Delhi District Court
Cbi vs . Gokul Chand Aggarwal Etc. (Swarn Cghs ... on 7 November, 2022
CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
IN THE COURT OF SH. ANIL ANTIL
SPECIAL JUDGE, PC ACT, CBI-15,
ROUSE AVENUE DISTRICT COURT, NEW DELHI.
IN THE MATTER OF:
CBI No. : MISC-DJ/ASJ 74/2021
CNR No. : DLCT11-000363-2021
FIR No. : RC.17(A)/2005/SCU-V/SCR-II/CBI/New
Delhi.
PS : CBI/SCU-V/SCR-II/CBI/New Delhi.
U/s : 120-B IPC r/w Section 420, 468, 471 of IPC
and Section 420/511, 468&471 IPC & Section
13 (2) r/w Section 13 (1)(d) of P.C Act, 1988
and Section 15 r/w Section 13(1)(d) of P.C.
Act, 1988 and 174-A IPC & substantive
offences thereof.
State
Through
Central Bureau of Investigation
New Delhi.
Versus
Gokul Chand Aggarwal
S/o Late Jagdish Prasad
R/o A-603 & 703, Ashoka Aptts.
Plot No. 36/2, Rohini, Sector-9,
Delhi ..................... (A-1).
MISCDJ/ASJ 74/2021 Page No. 1 of 41
CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
Date of Institution : 29.03.2007
Date of judgement reserved on : 13.10.2022
Date of pronouncement of judgement : 31.10.2022
JUDGEMENT
1. Before I proceed to discuss the case at hand, it is relevant here to mention that, after the charge sheet against all the accused persons was filed and matter was put to trial, present accused Sh. Gokul Chand Aggarwal had absconded, and despite coercive orders his presence was not procured, he accordingly was declared proclaimed offender vide order dated 10.07.2018 by the then learned Special Judge, PC Act, CBI-15.
2. Qua the remaining accused persons final judgment / order on sentence was pronounced by the learned predecessor court vide its judgment dated 21.12.2020 and Order on sentence separately dated 24.12.2020.
3. Accused Ashwani Sharma (A-6) and Naveen Kaushik (A-7) were acquitted, whereas, Narayan Diwakar (A-2), Uday Shankar Bhatnagar (A-4), Faiz Mohd.(A-5) and Kamal Singh (A-8) were held guilty for the offences punishable 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 and also under Section 15 r/w Section 13 (1) (d) of PC Act, 1988 .
4. During trial proceedings accused Daya Nand Sharma had expired and judicial proceedings against him were abated vide MISCDJ/ASJ 74/2021 Page No. 2 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) court orders dated 22.11.2017.
5. Charge sheet reveals that the case was registered on the directions of Hon'ble High Court of Delhi passed on 02.08.2005, in Civil Writ Petition no.10066/2004 by directing the CBI to investigate the irregularities / illegalities in the matter relating to revival of 135 Cooperative Group Housing Societies and in compliance of the said directions a PE/3/E/2005/EOU.VII was registered ; investigations were carried out and on the basis of which present case was registered vide RC no 17(A)/2005/SCU-V/SCR- II/CBI/New Delhi against the accused persons who were involved into fraudulent and illegal activities concerning the SWARN Cooperative Group Housing Society.
6. The case herein relates to the forgeries committed in the records of a Group Housing Society namely SWARN CGHS Ltd to seek its revival with the object of availing land on concessional basis from the DDA.
7. Briefly, accused Gokul Chand Aggarwal was charge- sheeted alongwith his erstwhile co-accused persons namely Daya Nand Sharma, Ashwani Sharma, Naveen Kaushik, Narayan Diwakar, Uday Shankar Bhatnagar, Faiz Mohd. and Kamal Singh, by the CBI, the prosecuting agency in this case, for having committed offences punishable under Section 120-B IPC r/w Section 420, 468, 471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 as well as substantive offences thereto.
8. Investigations revealed that the erstwhile accused Narayan Diwakar ( Registrar), D.N. Sharma ( Asstt. Registrar ), MISCDJ/ASJ 74/2021 Page No. 3 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) U.S. Bhatnagar (UDC), Faiz Mohd. ( Head Clerk ) and Kamal Singh ( LDC/Auditor ) were the public servants being posted in the RCS Office at the relevant time, and they all in-active connivance with other private accused persons were instrumental in reviving the Society on forged and fabricated documents.
9. Accused Gokul Chand Aggarwal, Ashwani Sharma and Naveen Kaushik are private persons who all are alleged to have hatched the conspiracy to commit the case crime at hand.
10. Investigation revealed that SWARN CGHS Ltd was registered as a Cooperative Group Housing Society on 27.07.1972 with 24 promoter members ; that the members of the Society were not taking any interest in the affairs of the Society, and the Society had failed to fulfill its statutory obligations in terms of Delhi Cooperative Societies Act, 1972 as well as Rules/By-laws framed thereunder, and therefore, an order dated 08.01.1979 was passed by the then Deputy Registrar Sh. Ashok Bakshi liquidating the said Society, after issuing Show Cause Notice in that regard.
11. Investigation further revealed that on 08.08.2003, i.e. after about 24 years from the date when the society was put under liquidation, a request was submitted on behalf of the Society by one Sh. Suresh Chand in the capacity of its Secretary, for revival of the Society and cancellation of the liquidation order thereto. The office address of the Society was shown at 52, Samay Pur Road, Libas Pur, Delhi-110042.
12. Investigation revealed that pursuant to the said request, the case of the Society was processed in the office of the Registrar MISCDJ/ASJ 74/2021 Page No. 4 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Cooperative Society, New Delhi, wherein it was revealed that the original file of the Society was missing from the records ; the file was reconstructed and further proceedings were conducted accordingly on the basis of documents supplied by the office bearers of the Society.
13. Investigations revealed that all the documents submitted by the Society for reconstruction of the record file were false, forged and fabricated documents. And that Sh Suresh Chand, alleged Secretary, is/was not traceable or may be he is a fictitious person.
14. Investigation revealed that the present accused Sh. Gokul Chand Aggarwal was a regular visitor to the RCS office at the relevant point of time and was well known to the officers/officials of the said office.
15. He is alleged to have forged the signatures in the name of Sh. Suresh Chand, as Secretary on revival application, and also on the inspection report, minutes of meetings, the signatures on 88 affidavits of various persons, signatures of 55 applicants on enrollment application forms.
16. He also alleged to have forged the signature of Sh. Ajay Gupta, as President, Sh Suresh Chand as Secretary and Sh Praveen Kumar as Treasurer respectively on the audit report of the Society as well as on the list of members of the Society.
17. He is further alleged to have written the names of promoter members of the Society and forged their signatures on the copy of by-laws of SWARN CGHS Ltd, and also forged the MISCDJ/ASJ 74/2021 Page No. 5 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Registration Certificate of the Society dated 27.07.1972.
18. Investigation revealed that the number of affidavits of member(s) of the Society are shown to have been sworn on 28.11.2003 and attested by Sh. Arun Kumar Gupta, Notary Public, whereas Sh Arun Kumar Gupta had already expired on 15.01.2002.
19. It was also revealed that the stamp papers were not bearing the name and address of the stamp vendors, indicating that the said affidavits are forged and fabricated documents.
20. Investigation further revealed that accused Naveen Kaushik had forged various writings on the proceedings registers of the Society, in addition to the signatures on the nomination forms for the elections and also on the resignation letters.
21. Investigations has revealed that the documents including inspection reports, letters, election reports, affidavits, consolidated list of members, resignations/enrollments, receipts and payments as well as the balance-sheet etc. used for revival of the Society were prepared on the computer of accused Ashwani Sharma.
22. Investigation revealed that pursuant to the said conspiracy Sh. Faiz Mohd. (A-5) posted as Head Clerk had put various request notes dated 02.12.2003, 03.12.2003 and 09.12.2003 seeking cancellation of the winding order and revival of the Society before the Assistant Registrar. He also recommended appointment of Sh. U.S. Bhatnagar (A-4) as Inspecting Officer for verification of the records / documents of the Society, and further recommended a note dated 03.12.2003 for approval of freeze /final list of its members for allotment of land.
MISCDJ/ASJ 74/2021 Page No. 6 of 41CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
23. Sh U.S. Bhatnagar (A-2) posted as UDC in the RCS was accordingly appointed as Inspecting Officer by A-3 for verification of original records of the Society and to bring out its factual status. But he never visited the registered office of the Society as claimed by him, and had submitted a false inspection report dated 30.10.2003 bearing signatures of a fictitious person namely Sh. Suresh Chand as Secretary.
24. Sh D.N. Sharma (A-3) posted in the office of RCS as Assistant Registrar (North-West Zone) in furtherance of the conspiracy had endorsed the aforesaid request notes submitted by A-5.
25. Sh.Narayan Diwakar also posted in the RCS as Registrar Cooperative Societies, New Delhi acting in concert with other co-accused persons had passed the revival order dated 04.12.2003 of the Society allegedly on the basis of false and fabricated document. He malafidely had shown presence of A-3 during proceedings alongwith Mr. Mehta, Advocate and Ms. Shweta, Advocate as representatives of the Society. Whereas they both have denied ever attending such proceedings before the RCS at the time of revival proceedings wherein their presence is shown on 04.12.2003 and 25.12.2003, on behalf of the society in connection with its revival request.
26. Sh.Kamal Singh, LDC, posted in the said office was appointed as Auditor to audit the accounts of the Society without him having any knowledge regarding the audit of the accounts. He also submitted a false report under his signatures without verifying MISCDJ/ASJ 74/2021 Page No. 7 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) the records and /or cash books of the Society.
27. Thus, the case of the prosecution is that since the accused public servants who dealt with the request of the Society for its revival, had colluded with the private persons by joining hands with them as co-conspirators, none of them discharged their duties honestly, diligently and for the public good.
28. With the result, none of these public servants, who were responsible officials/officers, made any effort at all to scrutinize diligently the documents submitted on behalf of the Society, and thus, processed the file of the Society fraudulently and dishonestly with ulterior motives.
29. As per the prosecution, reports of GEQD, Hyderabad and GEQD, Shimla have further affirmed the forgeries committed in the records of the society by the accused persons namely Sh. Gokul Chand Aggarwal, Sh. Naveen Kaushik and Sh. Ashwani Sharma.
30. After completion of the investigation and on the basis of facts and circumstances which emerged during the course of investigation, charge-sheet was submitted to the concerned Court against all the 8 accused persons.
31. It may be noted here that the factual aspect of liquidation order passed by the then Dy. Registrar could not be verified either during the investigation of this case or during its trial before this Court, as the original file containing the records about registration and liquidation of the society in dispute was stated to be untraceable in the office of Registrar, Co-operative Societies.
32. Sanction for prosecution u/s 19 P.C. Act, 1988 qua MISCDJ/ASJ 74/2021 Page No. 8 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) accused Sh. U.S. Bhatnagar and Sh. Kamal Singh duly accorded by their respective sanctioning authorities and same was filed along with the charge-sheet.
33. No such sanction had been obtained qua other accused /public servants probably for the reason that they had retired from services before filing of the charge-sheet, and all these aspects have been dealt by the predecessor court in the main judgment in reference to said accused persons.
34. That vide order dated 04.03.2014, the Charges under appropriate offences were directed to be framed against all the accused persons including the present accused Sh. Gokul Chand Aggarwal.
35. That the trial of the main case was stayed by the Hon'ble Supreme Court vide its order dated 04.04.2014, which was vacated by the Hon'ble Court vide its order dated 26.04.2018 while disposing of the SLP (Crl.) No. 2507/2014.
36. In between accused Sh. D.N. Sharma expired and accordingly proceedings against him stood abated vide order dated 22.11.2017.
37. And, present accused Sh. Gokul Chand Aggarwal had stopped appearing in this case w.e.f. 13.03.2018, he accordingly after completing the requisite process as envisaged by the Code of Criminal Procedure was declared proclaimed offender vide order dated 10.07.2018.
38. As noted earlier, qua the remaining accused persons charges were framed, trial was commenced and the judgment / order MISCDJ/ASJ 74/2021 Page No. 9 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) on sentence was pronounced by the learned predecessor Court vide its judgment/ order on sentence dated 20.12.2020 and 24.12.2020 respectively.
39. That thereafter accused Gokul Chand Aggarwal was apprehended, and on 03.09.2021 an application u/s 267 Cr.P.C for production of accused Sh. Gokul Chand Aggarwal before the learned predecessor court and for commencing his trial in the present matter was moved by Sh. Rohtash Singh, IO Insp/CBI/SC- II/N.Delhi. The application was allowed, accused was produced before the learned Predecessor Court on 14.09.2021 and was taken in custody in this case.
40. That on 06.12.2021 further arguments on charge on behalf of the accused Sh. Gokul Chand Aggarwal was addressed by Sh. Abhishek Prasad, learned Amicus Curiae and learned PP for CBI.
41. On the same day i.e. on 06.12.2021 and thereafter on 13.12.2021, accused Gokul Chand Aggarwal had sought time to explore his options and take appropriate advise to plead guilty or not.
42. Thereafter on 21.02.2022, charges u/s 419/420 /468/ 471 IPC read with Section 120-B IPC & Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988 and for the offence punishable u/s 174-A IPC was framed against him, to which he pleaded not guilty and claimed trial.
43. That after due deliberations between the defence counsel and the prosecution on 21.04.2022, learned Amicus Curiae MISCDJ/ASJ 74/2021 Page No. 10 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) for accused submitted his list of witnesses to be recalled for examination / re-examination i.e namely Sh. P. Venugopal Rao ( PW-41) and Sh. Santosh Kumar, IO (PW-42) with respect to the main substantive offences ; and the witnesses namely ASI Ram Phool and SI Manish Joshi, cited to prove charges u/s 174-A IPC, qua execution of process in terms of Section 82/83 Cr.P.C .
Evidence and description of witnesses :
44. Prosecution examined in total 49 witnesses, including earlier examined during the trial of erstwhile accused persons and the process server(s) who had executed process u/s 82/83 CrP.C, to establish their case against the accused Sh. Gokul Chand Aggarwal.
45. The same according to the nature of evidence and facts intended to be proved by them can conveniently be classified into following heads:
(I) Persons who had never become member of the society but are shown to be the members of the society, and have denied their signatures appended on the application form(s) / affidavit(s) etc :-
PW-1 Sh. Daljeet Singh
PW-2 Sh. Pulkit Jain
PW-3 Sh. Deepak Talwar
PW-4 Sh. Inder Bhavan Singh
PW-5 Sh. Balwant Singh
PW-9 Sh. Ajay Gupta
PW-12 Sh. Paramjit Singh
PW-14 Sh. Badri Prasad
MISCDJ/ASJ 74/2021 Page No. 11 of 41
CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) PW-26 Smt. Sarita Jain PW-31 Sh. Balbir Singh PW-35 Sh. Harjit Singh PW-36 Sh. Tarlochan PW-40 Sh. Gurmeet Singh (II) Persons who had become members of the society in the year 1980 but denied their purported signatures on the membership application form(s) and affidavit(s) to be in their names:-
PW-6 Sh. Vinod Kumar Singhal PW-27 Sh. Sushil Kumar Singhal PW-34 Sh. Bisan Dass
(III) witnesses who are advocate(s) by profession and are allegedly shown to be present before RCS at revival proceedings :-
PW-7 Sh. S.P. Mehta
PW-8 Ms. Shweta Mishra
(IV) Witnesses from RCS office:-
PW-16 Sh. Sanjeev Bharti
PW-17 Sh. N.S. Khatri
PW-23 Sh. Ashok Bakshi
PW-24 Sh. Satya Prakash Sharma
PW-25 Sh. Jagmal Singh
PW-28 Sh. Yogi Raj
PW-29 Sh. Virender Kumar Bansal
(V) Postmen:-
MISCDJ/ASJ 74/2021 Page No. 12 of 41
CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) PW-18 Sh. Rati Ram PW-19 Sh. Ashok Kumar PW-20 Sh. Chander Pal Singh PW-21 Sh. Subhash Chander Bhardwaj PW-22 Sh. Rajender Singh (III) Other public witnesses:-
PW-10: Sh. Goverdhan Lal PW-11 :- Sh. Gaurav Gupta ( who is son of deceased Sh. Arun
Kumar Gupta, Notary Public, who denied the signatures of his father appended on the 144 affidavits of the year 2003 filed in the present case. During deposition he specifically deposed that his father had expired on 15/01/2002, and proved on record death certificate of his father as Ex PW11/A. PW-13 :- Sh. Dwarka Nath Sareen owner of the house which was shown as registered address of the Society, denied the said fact.
PW-15 :- Sh. Awnish Kumar, Stamp Vendor having denied selling the Stamp Papers on which 144 Affidavits ( D-2 volume II from page no. 1/C to 144/C ) were sworn/executed. PW-39 :- Sh. Krishan Kumar Bablani deposed that no office of Society operated at his address M-215 Vikas Puri, Delhi. PW-45 :- Sh. Ravinder Kumar Bansal, independent witness, deposed regarding the raid conducted at the address of co-accused Ashwani Sharma.
PW-46 :- Sh. R.S. Rawat from Passport Office, witness to specimen signatures of accused Naveen Kaushik. (VI) Sanctioning Authority :-
MISCDJ/ASJ 74/2021 Page No. 13 of 41CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) PW-30: Sh. Vijay Kumar qua accused U.S. Bhatnagar PW-33: Ms. Naini Jayaseelan qua accused Kamal Singh (VII) Witnesses from CBI:-
PW-32: Sh. Lakhmi Chand - Moharrar Malkhana PW-37:- Sh. Ram Kumar Aggarwal in his deposition proved the documents from RCS office vide production memo dated 22.08.2006, (D-11) .
PW- 38:- Sh. Shyam Lal Garg deposed about handed-over and taking-over memo dated 13.07.2006 related to records of the Society, (D-9).
PW-42: Sh. Santosh Kumar is the Subsequent IO. ( this witness was re-examined by the present accused Gokul Chand Aggarwal during his trial ).
PW-43 :- Sh. Binay Kumar, Initial IO. PW-44 :- Sh. Naresh Kumar Sharma, the then DSP, conducted
search in the premises of co-accused Ashwani Sharma.
(VIII) CFSL Expert/ GEQD :- PW-41 Sh. P. Venugopala Rao
(this witness was re-examined by the accused Gokul Chand Aggarwal during his trial ).
PW-47 Sh. N.C. Sood.
(IX) Witnesses qua proclamation proceedings-82/83 CrPC :-
PW-48 Sh. Manish Joshi earlier examined as CW-2. CW-1 :- ASI Ram Phool ( inadvertently mentioned as PW-42).
46. Statement of accused Sh. Gokul Chand Aggarwal was recorded u/s 313 Cr.P.C, in which he denied his involvement in the MISCDJ/ASJ 74/2021 Page No. 14 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) alleged case crime and submitted that it is a false case and witnesses have deposed against him under the influence of CBI, while feigning ignorance to other evidence/documents. He did not prefer to lead defence evidence.
Analysis and Findings
47. In the present case, prosecution had pressed charges against eight accused persons, namely Daya Nand Sharma, Ashwani Sharma, Naveen Kaushik, Narayan Diwakar, Uday Shankar Bhatnagar, Faiz Mohd. and Kamal Singh alongwith present accused Gokul Chand Aggarwal.
48. As noted earlier vide judgment dated 21.12.2020 passed by the then learned Predecessor Court, accused Ashwani Sharma and Naveen Kaushik were acquitted of all the charges framed against them.
49. Whereas, accused Narayan Diwakar, Daya Nand Sharma, Uday Shankar Bhatnagar, Faiz Mohd. and Kamal Singh were held guilty for the offences punishable under Section 120-B IPC r/w Sections 420, 468, 471 IPC and Section 13(2) r/w Section 13(1)(d) of PC Act, 1988 and also under Section 15 r/w Section 13(1)(d) of PC Act, 1988 and were sentenced separately vide order dated 24.12.2020 accordingly.
50. Present accused Sh. Gokul Chand Aggarwal had absconded and was put to trial subsequent thereto, so, the analysis and findings is confined to the case of accused Sh. Gokul Chand Aggarwal only, whereas reference in terms of the conspiracy and role of co-accused are made with respect to the findings in the main MISCDJ/ASJ 74/2021 Page No. 15 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) judgment dated 21.12.2020.
51. As per the case of the prosecution, the defunct Society SWARN CGHS was revived by the accused persons on forged and fabricated documents, but prior to the allotment of the land by the DDA, the illegal acts of the accused persons and the so called 'Management of the Society' came to light, and their designs and illegal acts could not fructify into the allotment of the land at concessional rates, in terms of their common object.
52. In support of its case prosecution has examined 47 witnesses to prove the falsity / forgery of the records of the SWARN CGHS and the conspiracy hatched by the accused persons to seek its revival on aforesaid forged documents.
53. PW-1 Sh. Daljeet Singh, PW-2 Sh. Pulkit Jain, PW-3 Sh.Deepak Talwar, PW-4 Sh.Inder Bhavan Singh, PW-5 Sh.Balwant Singh, PW-9 Sh. Ajay Gupta, PW-12 Sh. Paramjit Singh, PW-14 Sh. Badri Prasad, PW-26 Smt. Sarita Jain, PW-31 Sh. Balbir Singh, PW- 35 Sh.Harjit Singh, PW-36 Sh. Tarlochan, PW-40 Sh. Gurmeet Singh, have all deposed to state that they never became member of the SWARN CGHS at any point of time. They further denied their signatures alleged to be appended against their name in the Membership Application Form(s), Affidavit(s) filed in their name(s) showing their resignation, (D-2 / II), duly exhibited on record.
54. PW-6 Sh. Vinod Kumar Singhal and PW-27 Sh. Sushil Kumar Singhal have deposed to state that though they became members of the Society in the year 1980, but they had never tendered their resignation(s), and denied their signatures on the MISCDJ/ASJ 74/2021 Page No. 16 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Membership Application Form(s) as well as on the Affidavit(s) alleged to be in their name(s) showing their resignation(s).
55. Many of the aforesaid witnesses have not been cross- examined by the accused persons to controvert their testimony. Few were cross examined by one or two accused persons only.
56. And, during their cross-examination also nothing has come on record to doubt their veracity or to throw any cloud over their testimony. Cross-examination of witnesses was also mainly confined to the facts whether the witnesses had appeared before the CBI during investigation of the case or whether their specimen signatures were taken by the CBI officials.
57. Some suggestions were put to the witnesses on behalf of accused persons during their cross-examination. But mere suggestions, I must state that, can not take the pedestal of a substantive piece of evidence.
58. Witnesses qua GEQD opinion/report are examined as PW-41 Sh. P. Venugopala Rao and PW-47 Sh. N.C. Sood, further corroborates the fact that the documents are forged and fabricated documents, wherein they have opined that the signatures appended on the aforesaid documents are mostly in the handwriting of accused Sh.Gokul Chand Aggarwal, and not of the person(s), who are allegedly shown their author(s). Some of the said persons have also been examined by the prosecution namely PW-5 Sh. Balwant Singh and PW-9 Sh. Ajay Gupta who have categorically denied having executed or signing the said documents.
59. Significantly, accused persons have also not examined MISCDJ/ASJ 74/2021 Page No. 17 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) any defence witness or any handwriting expert to controvert the deposition of the aforesaid witnesses.
60. So, the factum of forgery and falsity of the l records of the Society SWARN CGHS stands duly proved on record beyond any iota of doubt.
Now, coming to the role of present accused Sh. Gokul Chand Aggarwal :-
61. It is the case of the prosecution that accused Sh. Gokul Chand Aggarwal is the mastermind of the entire case and he had appeared before the RCS Office impersonating himself as Suresh Chand, the Secretary of the Society, amongst other allegations of committing forgery in the records of the Society and acting pursuant to the conspiracy so hatched to revive the SWARN CGHS.
62. And to prove the said fact, prosecution has heavily relied upon the GEQD opinion stating that PW-41 has duly proved on record the forgery committed by the accused Gokul Chand Aggarwal via his expert opinion, and also the fact that the accused Gokul Chand Aggarwal had impersonated himself as Suresh Chand, Secretary of the Society, in the proceedings conducted before the RCS Office.
63. It is further stated by the learned PP that this is not the standalone case in which the present accused has committed forgery and / falsity of the documents of the Society, whereas there are numerous cases of similar nature pending against accused Gokul MISCDJ/ASJ 74/2021 Page No. 18 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Chand Aggarwal, wherein he is one of the co-accused.
64. It is further submitted that almost entire record of the Society was fabricated by this accused to give design to the illegal activities / objects in terms of the conspiracy so hatched alongwith co-accused persons, and prosecution has proved its case against the accused Gokul Chand Aggarwal beyond reasonable doubt to bring home the charges pressed against him.
65. On the other hand, learned defence counsel / Amicus Curie had strongly disputed the expert opinion(s) given by the GEQD against accused Sh. Gokul Chand Aggarwal stating it to be a weak type of evidence, nor duly supported with the " reasons for opinion ".
66. It is vehemently argued that the opinion / report qua the disputed signatures was given in the year 2006 by the GEQD, whereas the " reasons for opinion " came on record only in the year 2019, after a delay of about 13 years, and hence, the credibility of the opinion, so furnished by the expert is seriously under cloud and it can not be relied upon for any purpose whatsoever. Further-more, there is no corroboration of the same from any other source.
67. It was further argued by learned defence counsel that the prosecution has also failed to prove by leading any independent evidence that the signatures/handwritings appearing on specimen sheets from S-1 to S-222 are that of accused Gokul Chand Aggarwal or that they were voluntarily given by the accused himself. It is thus prayed that prosecution has miserably failed to prove its case against the accused beyond reasonable doubt and he accordingly is entitled MISCDJ/ASJ 74/2021 Page No. 19 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) to be acquitted of all the charges so pressed.
68. I do not concur with the submissions advanced by the learned Amicus Curie/ defence counsel for the accused that there is a delay in-formulating the reasons for opinion or that expert opinion is a weak type of evidence and can not be acted upon independently.
69. Prosecution has examined PW-41 Sh. P.Venugopala Rao, the GEQD expert, in support of its case, and it is evident from his testimony, that he has vast and substantial experience in the related field of examination of handwriting and signatures on the documents. He testified that he has an experience of about 29 years in the relevant field, and further about 16 years as an expert/examiner of the documents, and is also stated to have deposed as an 'expert' in numerous cases before different forums.
70. During his examination, he duly proved his opinion / report of examination of the questioned / specimen / sample signatures and hand writings, which is exhibited as Ex PW41/2 collectively. He also proved the supplementary opinion Ex PW41/5 qua the documents sent to him by letter dated 18.09.2006 Ex PW41/4.
71. It is true that the " reasons for opinion " for the above said examination were not sent alongwith the opinion / report by the GEQD expert in the year 2006, when the samples were so analyzed ; the same were also not filed by the IO alongwith the Chargesheet in the year 2008 ; and that the copy of the "reasons for opinion" of the above said analysis came on record only in the year 2019 during the examination of the said witness in the court.
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72. But relevant to note that PW-41, has testified that he had prepared a separate detailed "reasons for opinion" on both the occasions simultaneously, when the samples were examined by him, and had sent the same to the CBI Office in the year 2008 vide a letter dated 01.08.2008.
73. He has duly proved on record the letter dated 01.08.2008 marked as Ex PW41/9 and the " reasons for opinion '' exhibited as Ex PW41/7 & Ex PW41/8 respectively, by identifying his signatures on each page of the aforesaid documents at point A. The fact which remained un-controverted and un-rebutted during his examination as well as during the examination of Investigating Officer.
74. So, in light thereof, merely because due to some inadvertence the " reasons for opinion " were not filed on record alongwith the Analysis report is by itself no ground to look it with suspicion or to discard all-together the testimony of the expert /examiner of the documents.
75. In fact, Sh. P.Venugopala Rao (PW 41) has given a detailed analysis of his examination in terms of his 'reasons for opinion No. CH-263 Dated 31.08.2006 Ex. PW41/7 and 'supplementary opinion No. CH-263/2006 Dated 22.09.2006 duly proved on record and exhibited as Ex PW41/8 and, I quote some findings in reference to para 2 of the Opinion thereto : -
75.1 "Characteristic similarities in the minute and inconspicuous features are observed in the formation of various characters of the questioned writings when compared with that of MISCDJ/ASJ 74/2021 Page No. 21 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) the standard writings such as : an inward curved commencing stroke alongwith formation of a loop in 'S' hooked commencement of 'u' curved commencement and finish as well as extent of the parts in 'r' an elongated initial part of 'e' showing a blind eyelet ;
compressed nature of the curved part of 'h' alongwith extended straight finish as observed in 'Suresh'.
75.2 Formation of an eyelet in 'C' short extent of the staff of 'h' and manner of simplification of the characters, an open oval of 'd' alongwith a straight retrace in the staff in the word appearing as 'Chd' ....
....
75.3 In short, there are no basic differences between the writing habits of the questioned writings and those of the standard writings on comparison. The aforesaid similarities in the writing habits are significant and sufficient and their collective consideration leads me to the opinion of common authorship".
76. Indicating thereby, that the accused Gokul Chand Aggarwal had represented himself as Suresh Chand (Secretary of the SWARN CGHS) and signed number of documents in his fictitious 'Avatar'.
77. Further, reference to Para 2 of the Supplementary Opinion of PW-41 exhibited as Ex PW41/8 be also made here : -
ii) para 2 of Supplementary opinion 77.1 Formation of 'H' with a twist at the terminal part of the
staff ; tapered hooked commencement and finish of 'U' direction of MISCDJ/ASJ 74/2021 Page No. 22 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) finish of the terminal part of 'R' a twist at the buckle and shape of the curved part ; formation of a retrace in 'E' and movement of strokes showing tapered hooked finish ; formation of a short retrace in 'A' and direction of finish, formation of retraces in 'N' and relative location of the parts ; an inward hooked commencing stroke of 'C' rotundity of the curved part of 'D' and its relative location as observed in 'SURESH CHAND.
77.2 In short, there are no basic differences between the writing habits of the questioned writings and those of the standard writing on comparison. The aforesaid similarities in the writing habits are significant and sufficient and their collective consideration leads me to the opinion of common authorship.
78. During his cross-examination, witness PW-41, admitted to the fact that the characteristics such as movement, skills, speed, line, quality, slant, spacing alignment, relative size, proportion of letters, their combinations, nature of commencing and terminals strokes, etc. have not been mentioned in the reference opinion nor in the "reasons for opinion" but the witness had denied the suggestions that for that reasons his opinion is false or it is a manufactured opinion or not based upon scientific examination.
79. In fact, witness specifically stated that he is not personally acquainted with the handwritings and signatures of accused Gokul Chand Aggarwal, nor his specimen handwritings and signatures were taken by the CBI in his presence, and went on further to depose that his examination on the samples was duly carried out via scientific methods and instruments, and that another MISCDJ/ASJ 74/2021 Page No. 23 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) examiner Sh. Narender Singh had also concurred with his analysis / examination of the samples, which were also analyzed by him independently and separately.
80. PW-41 in his reports has given minute details of each of the relevant alphabets of the disputed / questioned signatures viz a viz specimen signatures of accused Gokul Chand Aggarwal, be it 'S' 'U' 'R' 'E' 'S' 'H' or 'C' 'H' 'A' 'N' 'D' separately leaving no room for any ambiguity in that regard.
81. GEQD has also opined that the signatures purported to have been signed in the name of Suresh Chand, alleged Secretary of SWARN CGHS SOCIETY in the documents exhibited as Ex.PW24/1 (D-II) collectively at points :-
- Q 1202/1 to 1204/1,
- Q 1206/1 to 1227/1,
- Q 1228/1 to 1315/1,
- Q 1317/1 to 1378/1,
- Q 1380/1 to 1472/1, have been signed by present accused Gokul Chand Aggarwal.
81.1 PW-41 has further opined that the signatures appended at :-
- Q-1 to Q-40,
- Q-40 to Q-61 and
- Q-150 to Q-261 (excluding Q-119 and Q-120) part of ( D-2/I ) ; and at :
- Q-62 to Q-104,
- Q-105 and Q-106, MISCDJ/ASJ 74/2021 Page No. 24 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
- Q-263 to Q-401, all part of D-2 (II ), in the name of Suresh Chand, has also been signed by the present accused Gokul Chand Aggarwal, purportedly acting as Suresh Chand, Secretary of the SOCIETY.
82. Further, it may also be noted that in terms of the GEQD opinion, the present accused Gokul Chand Aggarwal has also signed on number of Affidavits tendered in the name of executant(s) and/or purported member(s) of the Society.
83. Some of the alleged questioned signatures may be noted herein for appreciating and indicating the scale of forgery committed by the present accused Gokul Chand Aggarwal i.e. to be specific, signed as -
1) Shiv Kumar at Q-709, D-2/1/P-185/C ;
( declaration Form for nomination of Management
Committee )
2) Raj Kumari at Q-712, D-2/1/P-184/C ;
( declaration Form for nomination of Management
Committee )
3) Om Prakash at Q-713, D-2/1/P-283/C ;
(Proposal Form to propose name of Parveen Kumar in Management Committee )
4) Vinod Kumar at Q-714, D-2/1/P-182/C ;
( Nomination Form / Proposal Form for proposing the name of Suresh Chand in Management Committee ).
5) Jaspal Singh at Q-715, D-2/1/P-182/C ;
( Nomination Form / Proposal Form for proposing the name of Suresh Chand in Management Committee ).
MISCDJ/ASJ 74/2021 Page No. 25 of 41CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
6) Munish at Q-716, D-2/1/P-181/C ;
( Nomination Form / Proposal Form for proposing the name of Alamjit Singh Bedi in Management Committee ).
7) Shri Ram at Q-718,D-2/1/P-180/C ;
( Nomination Form / Proposal Form for proposing the name of Jagdish Kumar in Management Committee ).
8) Jagdish Kaur, at Q-720, D-2/1/P-180/C ;
( Declaration Form for post of Management Committee ).
9) Writing on Proceedings Register Q-723 to Q-728, (D-2) available in RCS file ;
10) Signature as Jai Ram Sharma Q-730 to Q-745 and Q-747, signed as Management Committee Member.
11) Photocopy of Registration Certificate Q-722 to Q-893, (D-2, P-173/C).
12) Photocopy of Bye-Laws (Writings) Q-903, (D-2, P-162/C) are also opined to have been signed by Sh. Gokul Chand Aggarwal, amongst other several like at :-
Q-565, Q-568, Q-569, Q-572 to Q-579, Q-581,Q-584.Q- 586,Q-588 to Q-591,Q-593 to Q-597, Q-599 to Q-601, Q-604 to Q-609, Q-611, Q-612,Q-614,Q-615,Q-617,Q-619,Q-621, Q-623, Q-625 to Q-630, Q-633 to Q-638, Q-640 to Q-644, Q- 647, Q-650 to 652, Q-655 to 658, Q-660, Q-661, Q-663, Q- 665, Q-666, Q-668 to Q-671, Q-675, Q-677, Q-683 to Q-686, Q-690, Q-695 to Q-697, Q-701, Q-703, Q-704.
84. It is also evident from the original Proceedings file from the office of RCS page no 7/9 part of Ex. PW17/A and order MISCDJ/ASJ 74/2021 Page No. 26 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) dated 05.12.2003, vide which the Society was revived, that the accused Gokul Chand Aggarwal had appeared as Suresh Chand, Secretary of the Society, during the revival proceedings dated 02.12.2003 before the Asstt. Registrar, RCS, wherein his signatures were also appended at Q-1 and in terms of the expert opinion, the same have been signed by accused Gokul Chand Aggarwal.
85. Further, the application dated 08.08.2003 Ex.J-1 (undisputed document), part of Ex. PW43/2 (D-2i ) seeking revival of the SWARN CGHS allegedly filed on behalf of the Secretary Sh. Suresh Chand is also a false document, wherein the accused Gokul Chand Aggarwal has purportedly signed as the Secretary at point Q-61, in terms of opinion furnished by the Expert.
86. It may further be noted that initially, in the list of the so called members of the society furnished before the RCS Office, the name of Suresh Chand was no where mention as its member and, it was only subsequently that his name figured as a member of the Society against membership no.135. How and when, it was approved by the committee, the record is completely suspicious and silent in that regard.
87. So, as is evident from the opinion furnished by the GEQD experts and the evidence adduced by the prosecution, it is not one or two signatures which are alleged to be under the hand of the present accused but there are numerous signatures, running into more than 400, pursuant to which the records of the Society were manipulated, false documents in the form of Membership Application Form, Affidavit(s), Receipt(s), Resignation letter(s), MISCDJ/ASJ 74/2021 Page No. 27 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Refund voucher(s), General Body Meeting(s) and Proceeding(s) Register of the Society were created with forged signatures and hand-writings of the executant(s) thereto.
88. As discussed above, the Opinion/Report is accompanied and supported with 'Reasons for the Opinion' thereto, wherein detailed analysis carried out by the expert via scientific methods has been highlighted. The 'Reasons for the Opinion' was duly proved on record during his testimony and exhibited as Ex PW-41/7 and Ex PW41/8.
89. At this stage, it would be profitable to refer to one of the land mark judgment on the issue at hand titled as Murari Lal Vs. State of UP 1980 AIR 531, wherein the Hon'ble Supreme Court has elaborately discussed the governing principles of an expert, its admissibility, relevancy and evidentiary value. The observations of the Hon'ble Supreme Court are quoted here for ready reference :-
"We will first consider the argument, a stale argument often heard, particularly in criminal courts, that the opinion-evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with observation that the expert is no accomplice. There is no justification for condemning his opinion-evidence to the same class of evidence as that of an accomplice and insist upon corroboration.
True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of MISCDJ/ASJ 74/2021 Page No. 28 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses-the quality of credibility or incredibility being one which an expert shares with all other witnesses-, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons.
It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty `is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (vide Lord President Cooper in Dacie v. Edinbeagh Magistrate : 1953 S. C. 34 quoted by Professor Cross in his Evidence).MISCDJ/ASJ 74/2021 Page No. 29 of 41
CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered.
In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted."
(Emphasis supplied)
90. It is thus abundantly clear that there is no rule of law which debars the court to act upon the opinion report / evidence of an handwriting expert, if it appears to be convincing and there is nothing on record to doubt its veracity.
91. Furthermore, we must not lose site of the fact that PW- 41 P.Venugopala Rao and PW-47 N.C. Sood, are independent and neutral witnesses working in the CFSL. They have their own independent status. Nor are they under the control or influence of MISCDJ/ASJ 74/2021 Page No. 30 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) the prosecuting agency, nor are they familiar with the accused persons as such, nor are aware about the identity of the persons whose signatures/handwritings are under their analysis / examination.
92. Therefore, no prejudice or biased can be attributed to them or their opinions / report of the examination of the questioned / samples sent for analysis.
93. To say, thereafter, that it is substantially uncorroborated and must not therefore be acted upon cannot be legally sustained in light of the dicta laid down by the Hon'ble Supreme Court referred above. The arguments of the learned counsel for accused Gokul Chand Aggarwal on that count accordingly stand rejected.
94. Nextly, the argument of the defence counsel impeaching the validity of the specimen sheets / signatures, or that it was not taken legally and voluntarily, also appears to be unconvincing for the reason that IO Santosh Kumar examined as PW-42 has specifically deposed to say that specimen signatures / hand writings of the accused were taken on said specimen sheets, and he has correctly identified his signatures and official Seal at point A on each of the said sheets, duly exhibited as PW42/6 (colly.).
95. Worth to mention that Police official or for that matter Investigating Officer is also a competent witness by all parameters and legal standards. His testimony can not be looked with suspicion simplicitor on that count ; more-the-so, when nothing has come on record during his cross-examination to raise a doubt regarding MISCDJ/ASJ 74/2021 Page No. 31 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) taking of specimen signatures / handwritings of accused Gokul Chand Aggarwal, who at the relevant point of time was running in custody in some other cases registered/investigated on similar facts by the CBI..
96. Simply because no independent witness is examined to prove its execution or act of involuntariness on the part of the accused is no ground to disbelieve the testimony of investigating officer.
97. Besides that accused himself has also not controverted the said specimen sheet / signatures taken by the IO during the trial of the case. Simply to say that it was an involuntary act or no order from the Court concerned was taken to take the specimen signatures is no ground to discard the evidence of specimen sheets on that count.
98. Reference in that regard, qua the status of Police witnesses, be usefully made to a recent judgment of Hon'ble Supreme Court in a case titled as Rizwan Khan Vs. State of Chhatisgarh Crl. Appeal no. 580/2020 dated 10.09.2020.
Now, coming to the Conspiracy part.
Though it has been dealt by the learned predecessor court in detail at the time of passing the final judgment against erstwhile accused persons, suffice herein to state that the conduct, the act and the omissions on the part of the RCS officials namely Narayan Diwakar (A-2), Uday Shankar Bhatnagar (A-4), Faiz Mohd.
MISCDJ/ASJ 74/2021 Page No. 32 of 41CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) (A-5) and Kamal Singh (A-8), who already stands convicted for the offence of Conspiracy read alongwith other offences, indicate that the case file of the Society concerned was processed in a clandestine manner with dishonest intention, blatantly overlooking the glaring discrepancies evident on the records of the Society produced before the RCS officials.
99. The gist of offence of criminal conspiracy is an agreement to break the law. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by accomplishment of its object or by abandonment or frustration.
100. It may also be noted that the Conspiracy is invariably hatched in secrecy and as such direct evidence is seldom available. Similarly, agreement of conspiracy can also be proved either by direct evidence or by circumstantial evidence or by both. It is not necessary that the prosecution has to bring on record express proof of the agreement so entered, the acts and the conduct of the parties appreciated in correct prospective go a long way to infer and establish the conspiracy.
101. The manner in which the file of the Society was reconstructed without even making an efforts to verify the said factual aspects ;
- the fact that Society was dormant for about 25 years or so and the revival application moved thereafter in the name of the MISCDJ/ASJ 74/2021 Page No. 33 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Secretary, who also happens to be a fictitious person, per-se was sufficient to raise the alarm in the mind of the RCS Officials ;
- the manner in which A-5 had hurriedly put notes continuously seeking its revival and cancellation of liquidation order and further recommending for the approval of final list ;
- the manner in which A-2 has submitted a false inspection report dated 30.10.2003 without factually verifying and visiting the office of the Society as claimed by him ;
- the manner in which A-3 had endorsed the aforesaid request and approved the acts keeping an blind eye ;
- the manner in which A-5, the Registrar of RCS, passed the revival order and reflecting the presence of advocates PW-7 Sh. S.P Mehta and PW-8 Ms. Shweta Mishra, alongwith present accused Sh. Gokul Chand during the revival application of the Society, and who have also categorically denied ever appearing before the officials of RCS at any point of time or ever representing the SWARN CGHS Society or at any forum, goes a long way to prove the factum of existence of the Conspiracy and the fact that all the accused persons were acting in concert with each other with the intention to revive the defunct Society on the basis of forged and fabricated documents with ulterior objectives.
102. Further, I also find no reason to differ from the findings and the observations made in the main judgment dated 21.12.2020 regarding the role of co-accused (RCS officials ) viz a viz accused Gokul Chand Aggarwal and the fraudulent manner in which the MISCDJ/ASJ 74/2021 Page No. 34 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) revival proceedings were conducted to bring forth the conspiracy, so hatched by the accused persons.
103. The endorsed findings of the said judgment are quoted herein : -
"42. The manner in which the application for revival of the society was processed in the RCS office as indicated by the above mentioned notes clearly reflects that the entire process was a mere formality or an eye wash and it had already been decided by the officers/officials posted in that office at the relevant time that the society has to be revived at any cost. Manifestly, there was no actual, honest and diligent effort to verify the records produced on behalf of the society including its membership list notwithstanding the fact that the revival was sought after about 24 years from the date when the society had been put under liquidation. No effort was made to check the identity of the person who had submitted the revival application on behalf of the society i.e. Suresh Chand as well as the other Managing Committee Members.
43. The revival application has been signed by one Suresh Chand in the capacity of the Secretary of the Society. His signatures also appeared at point Q-1 on the margin portion against note dated 02.12.2003 Ex.PW17/A indicating that he had produced the original records of the society before accused Faiz Mohd. on that day for verification. However, no such office bearer of the society namely Suresh Chand could be traced during the entire investigation in this case. As per the expert opinion of GEQD, Hyderabad Ex.PW41/2, these two signatures in the name of Suresh MISCDJ/ASJ 74/2021 Page No. 35 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Chand along with the several other signatures on the records of the society in the name of Suresh Chand have been found to have been appended by accused Gokul Chand Aggarwal. It is, thus, manifest that accused Gokul Chand Aggarwal was fictitiously acting as the Secretary of the Society under the assumed fictitious name Suresh Chand and he had appeared before accused Faiz Mohd. on 02.12.2003 along with the original records of the society".
44......................................
45. One wonders as to where was the hurry in reconstructing the file of the society from unverified copies submitted on behalf of the society, without making strenuous effort to trace the file and without initiating the departmental eqnuiry in this regard. The file was an official record and its disappearance from the office could not have been taken so lightly. Loss or misplacement of official record from a Government office is a very serious issue which cannot be ignored or brushed under the carpet without fixing the responsibility on the delinquent officials. The revival of society could have waited for few more days or months. Since it was already lying dormant for about 24 years, a few more days a months would not have made any difference at all. The conduct of the Registrar Narayan Diwakar and his subordinate in the office on this issue raises a well founded suspicion that the file of the society may have been deliberately concealed and thrown away so as to make out a case for its misplacement/loss which would make the process of revival of the society easier on the basis of fictitious/forged documents.
MISCDJ/ASJ 74/2021 Page No. 36 of 41CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
46. A new file appears to have been reconstructed on the basis of the records submitted on behalf of the society by taking its genuineness for granted. The identity of the person submitting the record namely Suresh Chand was neither checked nor verified at any step by any of officials/officers particularly accused Faiz Mohd., U.S. Bhatnagar, Kamal Singh and Narayan Diwakar. It is evident that none of these accused, who dealt with the revival application of the society, acted bonafidely, honestly, diligently and for the public good. In fact, they do not appear to have been discharging their functions as a public servants but only as the aids/facilitators for the private accused who had hatched the conspiracy with the object of getting the society revived on the basis of fictitious/forged documents. It is clear from their conduct that they too had joined conspiracy and thus were dancing to the tunes of private accused particularly Gokul Chand Aggarwal, who was the main conspirator and the brain behind the entire conspiracy.
Emphasis Supplied.
104. Thus, in light of my above discussion, I have no hesitation to say that the entire exercise of the revival proceedings of the SWARN CGHS was carried out by the said accused persons including the present one through a well hatched conspiracy in connivance with each other, on the basis of forged and fabricated records, wherein accused Gokul Chand Aggarwal impersonated himself as Suresh Chand, the alleged Secretary of the Society SWARN CGHS.
MISCDJ/ASJ 74/2021 Page No. 37 of 41CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) NOW COMING TO THE OFFENCE U/S 174-A I.P.C
105. As noted earlier, accused Gokul Chand Aggarwal had absconded during the course of trial of the present case w.e.f. 13.03.2018, and he accordingly was declared proclaimed offender vide order dated 10.07.2018, after completing the requisite process as envisaged by the Code of Criminal Procedure.
106. Relevant charge under 174-A IPC was framed in terms thereof. In support of its case prosecution has examined CW-1 ASI Ram Phool, the process server, who had executed the process u/s 82 CrP.C upon the accused Gokul Chand Aggarwal.
107. The essential requirements u/s 82 Cr.P.C to bring home the offence u/s 174-A IPC may be quoted here for ready reference :-
82. Proclamation for person absconding.
(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows:-
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;MISCDJ/ASJ 74/2021 Page No. 38 of 41
CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village ;
(c) a copy thereof shall be affixed to some
conspicuous part of the Court- house ;
(ii) the Court may also, if it thinks fit, direct a copy of
the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (3) .............................................
108. CW-1 deposed that pursuant to process issued by the Court u/s 82 Cr.P.C and marked to him for execution, he visited at the given address of the accused Gokul Chand Aggarwal, where the accused was not found and his wife was also not aware about his whereabouts ; CW-1 thereafter pasted a copy of proclamation under section 82 Cr. P.C on the main gate and also pasted another copy on the Notice Board of the Society in the presence of its the then President namely Mr. Khatri. Both the reports were taken on record via Ex CW1/A and Ex CW1/B.
109. During cross examination, CW1 re-iterated the facts regarding his visits at the given addresses of the accused, and executing the process against accused Gokul Chand Aggarwal in terms thereof.
110. However, it is relevant to note that CW-1 himself in his examination before the Court stated that he only went to the flats MISCDJ/ASJ 74/2021 Page No. 39 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) bearing Flat No. 603 and 703 of Ashoka Smrat Apartment and pasted the summons there, when accused was not found, and another on the Notice Board of the Society.
111. His statement is completely silent on the aspect of beatings of drums/Munadi or the process being executed and affixed at the conspicuous place in the Court House, the other two essential and mandatory conditions for valid execution of proclamation, as required in terms of Clause (2) of Section 82 Cr.P.C.
112. During his cross-examination also he admitted to the fact that besides visiting the aforesaid two flats at Ashoka Samrat Apartments, Rohini, Delhi, he did not visit at any other place to execute the process.
113. The prosecution has also failed to examine the said President namely Mr. Khatri of the Society to prove execution of the process or its proceedings in the manner alleged to have been executed by the Process Server. The person who had allegedly carried out the Beatings of Drums/Munadi was also not examined nor the person who had issued the said bill filed alongwith the execution report for the reasons best known to the prosecuting agency.
114. Though, he deposed to rely upon his execution report which contained a letter issued by the then President of the Society and another document alleged to be a bill submitted by the "Band- Wala" for the "Munadi'' done by him.
115. But, filing of documents on record without examining its author/executant does not tantamount to proof of the document, MISCDJ/ASJ 74/2021 Page No. 40 of 41 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) and the same can not be read in evidence for any purpose, it has no evidentiary value.
116. Thus, in the totality of facts and circumstances of the case, in my considered opinion, prosecution has proved its case against the accused Gokul Chand Aggarwal beyond reasonable doubt for the offences punishable under Section 419/420/468/471 IPC read with Section 120B IPC & Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988. But the prosecution has failed to prove the charges alleged against the accused for offence punishable u/s 174A IPC.
DECISION
117. Having regard to the above discussion and the conclusion arrived at, the accused Gokul Chand Aggarwal is hereby held guilty for the respective offences committed by him under Section 419/420/468/471 IPC read with Section 120B IPC & Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988.
118. And is acquitted for the offence punishable under Section 174-A IPC.
119. Let accused Gokul Chand Aggarwal be heard on the quantum of sentence in terms of his conviction on 04.11.2022. Announced in the open court on this 31s Day of October, 2022.
(ANIL ANTIL) SPECIAL JUDGE, PC ACT, CBI-15 ROUSE AVENUE DISTRICT COURT NEW DELHI MISCDJ/ASJ 74/2021 Page No. 41 of 41