be floated by him, received such a notice from RCS office. I immediately contacted accused Raj and asked him why we have received the notices from RCS office when our membership had already been cancelled by him. He again told me that he has cancelled our membership. However, I became very angry and started quarreling with him on this issue. Thereupon he told me that he alongwith another person namely Pant are dealing in defunct societies and get those societies revived. But he did not answer my query as to why did we receive notice from RCS office.
One day in the year 2006, I received a telephonic call from CBI office asking me CBI Case No. 192/2019 Page No. 23 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) to appear there. I also received a summons from the CBI office in this regard. Accordingly, I visited CBI office. I was asked about my membership in Ram Nagar CGHS. I told them that I had been made member of Janhit CGHS and I do not know anything about Ram Nagar CGHS. CBI official were not ready to believe me and threatened to arrest me. They further told me to help them in tracing accused Raj or otherwise I would be taken to be guilty. Therefore, I made efforts in tracing the whereabouts of accused Raj and succeeded in the same. I asked him as to why CBI has been calling me to their office when I was not a member of any society. He was willing to accompany me to the CBI office. Accordingly, we both reached the CBI office one day. CBI officials showed the documents regarding membership of myself and my other relatives/friends in Ram Nagar CGHS to accused Raj in my presence. I asked accused Raj as to how we have been made members of Ram Nagar CGHS. Thereupon he said that he had used our particulars in making us the members of Ram Nagar CGHS. He further told me that he had destroyed the application form CBI Case No. 192/2019 Page No. 24 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) which I had given to him and had filled up fresh forms in our names upon which he had himself appended the signatures in our names.
My statement was recorded in CBI office two or three times.
I have seen the list of members of the Ram Nagar CGHS from the Court record [D-6 from page No. 1 to 5 already Ex.PW4/A (colly.)]. The particulars of following members were given by me to accused Raj:-
1. Aditya Vikram Vaidya (membership No.
49),
2. Ch. Dalip Singh (membership No. 50),
3. Hukam Singh (membership No. 51),
4. L.C. Jain (membership No. 53),
5. Harminder (membership No. 54),
6. Jai Chand (membership No. 68),
7. Sudhir Tomar (membership No. 70),
8. Ram Naresh Tiwari (membership No.
71),
9. Sant Manchanda (membership No. 73),
10. Rajan Manchanda (membership No.
74),
11. Anil Sood (membership No. 75),
12. Smt. Neeta (membership No. 76),
13. Vijay Sangwan (membership No. 77), CBI Case No. 192/2019 Page No. 25 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) 14, Krishan Sangwan (membership No.
78),
15. Kehar Singh (membership No. 79),
16. Ravinder (membership No. 81),
17. Mood Chand (membership No. 94),
18. Suresh (membership No. 95),
19. Dhare (membership No. 96),
20. Banwari Lal (membership No. 97),
21. Rohit Jain (membership No. 102) and
22. Devender Solanki (membership No.
107).
The particulars of these persons were used by accused Raj for making them members of Ram Nagar CGHS without our consent."
39. In the cross-examination conducted by accused Raj Kumar, he has deposed as under:-
"It is wrong to suggest that the society Ram Nagar CGHS has actually been formed by me. It is correct that accused Raj Kumar Samuel used to come to meet me. (Vol. He used to meet me in connection with the making of members of the societies.) It is wrong to suggest that I had sent accused Raj Kumar to the office of RCS once or twice for making enquiries regarding the elections of Ram Nagar CBI Case No. 192/2019 Page No. 26 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) CGHS. It is wrong to suggest that I was involved in another society namely Brahma CGHS also. It is wrong to suggest that I was involved in the activities of M.V. Janhit CGHS also. It is correct that I had been made member of the said society. I do not know who was the President or Secretary or Treasurer of M.V. Janhit CGHS.
I had become member of Janhit CGHS in the year 2004 or 2005. It is wrong to suggest that I had sold the Ram Nagar CGHS Ltd to Vinod Verma for Rs. 50 lacs. (Vol. I do not know the person Vinod Verma.). It is wrong to suggest that the deal between myself and Vinod Verma took place in place of accused Raj Kumar. It is wrong to suggest that I had handed over the entire records of the society Ram Nagar CGHS to Vinod Verma after receiving Rs. 50 lacs from him.
I am an income tax payee. I have no documentary proof to show that I had paid Rs. 8 lacs to accused Raj Kumar. It is wrong to suggest that I, being a resourceful person, have taken the IO into confidence and thereby have been successful in taking out my name from the list of accused in this case. I do not know on account of the CBI Case No. 192/2019 Page No. 27 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) connivance between myself and the IO of this case, the telephones of myself and several CBI officers had been taped. It is wrong to suggest that the tape recorded conversations show that I had offered money to the IO/CBI officers for absolving myself in this case and for implicating falsely accused Raj Kumar in this case.
It is wrong to suggest that I had not traced the whereabouts of accused Raj Kumar and that he had himself on his own appeared in CBI office on receipt of the summons from CBI.
My friend Mr. Channi has already expired. Mr. Sewa Das has already retired from services and is at present staying in Saket. It is correct that I was an accused in a CBI case on the basis of phone taping. However, I have already been acquitted in that case. It is wrong to suggest that accused Raj Kumar was a friend of mine and was known to me prior to the year 2000. It is wrong to suggest that I used to give some petty works to him from time to time.
It is wrong to suggest that I have cooked up a false story in order to falsely implicated the accused Raj Kumar in this CBI Case No. 192/2019 Page No. 28 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) case. It is wrong to suggest that I have deposed falsely against him. It is wrong to suggest that no documents were given to me by accused Raj Kumar related to Ram Nagar CGHS Ltd."
40. Thus, as per the testimony of PW-59, it is accused Raj Kumar who had floated a new Society and had made him, his relatives and friends also members of that Society but later on their membership was cancelled and money paid by them was duly refunded to them. However, he has nowhere stated the name of the Society which accused Raj Kumar had floated and in which he alongwith his relatives/friends were inducted as members. According to him, accused Raj Kumar has misused the particulars of his 22 relatives/friends, whose names he has stated in his examination-in-chief noted hereinabove, for making them members of Ram Nagar CGHS Ltd. On this aspect, it is also apposite to reproduce the following portion of the cross- examination of the IO (PW-107) conducted by accused Ashutosh Pant:-
"Sh. Vijender Solanki had disclosed to me that he had agreed to purchase the said society. I cannot say from where did he come to know that the society had been revived fraudulently. I did not interrogate the Special Commissioner, Delhi Police Sh. Sewa Dass about whom Vijender Solanki had mentioned in his statement. I also did CBI Case No. 192/2019 Page No. 29 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) not interrogate M.M. Sharma, Advocate about whom mention was made by Vijender Solanki in his statement. I did not know whether M.M. Sharma, Advocate was involved in some other CBI cases related to Cooperative Group Housing Societies.
It is correct that investigation in all the CBI cases related to Cooperative Group Housing Societies was being supervised by DIG Sh. A.K. Malhotra. It is correct that I used to report about the outcome of my investigation to DIG Sh. A.K. Malhotra through the DIG of our branch from time to time. I never used to contact the branch headed by Sh. A.K. Malhotra for any purpose with regards to my investigation.
Whatever used to come out from the statements of witnesses which was material to the instant case, used to be noted by me in the case diary on daily basis. I might have confronted accused in this case with the witnesses and witnesses with the witnesses. It is correct that during the confrontation of Vijender Solanki and accused Raj, it has come out that the society Ram Nagar CGHS has been further transferred to Vinod Verma for certain amount. I had come to know that Vinod CBI Case No. 192/2019 Page No. 30 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) Verma is an accused in some CBI cases related to Cooperative Group Housing Societies. I do not know whether he is a witness also in some of such cases also. I knew Vinod Verma as he used to visit CBI office in connection with some other case. I had conducted search at the residence of Vinod Verma in connection with this case. I have made enquiries also from him in connection with this case. I had recorded his statement. His statement is not annexed with the charge-sheet as it was not found to be relevant in this case. It is correct that Vinod Verma had stated that he had sold the society Ram Nagar CGHS to Mr. Gupta (Gupta Properties). It is correct that Mr. Subhash Gupta of M/s Gupta Properties is an accused in some of CBI cases related to Cooperative Group Housing Societies. I have not obtained either specimen signatures or admitted signatures of Vinod Verma and Subhash Gupta. It had come to my knowledge during the investigation of this case that Vijender Solanki was trying to influence the investigation in this case. I do not know whether telephonic conversation between CBI officials and private persons had been recorded secretly by CBI. I do not CBI Case No. 192/2019 Page No. 31 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) know whether Vijender Solanki had tried to influence the investigation in other cases also and that FIRs were registered against him, CBI officials and private persons in those cases. He had approached me in this case through two Inspectors Sh. Yogender Kumar and Sh. Sehrawat. (Vol. A separate case was registered in this regard and they have been tried separately before a CBI Court)."
41. The cross-examination of PW-107 conducted on behalf of accused Raj Kumar is also relevant and is reproduced hereunder:-
"It is correct that Raj Kumar Samuel was not an accused named in the FIR. It is correct that no incriminating document has been seized from him. It is correct that neither he nor his family member was a member of Ram Nagar CGHS.
I cannot tell exact date and month when I had called accused Raj Kumar to join investigation in this case. It was probably in the month of April or May, 2006. It might be I had called him to join investigation in the month of June, 2006. It is correct that he had cooperated during the investigation of this case.CBI Case No. 192/2019 Page No. 32 of 75
CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) I had called Vijender Solanki in the month of February and March, 2006 to join the investigation of this case. I do not recollect as to by which mode had I called him i.e. whether by phone or by sending the notice. Vijender Solanki had himself told me in his statement that he had inducted various persons as members of the society. It is correct that he was a property dealer. It is correct that one day in the month of March, 2006, Vijender Solanki had left the CBI office without meeting me.
It is correct that Insp. Yogender had told me that Vijender Solanki is in collusion with Sr. CBI officers and has paid huge amounts to them. I had complained against the said conduct of Insp. Yogender, Insp. Sehrawat and Vijender solanki. I have not mentioned about this fact in my case diary. I did not mention about this incident in the charge-sheet. It is wrong to suggest that I had not lodged any complaint against these three persons. I had submitted the complaint in the month of March, 2006 but I do not recollect the exact date.
I have seen the certified copy of the CBI Case No. 192/2019 Page No. 33 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) complaint dated 16.03.2006 shown to me by the Ld. Cross-examining counsel. It is the copy of the same complaint which I had submitted against Insp. Yogender, Insp. Sehrawat and Vijender Solanki. It bears my signature at point A. (The said certified copy of the complaint is taken on record and is marked as Ex.PW107/D1). It is true that I have not mentioned in the complaint that action may be taken against these three persons. I had handed over the said complaint directly to the then SP by hand and for that reason there is no diary number on the complaint. It is wrong to suggest that the complaint have been ante dated by me and for that reason there is no mention of the said complaint in the FIR No. RC AC-I/2006/A0001 dated 24.04.2006. It is wrong to suggest that upon coming to know that there has been taping of phones with regards to the said incident, I later on fabricated the aforesaid complaint in collusion with my supervisory officers in order to save myself.
It is correct that I have not arrested Vijender Solanki in this case. It is correct that I had summoned Vinod Verma as well as other property dealers, in whose CBI Case No. 192/2019 Page No. 34 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) presence Vijender Solanki had sold the society to Vinod Verma, to my office for enquiries. I had asked Vinod Verma to produce documents related to the society. I had also conducted search at his residence. It is correct that I have not mentioned about this fact in the charge-sheet. It was for the reason that nothing incriminating was found during the search. I have not annexed the search lists alongwith the charge-sheet.
It is correct that Insp. Yogender had told me that Vijender Solanki is very close to Insp. Sehrawat and his name should not be involved in this case. It is correct that Insp. Yogender had also told me that Vijender Solanki knows accused Raj Kumar. It is wrong to suggest that for these reasons, accused Raj Kumar has been framed falsely in this case in place of Vijender Solanki. I did not seize Call Details Record of any of the accused as well as that of Vijender Solanki."
42. As already noted hereinabove accused Raj Kumar Samuel has examined himself as a witness as DW-3 in his defence. The relevant portion of his deposition also needs to be reproduced here below:-
CBI Case No. 192/2019 Page No. 35 of 75CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) "I knew Bijender Solanki since the year 2000-2001. He was having flourishing business of Real Estate and was having his office at 14B, Satya Niketan, New Delhi. He was doing the said business in the area of Palam and Dwarka. I was a small time property dealer. Bijender Solanki used to engage me for letting out his properties or the properties of his friends. I used to get some income by letting out these properties.
One day in the year 2004, I received a call from Bijender Solanki asking me to reach his office. Accordingly, I went to his office. He told me that he is having a Cooperative Group Housing Society by the name of Ram Nagar CGHS Ltd, which is registered with the RCS Office but its elections are not taking place. He further told me that he does not get time to visit RCS Office and requested me to visit RCS Office on his behalf in this regard. He also told me that I should meet one Mr. Mehndiratta, Election Officer, in the RCS Office and ask him why the elections of the said society are not being conducted.
Accordingly, I visited RCS Office and met Mr. Mehndiratta. I asked him as CBI Case No. 192/2019 Page No. 36 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) to why the elections of the said society are not being conducted, to which he replied that how can the elections of the said society be conducted when nobody from the society has come to meet him. He further told me that it would require a sum of Rs. 15,000/- to conduct the elections for the said society. I immediately made a call to Bijender Solanki and apprised him about the demand of Mr. Mehndiratta. He told me to pay the said amount to Mr. Mehndiratta. But I was having only a sum of Rs. 3,000/- with me. I apprised Mr. Solanki about the same and he told me to pay this amount to Mr. Mehndiratta and he will take care of the balance amount. Mr. Mehndiratta also asked me to pay the said sum of Rs. 3,000/- to him so that the work of elections can be started. Accordingly, I paid the said sum of Rs. 3000/- to Mr. Mehndiratta. Lateron, Mr. Bijender Solanki repaid the said sum to me.
One day in the year 2005, I again received a call from Bijender Solanki. He told me that he wants to sell the aforesaid society Ram Nagar CGHS Ltd and asked me to arrange a buyer for the same. I told him that I am a small time property dealer CBI Case No. 192/2019 Page No. 37 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) and do not know any such person who wishes to buy a cooperative housing society. He still insisted upon me to search for a buyer. I contacted my known property dealers in Dwarka Area and Rohini Area in this regard but was unable to find any person who was willing to buy the said society.
After about 3-4 months, I received a call from a property dealer named Deepak Goswami who told me that there is a buyer willing to purchase the aforesaid society. Accordingly, I contacted Bijender Solanki and he asked me to arrange a meeting with the buyer. Thereafter, a meeting was arranged between Bijender Solanki and the buyer namely Vinod Verma, who was a builder operating in Rohini Area, at the office of Bijender Solanki I.e 14B, Satya Niketan, New Delhi. A deal was finalized between the two in the said meeting. It was agreed that Vinod Verma would purchase the said society for a sum of Rs. 50,00,000/-. Accordingly, Vinod Verma paid the said sum of Rs. 50,00,000/- to Bijender Solanki at that very moment in my presence and Bijender Solanki handed over the entire documents of the society CBI Case No. 192/2019 Page No. 38 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) Ram Nagar CGHS Ltd to Vinod Verma at that very time in my presence. The property dealers Deepak Goswami and one Mr. Chopra were also present during the meeting and witnessed the said transaction. I was paid a sum of Rs. 10,000/- or Rs. 15,000/- as my commission by Bijender Solanki.
Thereafter, in the month of June, 2006, I received a summon from CBI. I visited CBI Office and met the IO SI Vishal. I told all the facts to him. He already knew Vinod Verma. The IO took me to the office Vinod Verma at Rohini. However, Vinod Verma was not present in the office at that time. The IO made enquiries from the staff present in the office about me and they told me that they had not seen me in the office before that date. On the asking of SI Vishal, I made telephonic calls to Deepak Goswami and asked him to reach office of Vinod Verma alongwith other property dealers who were present at the time of the transaction between Bijender Solanki and Vinod Verma. Accordingly, Deepak Goswami alongwith two other property dealers Mr. Chopra and Mr. Gupta reached the office CBI Case No. 192/2019 Page No. 39 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) of Vinod Verma. The IO made enquiries from them and they confirmed that they were present at the time of the deal regarding the society between Bijender Solanki and Vinod Verma. He asked them to reach CBI office the next day.
Next day, I had reached CBI Office. Bijender Solanki, Deepak Goswami, Mr. Chopra and Mr. Gupta also came there. SI Vishal recorded the statement of all these four persons in my presence and also confronted them with each other.
After about 2 or 3 days, when I had again reached CBI office for giving my specimen signatures, I saw Vinod Verma also present in the CBI Office. He had come there in connection with some other CBI case. I recognized him and told SI Vishal that he is Vinod Verma. SI Vishal made enquiries from Vinod Verma in my presence who admitted that he had purchased the Ram Nagar CGHS Ltd from the Bijender Solanki. IO asked him to come to CBI Office again on the next day. I also was asked to come to CBI Office on the next day.
Accordingly, I reached CBI Office the next day also. Vinod Verma had also CBI Case No. 192/2019 Page No. 40 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) reached there. Bijender Solanki was also present in CBI Office on that day. Both admitted the deal with regards to Ram Nagar CGHS before the IO in my presence. Vinod Verma further stated that he had already sold the society to some other person. Lateron I came to know that the records of the society had been recovered by CBI.
SI Vishal had also taken me to the then SP and told him that I have cooperated in the investigation of this case and have helped CBI in nabbing the culprits. The SP had appreciated my acts. I was told that I would be cited as a witness in this case. However, when I received summons from the CBI court in this case, I was shocked to find that I have been arrayed as an accused."
43. In the cross-examination, he deposed that he did not see any document being executed between Bijender Solanki and Vinod Verma with regards to the sale of the Society. He stated that Vinod Verma had handed over a sum of Rs. 50 lacs in cash to Bijender Solanki in his presence and at that time three property dealers namely Deepak Goswami, one Mr. Chopra and one Mr. Gupta were also present there. He did not know as from whom Bijender Solanki had taken the said Society and who were its CBI Case No. 192/2019 Page No. 41 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) office bearers. Further he denied the suggestions put to him in this regard by the Ld. Public Prosecutor.
44. Upon close scrutiny of the testimonies of PW-59 and PW-107 (IO) in juxtaposition with the deposition of accused Raj Kumar Samuel as DW-3, particularly the above noted portions, it becomes manifest that whatever has been deposed by DW-3 was found to be correct and got confirmed during the investigation of this case. From the statement of PW-107 in his cross- examination, it is limpid that PW-59 Vijender Solanki had taken over the Society Ram Nagar CGHS Ltd. and later on sold it to one Vinod Verma for a sum of Rs. 50 lacs. Since this fact had come to the knowledge of PW-107, he had summoned both Vijender Solanki (PW-59) as well as Vinod Verma and also other property dealers in whose presence Society was sold by former to the later. He even recorded statement of Vinod Verma and also conducted search at his residence. Vinod Verma had mentioned in his statement that he sold the said Society to Subhash Gupta of M/s Gupta Properties who is accused in several CBI cases related to Co-operative Group Housing Societies.
45. However, ironically and to the utter dismay of this Court, the IO concealed these material facts from the Court. Admittedly, nothing has been mentioned in the charge-sheet with regards to these facts which had come out during the course of investigation. The prime conspirator or at least the prime beneficiary i.e. PW-59 Vijender Solanki appears to have been deliberately shielded from prosecution in this case and instead, as CBI Case No. 192/2019 Page No. 42 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) would seem disdainful to one and all, he has been cited and examined as a witness. By doing this, the entire investigation has been reduced to mockery and patently appears to be biased.
46. The reason for such conduct of the IO (PW-107) is not far to seek. He has himself deposed that Vijender Solanki was trying to influence the investigation and had approached him through Inspectors Sh. Yogender Kumar and Sh. Sehrawat. Insp. Yogender had told him that Vijender Solanki is in collusion with Sr. CBI officers and has paid huge amounts to them. He had submitted a complaint (copy of which is Ex.PW107/D) against Insp. Sehrawat and Vijender Solanki. Ld. PP informed the Court that a separate FIR bearing NO. RC AC1 2006 20001 dated 24.04.2006 was registered with regards to the said incident and all the three were charge-sheeted in that case.
47. Even though the IO has acted honestly as well as diligently in filing complaint against these three persons yet he appears to have succumbed to the pressure created upon him as a result of which he spared Vijender Solanki by concealing all these facts in the charge-sheet and citing him as a witness despite having gathered incriminating facts/circumstances against him, thereby making a mockery of the entire investigation and misleading this Court.
48. Be that as it may, accused Raj Kumar Samuel does not appear to have any specific interest in the Society of his own. He was merely acting on behalf of PW-59 Vijender Solanki. It is CBI Case No. 192/2019 Page No. 43 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) on the directions of PW-59 that he had meet PW-58 and paid Rs.3000/- to him as expenses for conducting the elections of the Society. There is no concrete or cogent evidence on record to show that he was a conspirator and was acting in furtherance to the object of the conspiracy. His innocence become evident from his own testimony which has remained unassailed as well from the deposition of IO (PW-107).
49. It is also pertinent to note here that PW-109, who had conducted Preliminary Enquiry in this case, has categorically deposed that nothing inculpating was found against accused Raj Kumar Samuel during the enquiry and for this reason he was not named as an accused in the FIR. The PE report too clearly absolves this accused.
50. Thus, what can be safely gathered from the above noted proven facts and circumstances on record is that accused Raj Kumar Samuel has been implicated in this case at the behest of and in place of Vijender Solanki. The entire testimony of Vijender Solanki (PW-59) is patently false, fabricated and motivated. No such facts or circumstances, as stated by him in his deposition before this Court, had come to light during the investigation of this case. The material which had come to the knowledge of the IO during the course of investigation clearly indicted him but the same was deliberately ignored, concealed and left out of consideration on account of his interference in the investigation and pressure exerted on his behalf upon the IO (PW-107). Instead of arraigning him as an accused, he has been CBI Case No. 192/2019 Page No. 44 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) cited as a witness only with the ulterior motive to implicate accused Raj Kumar Samuel in this case. This person Vijender Solanki has manifestly given false evidence on oath before this Court in order to shield himself and inculpate accused Raj Kumar Samuel. He is liable to be prosecuted for giving false evidence before this Court.
51. So far as accused Ashutosh Pant is concerned, the only evidence against him is the opinion of the GEQD Ex.PW97/8 according to which the inspection report submitted by accused U.S. Bhatnagar is in the handwriting of this accused and signature of deponent on the affidavit in the name of Krishna Dahiya has been appended by this accused. Thus, it was vehemently argued by the Ld. PP that accused Ashutosh Pant has not only prepared false inspection report but also has forged the signature of Krishna Dahiya on the affidavit in her name. According to Ld. PP, this is sufficient to indicate that he was a part of the conspiracy and was acting in furtherance of its object.
52. I don't feel in agreement with the Ld. PP. It can not be said merely on the basis of the expert opinion that accused Ashutosh Pant has forged the signature of Krishna Dahiya on the affidavit on her name. Krishna Dahiya has not been examined as a witness by the prosecution. So, there is no foundation upon which it can be said that the signature in question has not been actually appended by her and has been forged by someone. It is only when there would have been a cogent evidence on record to show that Krishna Dahiya has not actually appended the CBI Case No. 192/2019 Page No. 45 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) signature in question that the aspect of its forgery would arise. May be the handwriting of Krishna Dahiya or her style of making signature is similar to that of accused Ashutosh Pant.
53. As regard the Inspection report submitted by accused U.S. Bhatnagar, it is to be noted that there is no evidence on record to indicate that accused Ashutosh Pant was known to him or had met him at any point of time in relation to the said report or that the later had knowledge that he is being asked to prepare a false inspection report without there being any actual inspection. No other witness has deposed against him. As per the PE report also submitted by PW-109, nothing inculpatory was found against this accused during the Preliminary Enquiry and for that reason he was not named as an accused in the FIR. Further, even if it is assumed that the said report is in the handwriting of this accused yet it does not bear his signature. It has been signed by accused U.S. Bhatnagar. Therefore, the report, even if it is false (which aspect would be dealt with in the later part of the judgement) cannot be attributed to accused Ashutosh Pant It bears the signature of accused U.S. Bhatnagar and he alone is responsible for its consequences.
54. Law relating to the evidentiary value of expert opinion is very well settled. On this aspect, it is profitable to refer to the following observations of the Hon'ble Supreme Court in S. Gopal Reddy Vs. State of A.P. (1996) 4 SCC 596:-
"28. Thus the evidence of PW3 is not definite and cannot be said to be of a CBI Case No. 192/2019 Page No. 46 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering "conclusive" proof and therefore safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal v. State of Punjab, while dealing with the evidence of a handwriting expert, this Court opined:
'7....... we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of presidential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P. that it is unsafe to treat expert handwriting opinion as sufficient CBI Case No. 192/2019 Page No. 47 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Misra v. Mohd. Isa that expire evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee where it was pointed out by this Court that an expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or CBI Case No. 192/2019 Page No. 48 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) circumstantial."
55. Thus it is fairly settled that before acting upon the opinion of handwriting expert, prudence requires that the Court must see that such evidence is corroborated by other evidence either direct or circumstantial. In the instant case, the opinion of GEQD qua accused Ashutosh Pant does not get corroboration from any other evidence on record. Therefore, it would be absolutely unjust and unsafe to hold him guilty merely on the basis of expert opinion of PW-97.
56. In view of the nature of evidence lead by the prosecution, as discussed hereinabove, accused Ashutosh Pant cannot be held to be a conspirator in this case. He deserves to be given benefit of doubt.
57. Now coming to the role of accused public servants.
58. Perusal of the noting file maintained in the RCS office with regard to the Society in question, which is part of Ex.PW16/C, reveals that upon receipt of letter dated 01.11.2003 purportedly signed by one Mr. Aditya in the capacity of the President/Secretary seeking cancellation of the winding up order dated 13.11.1979 and approval of its list of members, a note dated 12.11.2003 was prepared by accused Raman Kumar Verma (Dealing Assistant) stating therein that the file related to the Society was not traceable in the office in spite of strenuous efforts and further suggesting issuance of the circular to all CBI Case No. 192/2019 Page No. 49 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) officials/officers of the department with the request to search the file and sent the same to the Zone within a week. It was also suggested by him that in case intimation within a week is not received from any Branch/Zone, it shall be presumed that such file is not lying in their Zone/Branch. The note was approved by the accused J.S. Sharma (Assistant Registrar) without raising any question as to how the file went missing and who was responsible for the same. He appears to have hurriedly accepted the contention of the author of the said letter to be correct despite the fact that this sudden communication dated 01.11.2003 was received in the RCS office on behalf of the Society which was lying defunct for about 24 years and no records were available in the RCS office pertaining to the said Society.
59. Thereafter, accused Raman Kumar Verma has prepared another note dated 27.11.2003 stating therein that no response has been received to the above circular from any Zone/Branch and proposing to reconstruct the missing file of the Society with the help of the copies of the Registration Certificate, Bye-laws, Audit Reports etc. available with the President/Secretary of the Society. This note too was approved by the accused J.S. Sharma on the same day i.e. 27.11.2003 and by the Registrar i.e. accused Narayan Diwakar on 08.12.2003. Ironically, the Registrar i.e. accused Narayan Diwakar also did not find it prudent and necessary to call for an explanation or to order an enquiry into the circumstances in which the Society file had gone missing from the office. He has chosen not to conduct any such enquiry as well as not to report the matter to the police CBI Case No. 192/2019 Page No. 50 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) so that the matter is properly investigated and the culprit is brought to book. It is intriguing as to how the loss or theft of official record from the office of the Registrar Cooperative Societies was so easily brushed under the carpet without making any enquiry or conducting any investigation in the matter.
60. I may note here that this was not the only case where the file related to the Cooperative Group Housing Societies had gone missing from the office of Registrar Cooperative Society. This Court alone has dealt with about the dozen of cases where the file related to a Cooperative Group Housing Society had gone missing from the said office and the file was reconstructed from the copies of the records furnished by the President/Secretary of the Society. Loss or theft of such large number of official files from the said office create a doubt regarding the conduct of the officials posted in the RCS office at that time and would indicate that these files may have been deliberately concealed or destroyed with the active connivance of those officials/officers with the builder mafia to assist them in getting the defunct Societies revived on the basis of fictitious/forged records.
61. The above conduct of accused J.S. Sharma and accused Narayan Diwakar, who were high ranking officers posted in the RCS office at the relevant time and were expected to conduct the affairs of the office for the public good, shows that their intention had become malafide and they had been won over by the persons who had sought revival of the Society in question. Nothing more can be said against the accused J.S. Sharma as he CBI Case No. 192/2019 Page No. 51 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) has already been expired and proceedings against him have abated vide order dated 26.07.2021. However, it is evident that accused Narayan Diwakar had colluded with the builder mafia and had joined conspiracy, the object of which was to get the Society revived on the basis of fictitious/forged documents.
62. After reconstruction of the file, accused Raman Kumar Verma put up a note dated 23.12.2003 suggesting to appoint accused U.S. Bhatnagar as Inspecting Officer for the Society under Section 54 of DCS Act, 1972 to examine and verify the records of the Society and to bring out the factual position. The note was approved by accused J.S. Sharma on the same day and ultimately by the Registrar Narayan Diwakar on 24.12.2003. Accused U.S. Bhatnagar has submitted his report dated 22.01.2004 (Ex.PW54/C) wherein he has mentioned as under:-
(i) That the Ram Nagar Coop. G/H Society Ltd. Ref. No. 114 dated 21.04.72 is functioning at 14B, Satya Niketan, New Delhi.
(ii) That he met Sh. Aditya Vikram,
President of the Society at 14B, Satya
Niketan, New Delhi.
(iii) That the President informed
him that no liquidation order has been
received by the Society from the RCS office, CBI Case No. 192/2019 Page No. 52 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) it is only came to know when he visited RCS office to know the status of the Society.
(iv) The proceeding Register of the is complete and the last M.C. Meeting was held on 09.12.03.
(v) That as per record, the Society has shifted to address from Opp. D-364, Kidwai Nagar to 14B, Satya Niketan, New Delhi vide Managing Committee Meeting Resolution passed on 12.07.99 and subsequently approved by Spl. Gen. Body Meeting held on 21.09.79.
(vi) That the audit of the Society is pending since its registration i.e. 16.02.72.
(vii) That as per records the Society's last Election/AGM was held on 17.09.03 as per DCS Act & Rules.
(viii) That all the records of the Society are found under the safe custody of Sh. Aditya Vikram, President of the Society.
(ix) That no complaint/case is pending with the RCS office.
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63. As per the above referred inspection report submitted by accused U.S. Bhatnagar, Sh. Aditya Vikram (President of the Society) had met him at the Society office and all the Society records were found in the safe custody of said Sh. Aditya Vikram. The prosecution has examined Sh. Aditya Vikram as PW-65. He has deposed that he had never become member of Ram Nagar CGHS Ltd. and denied his signatures on the Membership Application Form Ex.PW65/1 and Affidavit dated 04.02.2004 Ex.PW65/2 in his name. He also denied his signature on the above referred Inspection Report Ex.PW54/C submitted by accused U.S. Bhatnagar.
64. Since, the said Sh. Aditya Vikram had never taken the membership of the Society, there was no reason or occasion for him being elected as its President. There was also no reason or occasion for him to keep the records of the Society in his custody and to produce the same before the Inspecting Officer i.e. accused U.S. Bhatnagar. It is, therefore, evident that accused U.S.Bhatnagar had not conducted the actual inspection of the records of the Society as required of him and he just believed the representation of the persons representing the Society to the effect that Sh. Aditya Vikrams is the President of the Society and records of the Society are in his safe custody. Had he proceeded to conduct the actual inspection of the records of the Society, he would have come to know that the Society office does not exist at 14B, Satya Niketan, New Delhi and that there is no member of the Society (much less its President) by the name of Sh. Aditya Vikram. It was vehemently argued by the Ld. Counsel for ac-
CBI Case No. 192/2019 Page No. 54 of 75CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) cused U.S. Bhatnagar that no reliance can be placed upon the tes- timony of PW-65 as he appears to be an interested witness. I do not find any merit in these arguments of the Ld. Counsel. I have gone through the cross-examination of this witness conducted on behalf of accused U.S. Bhatnagar which is very brief, consisting of just two paragraphs. There is nothing in this cross-examination to show that he is an interested witness or that he has deposed falsely and cannot be trusted. He appears to be a genuine and reliable witness.
65. Therefore, it is manifest that accused U.S. Bhatnagar has submitted a patently false report without conducting any actual inspection. His conduct clearly indicates that he had joined the conspiracy, the object of which was to ensure revival of the Society on the basis of forged documents and he is, thus, liable as a conspirator also.
66. Upon receipt of the inspection report submitted by accused U.S. Bhatnagar, accused Raman Kumar Verma prepared another note dated 23.01.2004 wherein he mentioned the contents in brief of the said report. He also mentioned that the Inspecting Officer had obtained the copies of the unaudited accounts of the Society since 15.06.1988, Minutes of AGM dated 16.02.1972, list of Members of the Society, Minutes of Managing Committee Meeting dated 12.07.1978, Minutes of Special GBM dated 21.07.1979 and records related to the last Election/AGM held on 15.09.2003, Registration Certificate, Bye-laws etc. which he placed in the file. The file was then placed before the CBI Case No. 192/2019 Page No. 55 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) Registrar Narayan Diwakar on the same day. Thereafter, a letter was sent by the Reader to the Registrar on 27.01.2004 to the President/Secretary of the Society with the direction to appear in the Court of Registrar Cooperative Societies on 10.02.2004 alongwith the original records of the Society.
67. However, the file was taken up by accused Narayan Diwakar on 03.02.2004 without assigning any reason. He recorded the presence of Sh. Ashok Kumar as Secretary of the Society and passed an order directing accused J.S. Sharma (AR) to conduct the spot verification of the Members of the Society at random and submit the report on or before the next date of hear- ing i.e. 05.02.2004. Thereafter, accused Raman Kumar Verma prepared a detailed typed note dated 05.02.2004 mentioning therein the entire history of the case and in the end submitting the file to the Assistant Registrar for taking action u/s 63 (3) of DCS Act, 1972 and to approve the final list of 129 Members of the So- ciety. In the endorsement dated 05.02.2004 made by accused J.S. Sharma below the said note, it has been mentioned by him that the spot verification of some of the members at random has been done whereas no such verification had ever been conducted by any official of the RCS office. On the same very day i.e. 05.02.2004, accused Narayan Diwakar passed a detailed order pointing out some lacunas in the winding up order dated 13.11.1979. Ultimately, vide order dated 06.02.2004, accused Narayan Diwakar cancelled the said winding up order and di- rected revival of the Society.
CBI Case No. 192/2019 Page No. 56 of 75CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.)
68. The undue and mindless haste shown by accused Narayan Diwakar in reviving the Society also points out clearly that he had colluded with other conspirators and was acting in furtherance to the object of the conspiracy. Despite the fact that his Reader had sent letter on 27.01.2004 to the President/ Secretary of the Society for their appearance before Court of RCS on 10.02.2004 alongwith the original records of the Society, he took up the file dishonestly, fraudulently and without assign- ing any reason on 03.02.2004. It is not ascertainable from the record as to how Sh. Ashok Kumar, the purported Secretary of the Society, got the intimation that he has to remain present before the Registrar on 03.02.2004. His presence before the Registrar on that date also indicates the collusion between the persons who were representing the Society and the Registrar. Further, the Registrar Narayan Diwakar never bothered to ask the accused J.S. Sharma (AR) to produce the report with regards to the spot verification of Members of the Society at random. Even though he had directed such verification, he did not bother to examine said report to satisfy himself as to whether the Society genuinely exists and whether its members are interested in its continuation. Lastly, he has digged out imaginary and baseless lacunas in the winding up order dated 13.11.1979 to create a ground for cancelling the said order. He has mentioned that Dy. Registrar who had passed the order dated 13.11.1979 u/s 63 of the DCS Act, 1972 was not competent to decide the matter u/s
63. But he has not pointed out any material on which basis he has given this finding. It is an important to note here that admittedly, the file related to the Society had gone missing and therefore, CBI Case No. 192/2019 Page No. 57 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) there was no record before him to give such a finding. On the other hand, the Deputy Registrar Sh. Ashok Bakshi who had passed the winding up order dated 13.11.1979, has been exam- ined as PW-57 and has deposed that the Government of NCT of Delhi had delegated upon him the powers of the Registrar Coop- erative Societies.
69. The overall conduct shown by accused Narayan Diwakar during the process of dealing with the request of the Society for its revival is clearly indicative of the fact that he had joined conspiracy and was acting in furtherance of its object. One wonders as to where was the hurry in reviving the Society on the basis of incomplete record and by ignoring the vital lapses in the same. The revival order was passed within a span of just less than two months. It could have waited for few more days or months as the Society was lying dormant for about 24 years and a few more days or months would not have been made any difference at all. Manifestly, accused Narayan Diwakar has not acted bonafidely, honestly and diligently for the public good. He does not appear to have been discharging his functions in this case as a public servant but only was aid/facilitators for the other conspirators who had hatched conspiracy with the object of getting the Society revived on the basis of fictitious/forged documents. Had he been honest and diligent in the discharge of his functions as a public servant in the RCS office, he would have easily detected the forgery/manipulation in the records of the Society. It was not an herculean task but only required the Will and intent to dis- charge public functions honestly. His acts of commission or CBI Case No. 192/2019 Page No. 58 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) omission, discussed hereinabove, leave no doubt in ones minds that he had been doing so and upon obtaining pecuniary advan- tage either for himself or for some other persons. The manner in which the application submitted on behalf of the Society for its revival was processed in the RCS office and the speed with which the order for its revival was passed, as indicated by the above mentioned facts, clearly reflects that the entire process was merely a formality and eye wash and the Registrar Narayan Diwakar had already made up his mind to revive the Society at any cost. Certainly and beyond any doubt, he is liable as a con- spirator.
70. Here, I find it appropriate to reproduce Section 7 and 13 (1) (d) of the PC Act, 1988:-
Section 7. Public servant taking gratification other than legal
remuneration in respect of an official act.
- Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to CBI Case No. 192/2019 Page No. 59 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause
(c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Section 13. Criminal misconduct by a public servant. -
(1) A public servant is said to commit the offence of criminal misconduct, -
(d) if he, -
................................................... ...................................................
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;
CBI Case No. 192/2019 Page No. 60 of 75CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.)
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
71. Perusal of the Section 13 (1) (d), reproduced herein above shows that the essential ingredients of the offence of criminal misconduct relating to the government officials are :-
(i) that the accused is a public servant;
(ii) he has obtained any valuable thing or pecuniary advantage for himself or for any other person by corrupt or illegal means or by abusing his position as public servants (sub-section (1) (d) (i) (ii) of Section 13);
(iii) he has obtained such valuable thing or pecuniary advantage for any other person without any public interest, while holding office as a public servant (sub-
section (1) (d) (i) (iii) of Section 13);
CBI Case No. 192/2019 Page No. 61 of 75CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.)
72. Thus, in order to attract Section 13 (1) (d) (ii), the prosecution has to establish that the public officer has indulged in corrupt or illegal means or has abused his position as such officer to obtain any valuable thing or pecuniary benefit for himself or any other person. However, for attracting Section 13 (1) (d) (iii), the prosecution has to prove merely that the public officer obtained a valuable thing or pecuniary benefit to any person without any public interest. Use of corrupt or illegal means or abuse of official position or obtaining pecuniary advantage for himself is immaterial for applicability of sub clause (iii).
73. Analyzing the aforesaid sub clause (iii), the Hon'ble High Court in case of Runu Ghosh Vs. CBI, Criminal Appeal No. 482/2002 decided on 21.12.2011 has observed:-
"A new offence (or sub-species, of the existing offence) has been carved out, in Section 13 (1) (d) (iii) which criminalizes, as "criminal misconduct"
the act of a public servant, holding office, which results in someone else (any person) benefitting by getting a valuable thing or pecuniary advantage, without any public interest. There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime.
CBI Case No. 192/2019 Page No. 62 of 75CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone else - not necessarily by abusing his office, or using corrupt or illegal means - pecuniary advance or a valuable thing - without public interest."
74. Upon the detailed analysis of the said provision of law, Hon'ble High Court, in the aforesaid judgement, came to the conclusion that mens rea is inessential to convict the accused for the offence punishable under Section 13 (1) (d) (iii) of PC Act, 1988. In this regard, it has been observed in Para No. 73 of the judgement is as under:-
Para No. 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, CBI Case No. 192/2019 Page No. 63 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) 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. Explaining the concept of "public interest", there Lordship referred to the judgement of Supreme Court in LIC of India Vs. Consumer Education & Research Centre, (1995) 5 SCC 482 and reproduced following paragraph of the said judgement:-
"Public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just CBI Case No. 192/2019 Page No. 64 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good an in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision. A recent judgement, has examined the concept, in NOIDA Entrepreneurs Associate."
76. Their Lordships also referred to another judgement of the Supreme Court reported as NOIDA Entrepreneurs Association Vs. NOIDA (2011) 6 SCC 508 wherein it has been held in this regard as under: -
The State or the public authority which holds the property for the public or which has been assigned the duty of grant largesse, etc. acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee.CBI Case No. 192/2019 Page No. 65 of 75
CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) xxxxxxxxx xxxxxxxxx Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. Public authorities cannot play fast and loose with the powers vested in them. A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred.
77. Hence, even if the prosecution is unable to prove mens rea on the part of the accused public servants or the fact that they had received any pecuniary gain for themselves for their acts, the fate of the accused would be sealed if the prosecution succeeds in establishing that the public servant has obtained any pecuniary advantage or valuable thing to another without public interest. In other words, if the evidence on record shows that the acts of the concerned public servant are absolutely unfair, CBI Case No. 192/2019 Page No. 66 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) unreasonable, unjust, inequitable and not for the purpose of public good, he shall be considered to have acted without public interest.
78. Thus, in the instant case, even if the CBI has not produced any evidence to show that accused Narayan Diwakar and U.S. Bhatnagar had received any valuable thing or pecuniary advantage for himself, it is manifest beyond any reasonable doubt that they had been acting in collusion with private accused/conspirators who were interested in the revival of the Society on the basis of fictitious documents and they were assisting them in every possible way to ensure that the Society gets revived on the strength of fake document. Certainly he has acted without any public interest.
79. So far as charge of conspiracy framed against the accused Narayan Diwakar and U.S. Bhatnagar are concerned, reference to Section 10 of Indian Evidence Act is necessary. It may be noted here that very nature of the offence of conspiracy i.e. an agreement to do or cause to be done an illegal act, indicates that it would not be entertained at a public place or on a high pedestal. Such agreement are always formed in privacy and away from the gaze of any other person. Therefore, it has always been found difficult together direct evidence to prove a conspiracy. Considering this difficulty, Section 10 of the Indian Evidence Act was enacted which reads as under:-
"10. Things said or done by conspirator in reference to common design - Where there CBI Case No. 192/2019 Page No. 67 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
80. The implications and ramifications of the Section 10 of the Indian Evidence Act have been discussed in detail by the Supreme Court in Kehar Singh & Ors. Vs State (Delhi Administration) 1988 (3) SCC 609. It has been held that the section can be analyzed as follows :
(i) There shall be a prima-facie evidence affording a reasonable ground for a court to believe that two or more persons are members of the conspiracy;
(ii) If the said condition is fulfilled, anything said to be done or written by any one of them with regards to their common intention will be evidence against the CBI Case No. 192/2019 Page No. 68 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) other;
(iii) Anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them;
(iv) It would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it;
(v) It can only be used against co-
conspirator and not in his favour.
81. It has also been held by the Supreme Court in Nazir Khan Vs. State of Delhi (2003) 8 SCC 461 that the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. It has been further held that the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Reiterating that it is not always possible to give affirmative evidence about the date of formation of criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which CBI Case No. 192/2019 Page No. 69 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) the objectors set before themselves as the object of conspiracy and about the manner in which the object of conspiracy is to be carried out, the Supreme Court observed that all this is necessarily a matter of inference. The Hon'ble Judges also referred to the observations of British Judge Coleridge J. in R.V. Murphy (1837) 173 ER 502 which I find pertinent to reproduce herein :
"........ I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in CBI Case No. 192/2019 Page No. 70 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) a conspiracy to effect that object. The question you have to ask yourselves is, 'had they this common design, and did they pursue it by these common means - the design being unlawful."
82. In the instant case also there is no direct evidence on record to show that there had been any agreement between accused Narayan Diwakar and U.S. Bhatnagar on one hand and other conspirators on the other hand. However, the evidence on record clearly shows that accused Narayan Diwakar and U.S. Bhatnagar had been acting in furtherance to the common object of the conspiracy. The criminal acts performed by them were certainly the result of an agreement between them and the other conspirators. Therefore, the evidence on record provides prima- facie reasonable grounds to believe that they had joined the conspiracy, the object of which was to get the dormant society revived on the strength of fake/forged documents. Therefore, whatever has been done by each of the above conspirators is evidence against each of them. The prosecution has been successful in establishing the charge of conspiracy against these two accused.
83. So far as the accused Raman Kumar Verma is concerned, he was posted as Dealing Assistant (LDC) in the RCS office at the relevant time. As already noted hereinabove, he has prepared the notes dated 12.11.2003, 27.11.2003, 23.01.2004 and 05.02.2004. Perusal of these notes would reveal that he had only CBI Case No. 192/2019 Page No. 71 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) recorded whatever was observed by him and thereafter sent the file to his senior officers for appropriate action/orders. He was not a decision making authority. It is nowhere reflected that he had applied his mind to the facts coming forth before him and had arrived at any conclusion. After preparing these notes, he had merely left it to the discretion of the higher officers to pass appropriate orders, as was required of a lower rank employee like him. Thus, no malafide intention can be attributed to him on the basis of these notes prepared by him. His conduct nowhere shows that he had colluded with the office bearers of the Society and intended to cause any favour to them. He appears to have acted bonafidely during the official course of his duties without any criminal intent. There is no cogent evidence on record to show that he too had joined conspiracy and was acting in furtherance of the object of the conspiracy.
84. Another public servant who has been arraigned as an accused in this case is P.K. Thirwani. In pursuance to the conditions imposed by the Registrar Narayan Diwakar in the revival order dated 06.02.2004, accused J.S. Sharma had appointed him as auditor to conduct the audit of the Society. He is alleged to have submitted a false audit report in respect of the Society for the period from 1971-72 to 2002-03 in violation of the Rules laid down by the RCS office. It is also alleged that he has mentioned in his report that the Society has been maintaining its account with Delhi State Cooperative Bank, Daryanganj Branch, New Delhi whereas no such account of the Society was found to have been opened in the said bank.
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85. Perusal of the report submitted by this accused would show that it is dated 31.03.2004 whereas the Society had been revived vide order dated 06.02.2004 passed by the Registrar Narayan Diwakar and its freeze list was sent to DDA on 25.03.2004. It is, therefore, evident that the said audit report has not been looked into or considered at all either at the time of revival of the Society or at the time of approval of its membership list and forwarding of the said list to DDA. Moreover, he has raised very material objections in the said report with regards to the cash book and other records maintained by the Society. He has clearly stated that the share register was found incomplete; share certificates had been issued to some members only; cash book was found incomplete; financial position of the Society needs improvement; and there is no transaction with the bank during the period under audit. It is very difficult to say on the basis of his report that he had been won over by the representatives of the Society or that he had been acting at their behest in furtherance of the object of the conspiracy. By no stretch of imagination can he be said to have given the report in favour of the Society. It is true that he has mentioned in the report that there is a balance of Rs. 4800/- shown in the DSC Bank Ltd. in suspense account at the close of every year whereas during the course of the investigation of this case, it was found that there was no account of the Society in DSC Bank Ltd. In this regard, it may be noted that the auditor P.K. Thirwani has mentioned about this balance amount in the account of the Society on the basis of the records submitted before him. He has very specifically mentioned in the report that CBI Case No. 192/2019 Page No. 73 of 75 CBI Vs. Narayan Diwakar etc. (Ram Nagar CGHS Ltd.) confirmation as well as reconcilliation with regards to the said balance amount may be done from the concerned bank and the same may be kept on record and submitted to the RCS office also. He also advised the Society to make necessary entries through the bank only. Therefore, the auditor P.K. Thirwani has raised objection and given material suggestions on this aspect also. He was not required to visit the bank in order to verify the bank account of the Society as well as the balance amount lying therein. He has mentioned in his report whatever he had observed from the records of the Society and gave suggestions as he thought necessary.
86. Hence, no finding of guilt can be given against this accused also.
Decision:-
87. In the light of the above discussion, accused Raman Kumar Verma, P.K. Thirwani, Raj Kumar Samuel and Ashutosh Pant are hereby acquitted of all the charges.
88. Accused Narayan Diwakar and U.S. Bhatnagar are hereby convictd as under:-
(i) Both of these accused are convicted u/s 120B IPC r/w Sections 420/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988.
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(ii) Both the accused are also convicted u/s 15 r/w Section 13 (1) (d) of PC Act, 1988.
(iii) Accused U.S. Bhatnagar is also
convicted u/s 468 IPC as well as u/s 471
IPC.
89. In view of the findings and observations of this Court contained in Paragraph No. 44 to 50 hereinabove, it is expected that the concerned Head of Branch would apprise the senior officers about these facts so that fresh investigation is carried out into the role of Vijender Solanki (PW-59) in the entire conspiracy and he is brought to book.
Announced through VC. Digitally signed by
VIRENDER BHAT
VIRENDER Location: North East
District, Karkardooma
BHAT Courts, Delhi
Date: 2021.10.23
15:00:16 +0530
(VIRENDER BHAT)
ADDL. SESSIONS JUDGE-03,
NORTH-EAST/KKD COURTS, DELHI
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