Delhi District Court
Cbi vs Narayan Diwakar & Others (Shri Shiv Puri ... on 7 November, 2016
CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS)
IN THE COURT OF SH. PAWAN KUMAR JAIN,
SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT,
ROHINI COURTS COMPLEX, DELHI
IN THE MATTER OF:
CBI Case No. 78/2016 (Old No. 24/2008)
CNR No. : DLNW01-000063-2006
FIR No. : RC-11(S)/2005/CBI/SCB-I/
New Delhi
U/Sec.: 120-B/420/511/468/471 IPC &
Sec. 13(2) r/w 13 (1) (d) of PC Act 1988 &
Sec. 15 r/w 13 (1) (d) of PC Act, 1988 &
substantive offence thereof
Police Station: CBI/SCB-I/New Delhi
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
VERSUS
CBI No. 78/2016 (Old No. 24/2008) Page 1 of 144
CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS)
1. Narayan Diwakar
S/o Late Sh. Chhathi Lal
R/o G-30, Masjid Moth,
Greater Kailash,
New Delhi-48.
.........Accused No. 1
2. Gokul Chand Aggarwal
S/o Late Sh. Jagdish Prasad
R/o A-603, Ashoka Apartments
Sector-9, Rohini,
Delhi-85.
.........Accused No.2
3. Maan Singh
S/o Late Sh. Devi Singh
R/o RZ-73, Subhash Park,
Uttam Nagar,
New Delhi-59.
(proceeding abated due to death vide
order dated 22.09.2009)
.........Accused No. 3
4. Ram Nath
S/o Late Sh. Kishan Lal
R/o H. No. 1/92, Gali No. 9
West Guru Angad Nagar
Laxmi Nagar,
New Delhi.
.........Accused No. 4
CBI No. 78/2016 (Old No. 24/2008) Page 2 of 144
CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS)
5. Faiz Mohmad
S/o Late Sh. Ghulam Mohd.
R/o 4794, Ahata Kedara,
Pahari Dheeraj
Delhi-6.
.........Accused No.5
6. Prahlad Kumar Thirwani
S/o Late Sh. Mati Ram
R/o 348-E, Pocket-2,
Mayur Vihar, Phase-I,
Delhi-91.
.........Accused No. 6
7. Narender Singh Khatri
S/o Late Sh. Lal Singh Khatri
R/o 89-B, Shakti Khand-I,
Indirapuram,
Ghaziabad, UP.
(Discharged vide order dated 30.10.2012)
.........Accused No. 7
Date of Institution : 04.12.2008
Date of judgement reserved on : 17.10.2016
Date of pronouncement of judgement : 03.11.2016
CBI No. 78/2016 (Old No. 24/2008) Page 3 of 144
CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS)
Appearance: Sh. Prabhat Kumar, Ld. Senior Public
Prosecutor for CBI
Sh. Abhishek Prasad, Advocate, counsel for
A1 and Amicus-curiae for A2
Sh. S. K. Bhatnagar, Advocate, counsel for
A4, A5 & A6
J U D G E M E N T :-
1. Facts in brief as unfolded from the charge-sheet are as under:-
(i) That in pursuance to the order dated August 2, 2005 passed by High Court of Delhi in WP(C) No. 10066/04, CBI had registered Preliminary Enquiry against six Cooperative Group Housing Societies (CGHSs) including Shri Shiv Puri CGHS (in short Society).
On the basis of outcome of the preliminary inquiry, an FIR was registered against the Society in question for the offence punishable under Section 120B r/w 419/420/467/468/471 IPC and 13(2) r/w 13(1)
(d) of Prevention of Corruption Act, 1988 (in short PC Act).
(ii) It was alleged that the Society was registered with RCS on June 4, 1983 vide registration No. 578/GH, with its correspondence address "110, Sri Niwas Puri, Delhi-65". However, the said Society was wound up vide order dated March 13, 1989 issued by Mr. Satish Mathur, the then Dy. Registrar (GH).
CBI No. 78/2016 (Old No. 24/2008) Page 4 of 144CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS)
(iii) It was alleged that an application dated January 1, 2004 was submitted before the AR (South) under the signature of Mr. K. P. Singh, President of the Society wherein it was stated that the Society was registered on June 4, 1983 and same was wound up vide order dated March 13, 1989 on the ground that AGM was not called. It was urged that as the shortcomings, resulting in winding up of the society had already been removed, request was made to cancel the winding up order.
(iv) It was alleged that Mr. Maan Singh, the then Asstt. Registrar (South) i.e. A3 got the said letter/application put up before himself with a note dated January 5, 2004 of Dealing Assistant. It was recited in the said note that since the main file of the society was not traceable and Secretary of the society had applied for revival of the society, it was purposed to issue a circular to all the Zones with a direction to search the file within 15 days and in case they fail to search the file within 15 days, it would be presumed that the file was not traceable. It was also purposed to conduct inspection to bring out the actual position of the society. The said note was forwarded by Maan Singh (A3) to the RCS Narayan Diwakar (A1) through Joint Registrar (South). A1 approved the said note on January 7, 2004.
(v) It was alleged that pursuant to the said note, a circular was issued by A3 on January 12, 2004. On the same day, accused Ram Nath (A4) was appointed as Inspecting Officer to conduct inspection to ascertain the factual position of the society and obtain relevant documents.
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(vi) It was alleged that accused Ram Nath (A4) submitted his undated report in the office of RCS wherein it was alleged that he visited the office of the society, where Mr. Hem Raj, Secretary of the Society met him and produced all relevant records of the society. It was further stated that he had collected the list of 149 members from Mr. Hem Raj. He also recited in his report that as per the minutes of GBM held on September 28, 2003, society had shifted its office from 'B-53/C, Kailash Colony, New Delhi-110048' to '110, Sri Niwas Puri, New Delhi-65'. Alongwith his report, he also annexed copies of un- audited accounts, proceedings of the last meeting dated September 30, 2003 and papers of election dated September 28, 2003. The list of members which was enclosed by accused Ram Nath (A4) alongwith his report bears the signatures of Secretary, President and Vice President of the society. The said list was later on signed by the accused Maan Singh (A3). The documents such as proceedings, Bye- Laws of the Society, list of MC members, registration certificate and accounts of society were certified/signed by the Secretary and/or President and Vice President of Society.
(vii) It was alleged that during investigation, it was revealed that all the above signatures were made by accused Gokul Chand Aggarwal (A2). It was further revealed that A2 had also signed the signatures of Mr. Ram Avtar, Election Officer and he also signed the signatures of Mr. R. G. Gupta, Ms. Asha Devi, both candidates, on their nomination forms. Further, address of the society as mentioned by A4 in his report was found non-existent.
(viii) It was further alleged that accused Gokul Chand CBI No. 78/2016 (Old No. 24/2008) Page 6 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Aggarwal (A2) had fraudulently certified the copy of registration certificate, which was enclosed by accused Ram Nath (A4) along with his report, because the Joint Registrar under whose signature the said certificate was purportedly issued informed the CBI that the original certificate did not bear his signature. Similarly, A4 enclosed the forged copy of winding up order as Mr. Satish Mathur informed the CBI that the said order did not bear his signature as he was not even posted in RCS office on March 13, 1989 when the said order was allegedly shown to have been signed by him. Accused Gokul Chand Aggarwal also signed the signature of office bearer of society on the report of A4. It was, thus alleged that A4 had submitted a bogus report as he was in conspiracy with A2.
(ix) It was alleged that on receipt of report, Dealing Assistant put up a note on February 4, 2004 wherein it was recited that since the main file could not be traced out and, if agreed, the documents submitted by A4 alongwith report may be taken on record in order to reconstruct the file. The said note was forwarded by the accused Maan Singh (A3) to the RCS on the same day through his Reader. Accordingly, A1 approved the said note on the same date i.e. February 4, 2004.
(x) It was alleged that Reader to the accused Narayan Diwakar (A1) issued a letter to the society on February 5, 2004 directing the President/Secretary of the society to attend the office on February 12, 2004 along with original records. As per note dated February 12, 2004, Mrs. Rita Kaul, Advocate represented the society before RCS (A1). A1 directed South Zone to verify the record CBI No. 78/2016 (Old No. 24/2008) Page 7 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) produced by the society and further directed AR (South) to conduct the spot verification of membership and submit the report on the next date of hearing i.e March 4, 2004.
(xi) It was alleged that from the note it is not clear whether all the original records were produced by the society before RCS or any other officer. However, on February 20, 2004, A3 appointed accused Faiz Mohd. Grade-II (A5) as Inspecting Officer for physical verification as well as for door to door survey of members of the society. The copy of the list of the members was also given to A5 along with the order.
(xii) It was alleged that though ten days time was given to submit the report, yet A5 submitted his report within five days stating that he had conducted the physical verification on random basis and collected photocopies of the relevant documents and obtained certificate/undertaking from the members of the society, which he enclosed along with his report. He also collected the copies of share certificates from the members at the time of physical verification. It was alleged that the said share certificates were shown to be signed by Secretary, President and Treasurer of society. But during investigation, it was revealed that all the signatures were made by accused Gokul Chand Aggarwal (A2). A2 also made the signature of two members namely Mrs. Sarita (MC-206) and Ms. Asha Devi (MC-
171) on their certificates/undertakings.
(xiii) It was alleged that during investigation, it was revealed that none of the 149 members was found available at the CBI No. 78/2016 (Old No. 24/2008) Page 8 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) address mentioned in the list. During investigation, it was further revealed that most of the members were either non-existent or members were not found residing at the given address. It was alleged that since the said list was submitted after submission of application for revival, it shows that A4 and A5 had submitted their reports without conducting any inspection or verification.
(xiv) It was alleged that on February 20, 2004, accused Maan Singh (A3) had issued a letter to the society asking its President/Secretary to furnish the original records of the society for verification on or before February 27, 2004. As per note dated February 26, 2004, Mr. Hem Raj, Secretary of the Society attended the office along with the record/documents and the same had been shown to be taken on record and it was cross-checked. However, during investigation, Dealing Assistant Mrs. Sunanda (PW6) informed the CBI that the said note as well as other notes were prepared by her at the direction of A3 as at that time, she was new in RCS office. She also informed the CBI that neither Mr. Hem Raj nor accused Gokul Chand Aggarwal had ever appeared before her along with the documents. It was alleged that in the said note, she also sought approval of AR(S) for submitting a detail proposal "as per the directions of worthy RCS", which was approved by AR(S) on the same day.
(xv) It was alleged that on March 1, 2004 Mrs. Sunanda, Dealing Assistant submitted a detailed note running into 12 pages requesting the RCS to consider the request for revival of the society and to approve the freeze list of 149 members. The note was CBI No. 78/2016 (Old No. 24/2008) Page 9 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) forwarded by A3 directly sent to the Reader to RCS without routing it through Dy. Registrar or Joint Registrar. It was alleged that AR(S) or any other officer should not have given any weightage to the GBM or election of the society as the society had already been wound up. Similarly, no effort was made by any officer/official to confirm the genuineness of registration certificate or winding up order of the society.
(xvi) It was alleged that A3 forwarded the detailed note of the Dealing Assistant without raising single query despite the fact that the original file of the society was missing and the society made an application for its revival. It was alleged that in such circumstances greater caution was required on the part of A3.
(xvii) It was alleged that the Reader to A1 did not sign the said note in token of having seen the file. The next note was written by A1 on March 4, 2004 wherein he had shown the presence of Mrs. Rita Kaul, Advocate on behalf of the society. However, no Vakalatnama of Mrs. Rita Kaul was found in the file. Advocate was not asked to sign the note-sheet either on February 12, 2004 or March 4, 2004. During investigation, Mrs. Rita Kaul denied her appearance on the said date before RCS.
(xviii) Though RCS had written in his note that AR (S) had verified each and every paper whereas A3 denied the same. Similarly, A1 had also falsely written that the documents regarding holding of election were found in order and same were as per DCS Act/Rules. But no provision of the Act/Rules which gives cognizance to any CBI No. 78/2016 (Old No. 24/2008) Page 10 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) meeting or election of the society, once society has been wound up, is found.
(xix) It was alleged that though A1 in his note dated March 4, 2004 mentioned that proper procedure was not followed at the time of winding up of the society, yet he did not indicate how he came to know about the same when the main file was not traceable. It was further alleged that the remarks of A1 that there was nothing on the record that the power under Section 63 of DCS Act had been delegated to Dy. Registrar by the RCS was unwarranted and unjustified as during investigation, it was revealed that the said power was delegated to Dy. Registrar vide order dated January 23, 1986 by Mr. G. P. Sewalia, the then Registrar. It was further alleged that similarly, the observations of A1 that sufficient opportunities were not given to the society to reply the show-cause notice or to rectify the shortcomings, were based on conjectures and surmises. It was alleged that RCS passed the revival order on March 10, 2004.
2. It was alleged that during investigation, it was revealed that numerous points that were mentioned by A1 in his revival order dated March 10, 2004 were found wrong and unsubstantiated. Detail of the same is as under: -
(a) That the presence of Mrs. Rita Kaul was shown during the proceeding whereas she never appeared before him.
(b) That there is no provision that wound up Society could call AGM and hold election or take decision to change its registered CBI No. 78/2016 (Old No. 24/2008) Page 11 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) office.
(c) That Mr. Maan Singh (A3) informed the CBI that he had not verified the original records as mentioned by A1 in his report.
(d) That A1 cancelled the winding up order without having access to any of the authentic record of the Society. Since, the copy of the winding up order used to be sent to various sections of the RCS, correctness of the winding up order and registration of the Society could have been verified by the RCS from the office record.
(e) That unknown persons were allowed to represent the Society being the President/Secretary without taking their ID documents on record.
(f) That A1 and A3 should have given weightage to Rule 105 of DCS Rules but no such weightage was given.
(g) That A1 did not pass the speaking order, in support of his opinion that Society should continue to exist.
(h) That A1 had blindly followed the instructions of predecessor without checking the substance for such instructions. The order dated December 18, 1991 of Lt. Governor is not applicable in the facts and circumstances of the case. Since, all the initial 70 members had been shown resigned and in their place 149 members had been shown enrolled on five dates which indicates that 149 members had high-jacked the Society. Address of the initial 70 CBI No. 78/2016 (Old No. 24/2008) Page 12 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) members are not available on the file.
(i) That the detail of bank account of the Society was not called for.
3. It was alleged that though the Society was revived by A1 vide order dated March 10, 2004 subject to two conditions namely:-
(a) That pending audit shall be completed within two months time and;
(b) Narender Singh, Grade-IV, Election Officer shall conduct the election within two months from the date of issuance of the order.
(i) But A3 on the very next day i.e. March 11, 2004 approved the noting of dealing assistant for forwarding the list of 149 members to AR (Policy) for onwards transmission to the DDA for allotment of land. AR (Policy) had also forwarded the list to DDA on March 25, 2004.
4. In compliance of the first condition of revival, accused P.K. Thirwani (A6) submitted the consolidated audit report for the year 1983-84 to 2002-2003 showing that audit was conducted at the office of Society i.e. 110 Sri Niwas Puri, New Delhi. But during investigation, it was revealed that the said address was incomplete and non- existing. Further, A6 admitted in his statement under Section 164 CBI No. 78/2016 (Old No. 24/2008) Page 13 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Cr.P.C that he had prepared the audit report at the instance of A2 on receipt of the illegal gratification of ` 10,000/- and further admitted that neither he visited the office of Society nor met with any office bearer of the Society and further admitted that he had made the signatures of President, Secretary and Treasurer of the Society at the bottom of his report.
5. Though Narender Singh Khatri (A7) was appointed as Election Officer to conduct the election within two months, but he did not conduct any such election. According to A7, he had written proceedings of the election in the proceeding register of society and gave the same to A2. According to him, copy of the proceeding was also sent to South Zone of RCS, but no such record could be collected. It was alleged that had A7 taken the steps to conduct election, he could have brought the actual position of the Society on record.
6. After completing investigation, charge-sheet was filed against A1 to A6 alleging that they entered into a criminal conspiracy during the period 2003-2004 to get the Society revived fraudulently on the basis of forged documents to cheat Government of NCT of Delhi and DDA by grabbing the land at subsidized rates. Pursuant to the said conspiracy, A2 submitted an application for revival of the Society by signing himself as K.P. Singh, President of the Society and he had also submitted forged documents to RCS office himself as well as through A4 and A5 and got favourable bogus reports. A3 processed the matter favourably, in furtherance of the said conspiracy with A1, who issued the illegal revival order without insisting for the necessary CBI No. 78/2016 (Old No. 24/2008) Page 14 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) documents as required under the statutory provisions and A6 completed the formality of conducting audit of the Society after receiving illegal gratification of ` 10,000/- from A2. Accordingly challan was filed against the accused persons for the offence punishable under Section 120B IPC r/w Section 420/511/468/471 IPC and Section 15 r/w Section 13 (2) and 13 (1)(d) of PC Act and substantive offences thereto for attempting to cheat Government of NCT of Delhi/DDA by abusing official position by the public servants.
7. CBI had obtained sanction qua A4, A6 and A7 as required under Section 19 of PC Act.
8. Though in the charge-sheet, it was alleged that further investigation would be required under Section 173 (8) Cr. P.C, but till date no supplementary challan has been filed by the CBI.
9. Vide order dated December 30, 2012, learned Predecessor of this Court held that prima-facie a case is made out against accused No. A1 to A6 for the offence punishable under Section 120B r/w Section 420/468/471 r/w 468 Indian Penal Code (in short IPC) and Section 13 (2) read with Section 13 (1) (d) of PC Act. It was further held that prima-facie a case is also made out against A1 for the offence punishable under Section 15 r/w Section 13 (2) r/w Section 13(1) (d) of PC Act. It was further held that prima-facie a case is also made out against A2 for the offence punishable under Section 420 IPC r/w Section 511 IPC, 468 IPC and under Section 471 IPC r/w Section 468 IPC. It was further held that prima-facie a case is also made out against A4, A5 and A6 for the offence punishable under CBI No. 78/2016 (Old No. 24/2008) Page 15 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Section 15 read with Section 13 (2) r/w 13 (1) (d) of PC Act & Section 468 IPC and 471 IPC read with Section 468 IPC. It was further held that no prima-facie case is made out against A7 Narender Singh Khatri, accordingly he was discharged from all the charges.
10. In pursuance to the said order, formal charges were framed against the accused persons on February 28, 2013, to which accused persons pleaded not guilty claimed trial.
11. In order to bring home the guilt of accused persons, CBI has examined as many as 135 witnesses. For the purpose of our discussion and convenience, all the witnesses have been classified in the following categories:-
Postmen:-
PW3 Sh. Jeet Ram
PW4 Sh. Kartar Singh
PW5 Sh. Mool Chand
PW8 Sh. Kailash Chand
PW9 Sh. Ishwar Chand
PW10 Sh. Sushil Kumar Verma
PW11 Sh. Raghubir Prasad
PW12 Sh. Shemsher Singh
PW13 Sh. Rattan Singh
PW14 Sh. Ram Niwas
PW15 Sh. Jai Bhagwan
PW16 Sh. Gabbar Singh Negi
CBI No. 78/2016 (Old No. 24/2008) Page 16 of 144
CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) PW17 Sh. Ashruddin PW18 Sh. Daya Kishan PW19 Sh. Rajender Singh PW20 Ghan Shyam Singh PW21 Ishwar Singh PW22 Sh. Dalip Kumar PW23 Sh. Dharam Pal PW24 Sh. Shiv Hari PW25 Sh. Sher Singh PW26 Sh. Ramesh Chander PW27 Sh. Sukhbir Singh PW28 Sh. Dharamvir Singh PW29 Sh. Jai Karan PW30 Sh. Umed Singh PW31 Sh. Tej Bhan PW32 Sh. Umed Singh PW33 Sh. Harish Chander Goel PW34 Sh. Gian Chand PW35 Sh. Charan Singh PW36 Sh. Jai Narayan Sharma PW37 Sh. Ram Chander PW38 Sh. Ghan Shyam PW39 Sh. Dhan Singh PW40 Sh. Mukesh Kumar PW41 Sh. Partap Singh PW42 Sh. Rajinder Singh PW43 Sh. S. S. Negi PW44 Sh. Chander Pal Singh CBI No. 78/2016 (Old No. 24/2008) Page 17 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) PW45 Sh. Rajesh Kumar-II PW46 Sh. Deen Dayal PW47 Sh. Ramesh Chand Vashisht PW48 Sh.Tilak Raj PW49 Sh. Ram Kishan PW50 Sh. Jagdish Chander PW51 Sh. Gian Parkash PW52 Sh. Sheel Sagar PW53 Sh. Kalu Ram PW54 Sh. Ramesh Chander PW55 Sh. Ashok Kumar PW56 Sh. Gaje Singh Chauhan PW57 Sh. Gulab Singh PW58 Sh. Ved Prakash PW59 Sh. Ram Chander Sharma PW60 Sh. Balbir Singh PW61 Sh. Ravinder Singh PW62 Sh. Bijender Singh PW63 Sh. Shyam Lal PW64 Sh. Brahm Parkash PW65 Sh. Bhupinder Singh PW66 Sh. Vijay Kumar Yadav PW67 Sh. Sharif Singh PW68 Sh. Amar Singh PW69 Sh. Chander Singh PW70 Sh. Kulbhushan Singh PW71 Sh. Sarabjit Bhati PW72 Sh. Vijay Pal CBI No. 78/2016 (Old No. 24/2008) Page 18 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) PW73 Sh. Goverdhan Singh PW74 Sh. Babu Lal Meena PW75 Sh. H.S.Bhandari PW76 Sh. Ram Saran PW77 Sh. Om parkash PW78 Sh. Dhani Singh PW79 Sh. Attar Singh PW80 Sh. Jiwanath PW81 Sh. Naresh Chand PW82 Sh. Jai Kishan PW83 Sh. Mahi Pal Singh PW84 Sh. Mahesh Kumar PW85 Sh. Raghubir Singh Garg PW108 Sh. Sulekh Chand Sharma PW109 Sh. Dharamvir PW112 Sh. Chand Singh PW119 Sh. Ram Chander CBI officials who deputed to verify the members:-
PW88 Sh. Surender Kumar
PW89 Sh. Balak Ram
PW90 Sh. Om Parkash
PW91 Sh. Om Parkash
PW92 Sh. Karambir Singh
PW93 Sh. Umrao Meena
PW94 Sh. ASI Rashid Ahmed
PW95 Sh. Yad Ram
CBI No. 78/2016 (Old No. 24/2008) Page 19 of 144
CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) PW96 Sh. Const. Satish PW97 HC A. S. Negi PW98 Const. Om Parkash PW99 Sh. Faquir Chand PW107 Sh. Lakhan Pal Singh Public Witnesses qua formal members:-
PW100 Sh. D.K.Gulabrani
PW101 ASI Sri Bhagwan
PW102 Const. Surinder Kumar
PW103 ASI Dharamvir Singh
PW104 Sh. Kishan Lal
PW106 Sh. Bharat Ratan Jaggi
PW116 Sh. Harip Singh
Official Witnesses qua the fabricated members:-
PW123 Sh. Purshotam Lal, Director (Vigilance), NDMC PW124 Sh. R.P.Sharma, Dy. Director, Directorate of Estate Government of India PW125 Sh. S.C.Bhardwaj, the then SDM Punjabi Bagh PW126 Sh. Yogesh Prakash, the then SDM PW127 Ms. Sonika Singh, Electoral Registration Officer PW128 Sh. B. S. Thakur, the then SDM, Model Town PW129 Sh. S. K.Singh, the then ADM, South Revenue PW130 Sh. Rajender Prasad, Electoral Registration Officer CBI No. 78/2016 (Old No. 24/2008) Page 20 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) PW131 Sh. G.P.Singh, the then ADM, Central Distt.
Witnesses relating to Stamp papers:-
PW1 Sh. Satbir Singh, stamp vendor
PW115 Sh. Gaurav Gupta s/o Mr. Arun Kr.
Gupta, Notary Public
PW121 Sh. Ashok Kumar, UDC in the office of Dy.
Commissioner
Officials of RCS office:-
PW2 Sh. V.K.Bansal, the then Asstt. Registrar
PW6 Smt. Sunanda, the then GR-II (DASS)
PW7 Sh. Niranjan Singh, the then Head Clerk
PW87 Sh. Satish Mathur, the then Dy. Registrar
PW105 Sh. Gopal Singh Visht, the then LDC
PW110 Sh. Satya Parkash Sharma, the then LDC
PW114 Sh.Vishwamitra Bhagi
PW117 Sh. Rajeev Nanwani
PW118 Sh. Jagdish Baswala, the then Dy. Director
(Planning)
PW120 Sh. Dilip Singh Verma, the then Supdt.
(Administration)
Miscellaneous witness:-
PW86 Ms. Rita Kaul, Advocate
CBI No. 78/2016 (Old No. 24/2008) Page 21 of 144
CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Witnesses relating to sanction:-
PW111 Sh. R. Narayanswami, the then Chief Secretary, Govt. of NCT Witnesses relating to specimen writings:-
PW113 Sh. Mahender Prasad
PW122 Sh. Virender Singh Dagar
Witnesses relating to GEQD :-
PW133 Dr. S. Ahmed, GEQD
CBI officials:-
PW132 Inspt. Bodhraj Hans
PW134 Inspt. G.M.Rathi
PW135 Sh. U. K. Goswami, the then DSP, investigating
officer
12. On culmination of prosecution evidence, accused persons were examined under Section 313 Cr.P.C wherein they denied each and every incriminating evidence led by CBI and submitted that they have been falsely implicated in this case.
However, they refused to lead any evidence in their defence.
(a) A1 took the plea that it was the responsibility of CBI No. 78/2016 (Old No. 24/2008) Page 22 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Managing Committee to furnish correct and true particulars while approaching RCS office for revival of the society. It was further submitted that he had acted in good faith under bonafied belief that the documents placed before him were in order. It was further submitted that he had passed the revival order in terms of Rule 105 of DCS Rules, 1973 and the law interpreted by High Court of Delhi in Writ Petition No. 1767/1986 in case Vikas Cooperative Group Housing Society Ltd. vs. RCS. It was further submitted that there was no other option before him except to revive the society. At last, it was submitted that no sanction had been obtained against him under Section 197 Cr.P.C despite the fact that he acted in discharge of his official duties.
(b) A2 submitted that the specimen writings Mark S-3 to S- 77 are not his specimen writings. It was submitted that since he was in custody in another matter at the time when the alleged specimen writings were taken, it was not possible for him to give specimen writings in the present case. It was further submitted that he had no concern with the society in question and he was not beneficiary in the said case. It was further submitted that he has been falsely implicated in this case.
(c) A4 submitted that CBI not obtained any sanction qua him under Section 197 Cr.P.C despite the fact that he was a public servant at the time of committing the alleged offence and acted in discharge of his official duties. It was further submitted that there is no evidence that he had demanded/obtained any pecuniary gain either for himself or for any other person. Even no land was alloted to the CBI No. 78/2016 (Old No. 24/2008) Page 23 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) society. It was further submitted that inspection under Section 54 of DCS Act, 1972 was not a pre-condition to revive the society. It was further submitted that if, he had committed any violation, he could be held liable under DCS Act and not under IPC. Though he submitted that he would lead evidence in his defence, yet he did not lead any evidence in his defence.
(d) A5 also took the plea that CBI had not obtained any sanction qua him under Section 197 Cr.P.C despite the fact that he was a public servant at the time of commission of alleged offence and he acted while discharging his official duties. It was further submitted that there is no evidence that either he had obtained or demanded any pecuniary gain either for himself or for any other person. Even no land was alloted to the society. Though he submitted that he would lead evidence in his defence, yet he did not lead any evidence in his defence.
(e) A6 submitted that he had conducted the audit in accordance with the Rules and as per his knowledge and wisdom. It was further submitted that during audit he had raised various objections, which shows that he was not in conspiracy/collusion with any of the accused persons. It was further submitted if, there is any defect in his report he can be held liable under DCS Act but not under IPC. It was further submitted that he had acted in good faith while performing his duty. It was stated that since he conducted the audit on the basis of documents produced by the society, he had not committed any offence. It was further submitted that CBI had not obtained any sanction under Section 197 Cr.P.C.
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(i) It is pertinent to state that during trial A6 had admitted the audit report dated March 15, 2004, which is part of file (Ex. PW111/DA). He also admitted his signature and initials on the said report stating that his signature is appearing at point A and initials are at points B1 to B4. He further admitted that the report is in his handwriting. He further admitted that while conducting audit, he had gone through the documents submitted by the society, which bears his signatures at point B5 to B90. Since, the audit report is admitted by A6, same is exhibited as Ex. A1. He also admitted his appointment letter dated March 11, 2004 wherein he was appointed as Auditor and same is Ex. A2. He also admitted the brief summary, which was submitted along with the report and same is Ex. A3. He also admitted the check list which was submitted along with the report and same is Ex. A4.
13. Learned Senior Public Prosecutor on behalf of CBI sagaciously argued that accused Gokul Chand Aggarwal was the mastermind of the conspiracy and pursuant to this conspiracy, he had moved an application (Ex.PW6/B) for revival of the Society whereupon he signed in the name of K.P. Singh showing him as the President of the Society. It was further submitted that accused Gokul Chand Aggarwal (A2) had also forged the signatures of Mr. K.P. Singh, Mr. Hem Raj and Mr. R.G. Gupta, who were shown as President, Secretary and Treasurer of the Society respectively. It was further submitted that accused had also forged the signatures of two female members namely Ms. Asha Devi and Ms. Sarita. Besides that, he had also forged the signatures of Mr. K.P. Singh on the proceeding register. It was further submitted that he had also forged the signature CBI No. 78/2016 (Old No. 24/2008) Page 25 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) of Mr. K.P. Singh and Mr. Hem Raj on their affidavits, which were submitted in the office of RCS for the purpose of revival of the Society. It was further submitted that he had also forged the signature on the election report.
(i) It was contended that in order to prove the case of prosecution, CBI placed reliance on the specimen writings of Gokul Chand Aggarwal (Mark S-3 to S-77). During the trial, same were proved as Ex.PW135/84, Ex.PW114/A and Ex.PW113/A. It was further argued that as per GEQD report (Ex.PW133/C), author of the specimen writings/signatures and the questioned writings and signatures was found one and the same person, which establishes that accused Gokul Chand Aggarwal (A2) was the person, who forged the signatures of above said persons.
(ii) It was contended that since accused Gokul Chand Aggarwal (A2) had forged the signatures of numerous persons for the purpose of revival of the Society and used the forged documents, he is liable for the offence punishable under Section 468 and 471 r/w Section 468 IPC.
(iii) Learned Senior Public Prosecutor appearing for CBI further contended that accused Gokul Chand Aggarwal had moved an application for revival of the Society and on the basis of documents produced by him, society was revived. It was urged that since the revival of the society was sought in order to obtain land from DDA at subsidized rate, accused Gokul Chand Aggarwal is also liable for the offence punishable under Section 420 IPC r/w 511 IPC.
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14. Learned Senior Public Prosecutor further contended that accused Ram Nath (A4) was working in the office of RCS and he was deputed to conduct the inspection of record of the society at its registered office. Accordingly, accused Ram Nath submitted his report undated (Ex.PW6/E) wherein he certified that he had visited the office of the Society located at 110 Sri Niwas Puri, New Delhi. However, during investigation, it was found that the said address was not in existence, which establishes that accused Ram Nath (A4) had submitted his report at the behest of accused Gokul Chand Aggarwal without conducting any inspection.
15. Learned Senior Public Prosecutor further contended that accused Faiz Mohd (A5) was also working in the office of RCS and he was deputed to verify members of the Society physically. Accordingly, he submitted his report Ex.PW6/O (colly.). It was contended that as per his report, he had physically verified 17 members. However, during investigation, it was revealed that all the said members were fictitious persons. It was also revealed that on two certificates, accused Gokul Chand Aggarwal forged the signatures of Ms. Sarita and Ms. Asha Devi. It was argued that this shows that accused Faiz Mohd had submitted a false report at the instance of accused Gokul Chand Aggarwal (A2).
(i) It was contended that since A4 and A5 had submitted a false reports, they had committed the criminal misconduct as defined under Section 13 (1)(d) of PC Act.
16. Learned Senior Public Prosecutor appearing for CBI CBI No. 78/2016 (Old No. 24/2008) Page 27 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) further contended that the allegations against accused Narayan Diwakar are that he was working as RCS at the relevant time and he had dishonestly revived the society by falsely showing the appearance of Ms. Rita Kaul in the proceeding though she never appeared before him. However, Ms. Rita Kaul (PW86) did not support the CBI version. During trial, no other evidence could be produced to establish that accused Narayan Diwakar had dishonestly shown the appearance of Ms. Rita Kaul as the counsel of society. Learned Senior Public Prosecutor fairly conceded that there is no other cogent evidence against accused Narayan Diwakar.
17. Learned Senior Public Prosecutor further contended that accused P.K. Thirwani was appointed as Auditor with direction to audit the books of accounts of the Society. Accordingly, he submitted his report. It was argued that being the auditor, he was required to conduct audit at the registered office of the society, but since the registered office was not found in existence, this establishes that he had not visited the office of the society at the time of conducting the audit and he had submitted a false report at the behest of accused Gokul Chand Aggarwal. It was further contended that he confessed in his statement recorded under Section 164 Cr. P.C that he had prepared the report after taking the bribe of ` 10,000/- from Gokul Chand Aggarwal. However, he fairly submitted that the said statement is not admissible in the eyes of law because it was not a confession of the accused in terms of Section 164 Cr. P.C.
18. Learned Senior Public Prosecutor appearing for CBI further contended that accused A2, A4, A5 and A6 hatched a criminal CBI No. 78/2016 (Old No. 24/2008) Page 28 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) conspiracy and pursuant to the said conspiracy, public servants namely Ram Nath (A4), Faiz Mohd (A5) and P.K. Thirwani (A6) submitted false reports. It was further argued that since conspiracy cannot be a part of official duty of any government servant, no sanction under 197 Cr. P.C is required in this case. It was further contended that CBI had obtained sanction under 19 of the PC Act and the same has been proved during trial.
19. Mr. S.K. Bhatnagar, Advocate, Ld. counsel appearing for A4 to A6 contended that the allegations against A4 are that he had submitted the inspection report without visiting the registered office of the society and during investigation, it was revealed that the address of the registered office was not in existence. However, there is no substance in the version of CBI because as per CBI case, copy of revival order was sent to the society at its registered office through post. But during trial, CBI failed to produce any evidence whatsoever to establish who had received the said order, if the address was not in existence. It was contended that as per Section 63 (4) of the DCS Act, it was the duty of RCS to send the copy of revival order to the Society at its registered office by post, but during trial, CBI failed to seize the dispatch register, which shows that CBI had not conducted the investigation fairly and impartially. Even, CBI had not filed the undelivered envelope, if any.
(i) It was further contended that inspection under Section 54 was not a pre-requisite condition under DCS Act to revive any Society. It was further contended that there is nothing on record, which may show that the report was contrary to the provisions of DCS Act or DCS CBI No. 78/2016 (Old No. 24/2008) Page 29 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Rules. Nor there is any evidence to show that A4 had violated any instruction or direction of RCS while conducting the inspection. It was further contended that the society was not revived mere on the report of A4; rather it was revived on several grounds as mentioned in the order.
20. It was further contended that though accused Faiz Mohd was deputed to conduct physical verification of the members and he submitted his report, but there is nothing on record that his report is contrary to the provisions of DCS Act or DCS Rules. It was argued that mere fact that during investigation, it was revealed that signatures of two members were forged by accused Gokul Chand Aggarwal is not sufficient to establish that he had submitted a false report.
21. It was further contended that A4 and A5 had submitted their reports while discharging their official duties and there is no iota of evidence to establish that they had submitted the reports against any illegal consideration or they made any demand for pecuniary gain or valuable thing either for themselves or for any other person. It was further contended that it is admitted case of CBI that no land had been allotted to the society in this case, thus society was not benefited in any manner by their reports. It was argued that their reports are not helpful to the CBI in any manner to prove their guilt even under Section 13 (1)(d) of PC Act.
(i) It was further contended that it is admitted case of CBI that A4 and A5 were working as public servants and they submitted CBI No. 78/2016 (Old No. 24/2008) Page 30 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) their reports when they were deputed to conduct the inspection/ verification. It was argued that this establishes that there was a direct connection between their acts and alleged offences. Since, CBI had not obtained any separate sanction under 197 Cr. P.C, A4 and A5 cannot be held guilty for the penal offences for want of sanction. In support of his contentions, counsel placed reliance on the judgments namely Amrik Singh v. State of Pepsu AIR 1955 SC 309, R. Balakrishna Pillai v. State of Kerala and Another (1996) 1 SCC 478, State of Madhya Pradesh Vs Sheetla Sahai and others (2009) 8 SCC 617 and Prof. N.K. Ganguly v. CBI in Criminal Appeal No. 798 of 2015 decided by the Apex Court on November 19, 2015.
(ii) It was further contended that though CBI had obtained sanction under Section 19 of PC Act, but there is no evidence on record that at the time of seeking sanction, CBI had sent any document to the sanctioning authority, which establishes that the sanction was accorded without any application of mind. It was argued that since sanction is defective, A4 and A5 cannot be held guilty even under PC Act.
22. It was contended that though it is undisputed fact that accused P.K. Thirwani had conducted the audit and submitted the report, accordingly he fairly admitted the same during trial, but there is no evidence to show that the report submitted by him is false. It was argued that in the absence of any such evidence, he cannot be held guilty under PC Act.
(i) It was further argued that since there is no evidence on CBI No. 78/2016 (Old No. 24/2008) Page 31 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) record to establish that accused P.K. Thirwani had forged the signature of Mr. K.P. Singh, Mr. Hem Raj and Mr. R.G. Gupta on his report in order to obtain any pecuniary gain, in the absence of any such evidence, he cannot be held guilty either under Section 468 IPC or 471 IPC. It was further contended that it is admitted case of CBI that revival order was not passed on the basis of the audit report. It was further argued that since audit report was submitted in discharge of official duty, separate sanction under Section 197 Cr. P.C was also required against accused P.K. Thirwani.
23. Sh. Abhishek Prasad, Advocate, Ld. counsel appearing for accused Narayan Diwakar contended that the entire prosecution case is based on the testimony of Ms. Rita Kaul, Advocate (PW86) and in her deposition she clarified that since her appearance is marked in the order-sheet, she might have appeared in this matter, which falsifies the CBI version that her appearance had been shown by the accused dishonestly. It was further contended that PW135 in his cross-examination admitted that during investigation, he could not find any evidence to show that A1 had obtained any pecuniary gain from any of the accused persons or from any other person. It was further contended that since he had passed the revival order on the basis of notes and reports put up before him by his subordinates, in the absence of any other cogent evidence, it is not sufficient to establish that he had committed any offence either under the PC Act or under the penal code. It was further contended that since accused Narayan Diwakar had passed various orders in discharge of his official duties, there was direct nexus between his acts and alleged offence, if any, thus a separate sanction under Section 197 Cr. P.C was required.
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24. Sh. Abhishek Prasad, Advocate, Amicus-Curiae for accused Gokul Chand Aggarwal contended that the entire case qua accused Gokul Chand Aggarwal is based on the report of GEQD. It was argued that in the absence of any corroborative evidence, conviction cannot be recorded solely on the basis of GEQD report. It was further argued that there is no iota of evidence to show that A2 had ever visited the RCS office in connection with the revival of the Society. It was further contended that since the specimen signatures/writings were not taken with the permission of the Court, same cannot be used for the purpose of comparison. In support of his contention, reliance has been placed on the judgment Sapan Haldar & another v. State 2012 VIII AD (Delhi) 533. It was further contended that even PW86 did not depose that she was engaged by A2 in the present matter. It was further contended that since prosecution has not examined the another expert i.e. Mr. N. C. Sood, no reliance can be placed on the report of PW133.
(i) It was further contended that even the testimony of PW1 is not helpful in any manner to prove the guilt of accused Gokul Chand Aggarwal because PW1 failed to produce the register showing that he had sold non-judicial stamp papers to Gokul Chand Aggarwal. It was contended that in the absence of register, it is not possible for any stamp vendor to depose to whom he had sold the same after the gap of 10 years. Mere fact that PW1 knew him or that sometimes accused Gokul Chand Aggarwal used to buy non-judicial stamp papers from him is not sufficient in any manner to prove his guilt beyond the shadow of all reasonable doubts.
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(ii) It was further contended that during investigation, no incriminating material was recovered from the possession of accused, which also falsifies the version of CBI that he was the mastermind of the conspiracy.
25. I have heard arguments advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
Findings qua GEQD Report:-
26. First question emerges from the submissions advanced by counsel for both the parties; whether it was mandatory on the part of investigating agency to take permission of the concerned Court before taking specimen writings of the accused?
27. Perusal of the judgment Sapan Haldar & another v. State (supra) makes it clear that the fact in issue before the Hon'ble Court was Section 4 & 5 of Identification of Prisoners Act, 1920 and Section 311A Code of Criminal Procedure. After considering the relevant case law, Hon`ble Court arrived at the following conclusion:-
(i) Handwriting and signature are not measurements as defined under clause
(a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of The Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature. Thus, an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample CBI No. 78/2016 (Old No. 24/2008) Page 34 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) from a person accused of having committed an offence.
(ii). Prior to June 23, 2006, when Act No. 25 of 2005 was notified, inter-alia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures of handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case (supra).
According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and or signatures for purposes of comparison.
(emphasis supplied)
(i) However in the instant case, neither the Section 2 (a), 4 & 5 of Identification of Prisoners Act nor Section 311-A Cr.P.C are facts in issue before this Court. Indisputably, in the instant case, investigating officer had not taken the specimen handwritings of the accused after obtaining permission either from the Court concerned or from the Court of Metropolitan Magistrate. Rather, specimen handwritings were taken during the investigation. It is pertinent to state that in the judgment Sapan Haldar & another v/s. State (supra), there is nothing which may suggest that investigating officer has no right or jurisdiction to take specimen handwriting of the suspect during investigation for the purpose of finding truth, which is an ultimate object of any investigation.
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28. Now coming to the next question that arises from the submissions advanced by counsel for the parties; whether any reliance can be placed on the uncorroborated report of handwriting expert or not?
(i). The said question was dealt with by the Apex Court in detail in Murari Lal v. State of MP, AIR 1980 SC 531. In the said judgment Apex Court had discussed the entire case law relating to Handwriting Expert Evidence, relevant portions of the judgment are reproduced as under:-
Para No.2.......... The Station House Officer, P. W. 28, came to the scene, found things in the room strewn about in a peel-smell condition. He seized various articles. One of the articles so seized was a prescription pad Ex. P-9. On pages A to F of Ex. P-9, there were writings of the deceased but on page 6, there was a writing in Hindi in pencil which was as follows:
Translated into English it means: "Though we have passed B. A., we have not secured any employment because there is none to care. This is the consequence. sd/- Balle Singh". ...... Specimen writings Exs. P-41 to P-54 of Murari Lal were obtained. They were sent to a handwriting and finger-print expert P. W. 15 along with the prescription pad Ex. P-
9, for his opinion. The expert gave his opinion that the writing in Hindi at page 6 of Ex. P-9 and the specimen writings of Exs. P-41 to P-54 were made by the same person......
3......He further argued that the High CBI No. 78/2016 (Old No. 24/2008) Page 36 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Court fell into a grave error in concluding that the writing at page 6 of Ex. P-9 was that of the appellant. He submitted that the evidence of P. W. 8 who claimed to be familiar with the handwriting of the appellant was wholly unacceptable, that it was not permissible in law to act upon the uncorroborated opinion-evidence of the expert P. W. 15 and that the High Court fell into a serious error in attempting to compare the writing in Ex. P-9 with the admitted writing of the appellant.
4. 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 the 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 any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the equality of credibility or incredibility being one which an expert shares with all other witness -, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect.
CBI No. 78/2016 (Old No. 24/2008) Page 37 of 144CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) 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 Decie v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his Evidence).
5. From the earliest times, courts have received the opinion of experts. As long ago as 1553 it was said in Buckley v. Rice Thomas, (1554) 1 Plowden 118:
"If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation."
6. Expert testimony is made relevant by S. 45 of the Evidence Act and where CBI No. 78/2016 (Old No. 24/2008) Page 38 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' 'in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like Illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S. 3) tells us that 'a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we act on artificial standard of proof not warranted by the provisions of the Act. Further, under S. 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinion of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of a handwriting expert and there need to no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree.
There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground CBI No. 78/2016 (Old No. 24/2008) Page 39 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.
7. Apart from principle, let us examine if precedents justify invariable insistence on corroboration. We have referred to Phipson on Evidence, Cross on Evidence, Roscoe on Criminal Evidence, Archibald on Criminal Pleadings, Evidence and Practice and Halsbury's Laws, England but we were unable to find a single sentence hinting at such a rule. We may now refer to some of the decisions of this Court. In Ram Chandra v. U. P. State, AIR 1957 SC 381, Jagannadha Das, J. observed; "It may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction" (emphasis ours).
'May' and 'normally' make our point about the absence of an inflexible rule. In Ishwari Prasad Misra v. Mohammad Isa, (1963) 3 SCR 722, Gajendragadkar, J.
observed; "Evidence given by expert can never be conclusive, because after all it is opinion evidence", a statement which carries us nowhere on the question now under consideration. Nor, can the statement be disputed because it is not so provided by the Evidence Act and, on the contrary, S. 46 expressly makes opinion evidence challenge-able by facts, otherwise irrelevant. And as Lord President Cooper observed in Davis v.
Edinburgh Magistrate : "The parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert".
8. In Shashi Kumar v. Subodh Kumar, CBI No. 78/2016 (Old No. 24/2008) Page 40 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) AIR 1964 SC 529, Wanchoo, J., after noticing various features of the opinion of the expert said:
"We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that this Will must have been signed in 1943 as it purports to be. Besides, it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case the probabilities are against the expert's opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it".
So, there was acceptable direct testimony which was destructive of the expert's opinion; there were other features also which made the expert's opinion unreliable. The observations regarding corroboration must be read in that context and it is worthy of note that even so the expression used was 'it is usual' and not 'it is necessary'.
9. In Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326 : 1967 Cri LJ 1197, Hidayatullah, J. said:
"Both under S. 45 and S. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting form frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may CBI No. 78/2016 (Old No. 24/2008) Page 41 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness".
These observations lend no support to any requirement as to corroboration of expert testimony. On the other hand, the facts show that the Court ultimately did act upon the uncorroborated testimony of the expert though the judges took the precaution of comparing the writing themselves.
10. Finally, we come to Magan Bihari Lal v. State of Punjab, AIR 1977 SC 1091 upon which Sri R. C. Kohli, learned counsel, placed great reliance. It was said by this Court:
"... but we think it would be extremely hazardous to condemn the appellant CBI No. 78/2016 (Old No. 24/2008) Page 42 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) 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 precedential 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., AIR 1957 SC 381 that it is unsafe to treat expert handwriting opinion as sufficient 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 Iswari Prasad v. Md. Isa, AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar, AIR SC 529 where it was pointed out by this Court that 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., AIR 1967 SC 1326 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 circumstantial."
The above extracted passage, undoubtedly, contains some sweeping CBI No. 78/2016 (Old No. 24/2008) Page 43 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) general observations. But we do not think that the observations were meant to be observations of general application or as laying down any legal principle. It was plainly intended to be a rule of caution and not a rule of law as is clear from the statement 'it has almost become as rule of law'. 'Almost', we presume, means 'not quite'. It was said by the Court there was a 'profusion of precedential authority' which insisted upon corroboration and reference was made to Ram Chandra v. State of U. P., Ishwari Prasad v. Mohammed Isa, Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of M. P. We have already discussed these cases and observed that none of them supports the proposition that corroboration must invariably be sought before opinion evidence can be accepted. There appears to be some mistake in the last sentence of the above extracted passage because we are unable to find in Fakhruddin v. State of Madhya Pradesh any statement such as the one attributed. In fact, in that case, the learned Judges acted upon the sole testimony of the expert after satisfying themselves about the correctness of the opinion by comparing the writings themselves. We do think that the observations in Magan Bihari Lal v. State of Punjab must be understood as referring to the facts of the particular case.
11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised 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 CBI No. 78/2016 (Old No. 24/2008) Page 44 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) 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 a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. 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.
12. The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion.
The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or CBI No. 78/2016 (Old No. 24/2008) Page 45 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings.
13. Reverting to the facts of the case before us, Sri Kohli had not a word of criticism to offer against the reasons given by the expert P. W. 15, for his opinion. We have perused the reasons given by the expert as well as his cross-examination.
Nothing has been elicited to throw the least doubt on the correctness of the opinion. Both the Sessions Court and the High Court compared the disputed writing at page 6 in Ex. P-9 with the admitted writings and found, in conjunction with the opinion of the expert, that the author was the same person. We are unable to find any ground for disagreeing with the findings.
(emphasis supplied)
(i) The above view was approved by the Apex Court in Alamgir v. State (NCT) Delhi in Criminal Appeal No. 202 of 2001 decided on 12.11.2002.
29. In view of the law laid down in Murari Lal v. State of MP (supra), I am of the considered opinion that the conviction can be recorded on the sole uncorroborated report of handwriting expert, if the report is convincing and there is no reliable evidence throwing out on the report.
30. The next question crops up for adjudication whether in the instant case prosecution has proved the specimen writings of CBI No. 78/2016 (Old No. 24/2008) Page 46 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) A2, A4, A5, A6 and A7 beyond doubt or not?
31. During investigation, investigating officer had taken the specimen writings of accused Gokul Chand Aggarwal (Marked S-3 to S-77), Faiz Mohd. (S-102 to S108), Ram Nath (S-109 to S-116) and P. K. Thirwani (S-150 to S-168). The specimen writings of accused Gokul Chand Aggarwal i.e. Mark S-3 is Ex. PW135/84, S4 to S33 are Ex. PW114/A (colly) whereas the remaining specimen writings of accused Gokul Chand Aggarwal are exhibited as Ex. PW113/A (colly). Specimen writings of accused Faiz Mohd, Ram Nath and P. K. Thirwani are exhibited as Ex. PW113/C (colly), Ex. PW113/D (colly) and Ex. PW122/A (colly) respectively.
(i) The above said specimen writings were taken in the presence of independent witnesses.
32. PW114 Mr. Vishwamitra Bhagi deposed that he knew accused Gokul Chand Aggarwal and identified him correctly and further testified that on December 22, 2005 investigating officer Mr. U. K. Goswami had taken the specimen writings Mark S-4 to S33 {Ex. PW114/A (colly)}. Though he was cross-examined but nothing could be extracted during his cross-examination which may help the accused.
(i) PW113 Mr. Mahender Prasad deposed that CBI had taken the specimen writings of accused Gokul Chand Aggarwal i.e. Mark S-34 to S-77 {Ex. PW113/A (colly)}. He further testified that CBI had also taken the specimen writings of accused Faiz Mohd. Mark S-
CBI No. 78/2016 (Old No. 24/2008) Page 47 of 144CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) 102 to S108 which is Ex. PW113/C (colly). He further testified that CBI had also taken the specimen writings of accused Ram Nath as Mark S-109 to S116, which are collectively Ex. PW113/D. Though the witness was cross-examined but nothing could be extracted during his cross-examination, which may help the accused persons in any manner.
(ii) PW 122 Mr. Virender Singh Dagar deposed that CBI had taken the specimen writings of accused P.K. Thirwani in his presence as well as in the presence of Mr. Surya Parkash and his specimen writings were given as Mark S-150 to S-168 {Ex. PW122/A (colly)}. Though witness was cross-examined, but nothing could be extracted which may help the accused in any manner.
(iii). Besides the above said witnesses, PW135 also deposed that the above said specimen writings were taken by him.
(iv). In view of the deposition of above said witnesses, I do not find any substance in the plea of A2 that the specimen writings Ex. PW135/84, Ex. PW114/A and Ex. PW113/A do not belong to him.
33. From the deposition of above said witnesses, it becomes clear that investigating officer had taken the specimen writings of above said accused persons during investigation.
34. Now, I proceed to deal with the contention whether the GEQD report can be discarded mere on the ground that prosecution has not examined the another GEQD i.e. Mr. N.C.Sood.
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(i) It is admitted case of CBI that the questioned documents were examined by two independent witnesses namely PW133 and Mr. N. C. Sood. The report Ex. PW133/C reveals that it bears the signatures of both the GEQDs. This proves that both the GEQDs arrived at the same conclusion after examining the documents. Since, CBI has proved the report through PW133, it was not required by the CBI to examine another GEQD as it is settled law that Court has to see quality and not quantity of the evidence. Thus, mere fact that CBI did not examine another GEQD i.e. Mr. N.C.Sood is not sufficient to discard the report Ex. PW133/C. Moreover, if accused persons think that the testimony of Mr. N.C.Sood would help them to prove their innocence, they could have easily produced him in the witness box, but they did not choose to produce him during trial. Accordingly, in my view non-examination of Mr. N.C.Sood, GEQD is not fatal to the prosecution case in any manner.
35. Now question arises whether mere fact that the reasons Ex.PW133/D given in support of the report Ex. PW133/C do not bear the signature of Mr. N.C.Sood is sufficient to discard the GEQD report?
(i) To my mind, the answer is in negative. The purpose of examining the documents by two independent experts is to rule out the possibility of any mistake. Once, it is established that both the GEQDs arrived at the same conclusion, it is not relevant whether the reasons were signed by another GEQD or not. There is every possibility that Mr. N.C.Sood might have noted down his separate reasons and since the conclusion was same, same was not filed on CBI No. 78/2016 (Old No. 24/2008) Page 49 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) record. In the absence of any contrary evidence on record, I am of the view that mere fact that the reasons do not bears the signature of Mr. N.C.Sood is not fatal to the prosecution in any manner.
36. Now, I proceed to the next contention whether the GEQD report Ex. PW133/C can be discarded mere on the ground that it was not corroborated by any other evidence during trial.
37. As laid down in Murari Lal v. State of MP (supra); where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt over the opinion, the uncorroborated testimony of hand writing expert can be accepted. Though in the instant case, PW133 was cross-examined at length by the defence counsel, but nothing could be extracted during his cross- examination which may show that the reasons given by PW133 in support of his opinion are not convincing or that there is any reliable evidence which is sufficient to throw a doubt over the conclusion arrived at by PW133 and Mr. N. C. Sood. In the absence of any such evidence, I am of the considered opinion that there is no reason to disbelieve the GEQD report Ex. PW133/C.
38. It is also pertinent to state that PW 133 is in the field of GEQD since 1990 and he had examined thousands of documents in his career and he is a well qualified person, which shows that is not only a qualified person but also a well experienced expert. Similarly, Mr. N. C. Sood was also working in GEQD Shimla when he examined the documents and he is also a qualified person. This shows that the documents were examined by two experienced and well qualified CBI No. 78/2016 (Old No. 24/2008) Page 50 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) persons. There is nothing on record which shows that they had any bias towards the accused persons, thus it can safely be culled out that both were independent and experienced persons and they had no ill- will against any of the accused persons. From the record, it can safely be culled out that sufficient data were provided to both the GEQDs to examine the questioned documents. From their report, it also becomes clear that they had examined the documents with the aid of various scientific instruments available in the government laboratory at Shimla. This further shows that both the GEQDs examined the documents with scientific instruments. In these circumstances, in the absence of any contrary evidence on record, I do not find any reason to disbelieve their report.
Findings qua False members:-
39. As per prosecution version, an application dated January 1, 2004 (Ex. PW6/B) was submitted in the office of RCS for revival of the society. Alongwith the application, a list of 149 members was also sent for the approval of RCS. It was alleged by the CBI that during investigation, it was surfaced that none of the members was found available at the address mentioned in the list as most of the addresses were found non-existence or if the addresses were found correct, members were not found residing there. Accordingly, it was alleged by the CBI that the list of fabricated members was submitted before the RCS for approval.
(i) In order to prove that the list of fabricated members was furnished with the RCS, CBI had deputed its officials to deliver notices CBI No. 78/2016 (Old No. 24/2008) Page 51 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) to the members asking them to join the investigation, but all such notices returned undelivered. Similarly, CBI also sent notice to some members through post but again such notices returned undelivered with the remarks that either the addresses were incomplete or non- existent or no such person was found residing at the given address. CBI also examined few persons from the locality of few members and they also confirmed that either the addresses were not in existence or no such person was residing at the given address. CBI also examined the official from the Estate office to establish that no such member was residing in the government accommodation as mentioned in the list. CBI also examined officials from the Electoral office and they also confirmed that either the addresses were not in existence or no such person was registered as a voter.
(ii) During trial, prosecution has examined 17 postmen i.e. PW3 to PW5, PW8 to PW11, PW18, PW22, PW32, PW34, PW35, PW85, PW108, PW109, PW112, PW119. They deposed about 21 members namely Smt. Veenu (Membership No. 190), Ms. Mathura Devi (MS No. 208), Ms. Santosh Rani Bajaj (MS No. 211), Mr. S. K. Ahuja (MS No. 214), Mr. Nihal Singh (MS No. 191), Mr. Mange Ram (MS No.200), Mr. S.K.Khulshestra (MS No.91), Mr. N.S. Bhandari (MS No.114), Mr. Desh Raj (MS No. 184), Mr. Dhani Ram (MS No.
174), Mr. Surinder Singh (MS No. 148), Mrs. Maya Bansal (MS No.168), Mr. Chet Ram (MS No.112), Mr. B.L.Malhotra (MS No.137), Ms. Rekha Rani (MS No.157), Mr. Hem Raj Parchanda (MS No.84), Mr. Aman Lal (MS No. 196), Mr. R. K. Kapoor (MS No. 141), Mr. Ashwani Kumar (MS No.204), Mr. S.M.Narang (MS No.99 ) and Mr. M.L.Johari (MS No.118). The said witnesses testified that either the CBI No. 78/2016 (Old No. 24/2008) Page 52 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) addresses mentioned on the envelope were not in existence or the same were incomplete or incorrect or if, the address is correct, addressee/member was not found residing at the address mentioned on the envelope. It is pertinent to state that the addresses mentioned on the envelope were as per the addresses mentioned in the list, which was furnished in the office of RCS.
(iii) During trial, prosecution also examined 10 CBI officials i.e. PW88, PW89, PW90, PW91, PW92, PW93, PW95, PW98, PW99 and PW107. They deposed regarding 70 members namely Mr. T. Dass (MS No. 86), Mr. Sri Ramji Lal Keshwani (MS No.113), Mr. Wali Singh (MS No.147), Mr. Chet Ram (MS No.112), Mr. Prem Kumar (MS No.134), Ms. Urmila Jain (MS No.136), Mr.S.S.Khanna (MS No.144), Mr. D.P. Sharma (MS No.164), Mohd. Akram (MS No.180), Mr. Ram Singh (MS No.192), Ms. Alka Malhotra (MS No.201), Ms. Neelam Batra (MS No.152), Mr. K.K.Kapoor (MS No.155), Ms. Savita Malhotra (MS No.156), Mr. Ramesh Chand (MS No.172), Mr. Hari Chand (MS No.187), Mr. O.P.Kumar (MS No.202), Ms. Mathura Devi (MS No.208), Ms. Paramjeet Kaur (MS No.132), Ms. Kalpna Rani (MS No.145), Mr. Krishan Dass (MS No.177), Mr. Desh Raj (MS No. 184), Mr. Aman Lal (MS No.196), Mr. Jagdish Chander (MS No.207), Mr. N.K.Tiwari (MS No.216), Mr. Bansat lal Sawhney (MS No.219), Mr. Kapoor Chand (MS No.72), Ms. Sudha Mishra (MS No.96), Mr. Suresh Chand (MS No.105), Mr. Prakash Sethi (MS No.71), Ms. Laxmi Bai (MS No.76), Ms. Anuradha Mohan (MS No.78), Mr. Lekh Raj Narang (MS No.79), Mr. Sukh Dayal Mehta (MS No.80), Mr. Ram Avtar (MS No.85), Mr. V. N. Bhandari (MS No.
117), Mr. J.L.Narang (MS No.83), Mr. Puran Singh (MS No.90), Mr. CBI No. 78/2016 (Old No. 24/2008) Page 53 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Naresh Kumar (MS No.102), Mr. Moti Ram (MS No.101), Ms. Veena Anand (MS No.215), Mr. Jeevan Dass (MS No.194), Mr. Bhale Ram (MS No.73), Mr. Ram Phal (MS No.75), Mr .Hem Raj (MS No.84), Mr. Hori Lal (MS No.87), Mr. S. N. Bhatia (MS No.88), Ms. Daya Wati (MS No.89), Mr. Balbir Singh (MS No.95), Mr. R.S.Sethi (MS No.100), Mr. A.K.Vats (MS No.104), Mr. S.Mahajan (MS No.106), Ms. Aparna (MS No.107), Mr. Shyam Singh (MS No.115), Ms. Savita Kumari (MS No.77), Mr. M.R.Arora (MS No.98), Mr. G.C.Pant (MS No.125), Ms. Maya Bansal (MS No.168), Ms. Seeta Devi (MS No.182), Mr. A.N.Mehta (MS No.94), Ms. Neelam Batra (MS No.97), Mr. Sangeeta Mehta (MS No.110), Mr. Surender Singh (MS No.148), Mr. C.L.Aggarwal (MS No.74), Mr. Gurbachan Singh (MS No.81), Mr. Gopal Dass Nagpal (MS No.82), Mr.S.K. Kulshreta (MS No.91), Mr. Bhagwan Dass (MS No.93), Mr. N. S.Bhandari (MS No.114) and Mr. Vinod Kumar (MS No.116). All the witnesses deposed that they personally visited the addresses of the above said addresses but on inquiry it was revealed that either the members were not residing at the given address or addresses were incomplete/incorrect or the same was not found in existence in the colony.
(iv) During trial, prosecution also examined several public persons to prove that the members were false and fabricated. PW100 deposed regarding these six members namely Ms. Suman Rani (MS No.199), Mr. N.K.Jain (MS No.121), Mr. Prem Kumar (MS No.134), Mr. K. P. Singh (MS No.154), Mr. Irfan Ahmed (MS No.181) and Mr. H.Lal (MS No.205) and deposed that their addresses were not in existence in Paschim Vihar area. Similarly, PW104 deposed regarding two members namely Mr. M. B. Ahmed (MS No.161) and Mr. CBI No. 78/2016 (Old No. 24/2008) Page 54 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) R.K.Kapoor (MS No.141). He also testified that the given addresses were not in existence in Paschim Vihar area. PW106 deposed that Sh. S. Mahajan (MS No. 106) was not residing at the given address. PW116 Mr. Harip Singh Rawat deposed that he had resided at G- 2347, Netaji Nagar, Delhi from 2004 to February 2008 and he is not aware who was residing at the said address prior to 2004. PW101 ASI Sri Bhagwan deposed that no such address was in existence in the area of Rani Bagh.
(v) PW123 Sh. Purshotam Lal deposed that CBI had sent a list of 81 members along with their addresses and asked about the correctness and whether the members were residing at the given address or not. The notice of the CBI along with the list of members is exhibited as Ex. PW123/A. He further deposed that the reply was sent through Ex. PW123/B. As per record, no such person was found residing at the address mentioned in the list. PW124 Sh. R. K. Sharma was Dy. Director in the Directorate of Estate, Government of India and deposed that CBI had sought information about 26 members who were purportedly residing in the government accommodations. The letter of CBI along with the list of members is Ex. PW124/A. He sent the reply to the CBI vide Ex. PW124/B stating that the given addresses were either not government accommodations or no such person was residing there. PW125 Sh. S. C. Bhardwaj was working as Electoral Registration Officer in the year 2006 and deposed that CBI had sought information about the detail of 8 members vide letter Ex. PW125/A and after verification, he sent the reply to CBI vide Ex. PW125/B stating that the said addresses do not exist in their jurisdiction.
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40. PW126 Sh. Yogesh Pratap was also working as Electoral Registration Officer and deposed that CBI sought information about three persons vide letter Ex. PW126/A and on verification, it was revealed that the name of said persons had already been deleted from the electoral roll. The reply is Ex. PW126/B.
(i) PW127 Ms. Sonika Singh was working as Electoral Registration Officer and deposed that CBI sought information about five persons vide letter Ex. PW125/A and on verification, it was revealed that the name of said persons had already been deleted from the electoral roll. Accordingly, reply (Ex. PW127/A) was sent.
(ii) PW128 Sh. B. S. Thakur was also working as Electoral Registration Officer and deposed that CBI sought information about seven persons vide letter Ex. PW125/A and deposed that either the said persons were not registered in the electoral roll or found not residing within their jurisdiction. The replies are Ex. PW128/A and PW128/B.
(iii) PW129 Sh. S. K. Singh, Electoral Registration Officer, deposed that CBI sought information about five persons vide letter Ex. PW125/A and testified that on verification, it was revealed that neither the persons nor the addresses were found in the electoral roll. Accordingly, reply Ex. PW129/A was sent to CBI.
(iv) PW130 Sh. Rajender Prasad was also working as Electoral Registration Officer and deposed that CBI sought information about six persons vide letter Ex. PW125/A and on verification, it was CBI No. 78/2016 (Old No. 24/2008) Page 56 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) revealed that these persons were not enrolled in the electoral roll. Accordingly, reply Ex. PW130/A and PW130/B were sent to CBI.
(v) PW131 Sh. G. P. Singh was also working as Electoral Registration Officer and deposed that CBI sought information about two persons vide letter Ex. PW125/A and on verification, it was revealed that these two persons were not found enrolled in the electoral roll. Accordingly, reply Ex. PW131/A was sent to CBI.
41. Though during trial, some of the witnesses were cross-examined by the learned defence counsel but during their cross- examination, nothing could be extracted, which may establish that the members were residing at the given address or they were not fictitious persons. It is pertinent to state that during trial, no dispute was raised that the notices were not sent at the addresses mentioned in the list. Even during trial, accused persons failed to produce even a single person from the list of members to discredit the prosecution case that the members were not fictitious or they were genuine or some of the members were residing at the given addresses. In the absence of any such evidence, I am of the view that prosecution led sufficient evidence to establish that most of the members could not be traced out during investigation as either the members were not found residing at the given addresses or the addresses mentioned in the list were either incomplete or not in existence. In these circumstances, it can safely be culled out that most of the members, whose names were mentioned in the membership list, were fictitious persons and due to that reason, they could not be traced out during the investigation and due to that reason, they were not produced by the accused persons CBI No. 78/2016 (Old No. 24/2008) Page 57 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) during trial.
Findings qua the application and documents sent along with the application:-
42. During investigation, CBI had seized the office file of society in question from the office of RCS and the same is Ex. PW132/B2. As per the said file, an application dated January 1, 2004 was moved on behalf of society in question with a prayer to cancel the winding up order and to revive the society. The said letter was signed by one Mr. K. P. Singh being the President of the society. The said letter is Ex. PW6/B.
(i) As per the file (Ex. PW132/B2), on receipt of the letter (Ex. PW6/B), it was put up before the RCS through note dated January 5, 2004 wherein it was purposed that since the main file was not traceable in the office, a circular be issued to all the zones/branches with a direction to search the main file and if file could not be searched within 15 days, it would be presumed that the file was not lying in that zone/branch. It was also purposed that in the mean time, an inspection under Section 54 of DCS Act, 1972 be also got carried out to bring the actual position of the society on record. The said proposal was ultimately approved by RCS. Thereafter, Mr. Ram Nath (A4) was appointed as Inspecting officer. As per the file Ex. PW132/B2, accused Ram Nath had submitted his report. Along with his report, he had also submitted numerous documents. From the note dated February 4, 2004 (Ex. PW6/F), it is established that accused Ram Nath had submitted 135 documents which had been referred to CBI No. 78/2016 (Old No. 24/2008) Page 58 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) in the said note as page P6/C to P135/C.
43. Perusal of the said documents it becomes clear that accused Ram Nath had annexed the list of members, books of accounts, cash in hand certificate from 1983-1984 to March 31, 2003. He also annexed the copy of Bye-laws of the society, list of promoters members, copy of registration certificate, copy of winding up order, copy of minutes of the meeting held on September 28, 2003 and September 30, 2003, list of Management Committee members, nomination forms, copy of agenda dated August 26, 2003, election schedule dated August 26, 2003, report of election officer, list of Management Committee Members and list of members of the society.
44. As per the report (Ex. PW6/E) of accused Ram Nath, he had visited the office of the society located at 110 Sri Niwas Puri, New Delhi-65 where Hem Raj, Secretary of the society met him and produced all the said documents. Perusal of the documents reveals that all the documents were attested by Mr. Hem Raj being the Secretary of the society. It further reveals that most of the documents bear the signatures of Mr. K. P. Singh, Ms. Sarita, Mr. Hem Raj and Mr. Ram Gopal Gupta being the President, Vice President, Secretary and Treasurer of the society respectively and some documents also bear the signature of Mr. Ram Avtar. Their signatures including some writings were marked by the investigating officer as Q220 to Q222, Q224 to Q226, Q228 to Q230, Q232 to Q234, Q236 to Q238, Q241 to Q246, Q257 to Q260, Q263, Q270, Q274, Q276, Q278, Q280, Q282, Q284, Q285, Q287 to Q424.
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45. Now question arises who were the persons namely Mr. K. P. Singh, Ms. Sarita, Mr. Hem Raj, Mr. Ram Gopal Gupta and Mr. Ram Avtar?
(i) During investigation, the CBI had obtained the specimen writings of certain persons including accused Gokul Chand Aggarwal. The said specimen writings are marked as S-3 to S-77. Same are exhibited as Ex. PW114/A, Ex. PW113/A and Ex. PW135/84. The said specimen writings along with the above said questioned writings were sent to GEQD Shimla for the purpose of comparison. The documents were examined by two Experts namely Mr. N. C. Sood, GEQD and Mr. S. Ahmed, AGEQD and both arrived at the same conclusion. Their report is exhibited as Ex. PW133/C.
(ii) As per the report Ex. PW133/C, author of the above said questioned writings and specimen writing Marked S-3 to S-77 was one and the same person. It means that accused Gokul Chand Aggarwal had signed on the said documents in the name of Mr. K. P. Singh, Ms. Sarita, Mr. Hem Raj, Mr. Ram Gopal Gupta and Mr. Ram Avtar. This establishes that the application dated January 1, 2004 (Ex. PW6/B) was signed by accused Gokul Chand Aggarwal in the name of Mr. K. P. Singh showing himself as President of the society. Similarly, he also attested the documents in the name of Mr. Hem Raj showing himself as Secretary of the society at the time of producing the said documents to Mr. Ram Nath during inspection. It further establishes that accused Gokul Chand Aggarwal had also signed in the name of Ms. Sarita and Mr. Ram Gopal Gupta who were shown as Vice President and Treasurer respectively in the society. He had also CBI No. 78/2016 (Old No. 24/2008) Page 60 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) signed in the name of Mr. Ram Avtar showing him as Election Officer. It also establishes that the nomination forms, which were marked Q248 to Q269 were also filled up by accused Gokul Chand Aggarwal. This further shows that the minutes of the meetings shown to be held on September 28, 2003 and September 30, 2003 were prepared by him.
46. At the time of inspection, accused Ram Nath had also obtained the signature of Mr. Hem Raj on his report and the said signature is marked as Q217. As per the report Ex. PW133/C, accused Gopal Chand Aggarwal was the author of said signature.
47. As per the file (Ex. PW132/B2), Mr. Faiz Mohd. Grade- II was appointed to conduct physical verification door to door of members of the society. Accordingly, he submitted his report Ex. {PW6/O (colly)} along with the documents, reference to which was given in the office note dated March 1, 2004. In the said note, the said documents are referred to at page number P152/C to P208/C. Perusal of the said documents reveals that some are the certificates purportedly obtained from the members; some are share certificates and membership receipts. The share certificates are purportedly signed by Mr. Ram Gopal Gupta, Mr. K. P. Singh and Mr. Hem Raj being the Treasurer, President and Secretary of the society respectively. Their signatures on the said certificates were marked during investigation as Q50, Q51, Q52, Q58 to Q60, Q67, Q68, Q69, Q75, Q76, Q77, Q83, Q84, Q85, Q92, Q93, Q94, Q101, Q102, Q103, Q110 to Q112, Q119 to Q121, Q128 to Q130, Q137 to Q139 Q152 to Q154, Q167 to Q169, Q176 to Q178 and Q186 to Q188.
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(i) The certificates purportedly signed by Ms. Sarita and Ms. Asha Devi were also annexed by accused Faiz Mohd.(A5) along with his report. During investigation, signatures of Ms. Sarita and Ms. Asha Devi were marked as Q106 and Q115 respectively.
(ii) Perusal of the report (Ex. PW133/C) makes it clear that the author of above questioned writings/signatures was also accused Gokul Chand Aggarwal. This establishes that accused Gokul Chand Aggarwal had forged the signature of Mr. K. P. Singh, Mr. Hem Raj and Mr. Ram Gopal Gupta on the share certificates. It further proves that he had also forged the signature of Ms. Sarita and Ms. Asha Devi on the certificates purportedly issued by them.
48. Perusal of the note dated March 1, 2004 further reveals that the Secretary of the society had filed affidavits in support of the resignations and enrollments along with the final list and the said affidavits are placed at serial no. P142/C to P150/C. Perusal of the said documents reveals that the same are the affidavits of Mr. Hem Raj s/o Mr. Gopal Dass. Along with the said affidavits, affidavit of Mr. K. P. Singh, being the President of the society was also filed. During investigation, purported signatures of Mr. K. P. Singh were marked as Q189 and Q191 whereas purported signatures of Hem Raj were marked as Q191A, Q193, Q194, Q196, Q197, Q199, Q201, Q203, Q205, Q207, Q210 and Q211.
(i) Perusal of the report (Ex. PW133/C) makes it clear that the author of said signatures was none other than accused Gokul Chand Aggarwal. This establishes that he had forged the signatures of CBI No. 78/2016 (Old No. 24/2008) Page 62 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Mr. Hem Raj and Mr. K. P. Singh on the affidavits, which were filed in the office of RCS.
49. As per the note dated March 1, 2004 (Ex. PW6/I), the society had also produced the photocopy of resignation letters of the members and the same were placed at serial no. P378/C to P446/C. Similarly, society also filed the photostate copy of Resolution passed in the MC meeting on May 24, 1985 and July 25, 1985. Perusal of the copy of resignation letters reveals that the same were attested by Mr. Hem Raj being the Secretary of the society and his signatures are appearing at point Mark Q485 to Q553.
50. From the report (Ex. PW133/C) it becomes clear that the author of said signatures was accused Gokul Chand Aggarwal. This establishes that he had also forged the signatures of Mr. Hem Raj on the copy of resignation letters of numerous members and the same were furnished to the RCS for the purpose of revival of the society.
51. From the note (Ex. PW6/I), it also becomes clear that society had furnished the copy of application forms for membership and same are placed at serial no. P225/C to P372/C. Perusal of the said application forms reveals that same were also attested by Mr. Hem Raj being the Secretary of the society and his signatures were given Marked Q559 to Q707.
52. As per the report (Ex. PW133/C), author of said signatures was also accused Gokul Chand Aggarwal. This establishes that he had attested the copy of said forms by forging the CBI No. 78/2016 (Old No. 24/2008) Page 63 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) signatures of Mr. Hem Raj, who was shown as Secretary of the society.
53. As per note (Ex. PW6/I), society had also filed the copy of affidavits of all of the members, which are placed at serial no. P1/C to P1/49. Perusal of the same reveals that same are the affidavits of individual member to the effect that at the time of taking the membership, they were residing in Delhi and their spouse were not the member in any Group Housing Society in Delhi; nor their spouse or dependent children owned any freehold or leasehold property in Delhi. Along with the said affidavits, society also filed the affidavits of Mr. Avtar Singh, Mr. Ram Gupal Gupta, Mr. K. P. Singh, Ms. Asha Devi, Mr. Hem Raj, Ms. Sarita and Mr. Prem Prakash. During investigation signatures of said persons were marked as Q899, Q900, Q920, Q921, Q1106, Q1107, Q1157, Q1158, Q1207, Q1208, Q1260, Q1261, Q1296 and Q1297.
54. As per GEQD report Ex. PW133/C, author of above said questioned signatures was none other than accused Gokul Chand Aggarwal. This further establishes that Gokul Chand Aggarwal had also forged the signatures of the said persons and the said affidavits were submitted to the RCS at the time of seeking revival of the society.
55. As per the note (Ex. PW6/I), society had also produced the original records i.e. list of resigned and enrolled members, accounts statements, cash in hand certificates from 1983- 84 to March 31, 2003 and also produced the list of members of CBI No. 78/2016 (Old No. 24/2008) Page 64 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Management Committee. The said documents bear the signatures in original of Mr. K. P. Singh, Mr. Hem Raj and Mr. Ram Gopal Gupta being the President, Secretary and Treasure of the society respectively. During investigation, said signatures were given marked Q1327 to Q1329, Q1331, Q1333, Q1336, Q1338, Q1340, Q1342, Q1344, Q1346, Q1348, Q1350 to Q1352, Q1354, Q1356, Q1358 to Q1360, Q1362, Q1364, Q1366 to Q1368, Q1370, Q1372, Q1374 to Q1376, Q1378, Q1380, Q1382 to Q1384, Q1386, Q1388, Q1390 to Q1392, Q1394, Q1396, Q1398 to Q1400, Q1402, Q1404, Q1406 to Q1408, Q1410, Q1412, Q1414, Q1415, Q1416, Q1418, Q1420 to 1424, Q1422 to Q1426, Q1428, Q1430, Q1431, Q1432, Q1434, Q1436, Q1438 to Q1440, Q1442, Q1444, Q1446 to Q1448, Q1450, Q1452, Q1454 to Q1456, Q1458, Q1460, Q1462 to Q1464, Q1466, Q1468, Q1470 to Q1472, Q1474, Q1476, Q1478, Q1479, Q1480, Q1482, Q1484, Q1486, Q1488, Q1490, Q1492, Q1494, Q1496- Q1498, Q1500, Q1502, Q1504, Q1506, Q1508, Q1510, Q1512, Q1514, Q1516, Q1518, Q1520, Q1521, Q1522, Q1524, Q1526, Q1528, Q1530, Q1532, Q1534, Q1536 to Q1538.
56. As per Ex. PW133/C, the author of above said questioned signatures was also accused Gokul Chand Aggarwal. This further establishes that A2 was the person who had forged the signatures of above said persons on the said documents and same were produced before the RCS at the time of verification of the records.
57. From the aforesaid discussion, it becomes abundantly clear that the application dated January 1, 2004 (Ex.
CBI No. 78/2016 (Old No. 24/2008) Page 65 of 144CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) PW6/B) was submitted before the RCS office for cancellation of winding up order with further request to allow the society to function so that the purpose for which the society was registered may be fulfil. On the said application, A2 forged the signature of Mr. K. P. Singh who purportedly signed the application being the President of society. It has also been established that accused Gokul Chand Aggarwal had also forged the signatures of several persons such as Mr. K. P. Singh, Mr. Hem Raj, Ms. Sarita, Mr. Ram Gopal Gupta and Mr. Ram Avtar on the copies of documents which were given to Mr. Ram Nath, Inspecting Officer at the time of inspection. It has also been established that accused Gokul Chand Aggarwal had also forged the signatures of above said persons on the original of documents which were produced before the RCS at the time of verification. It has also been established that accused Gokul Chand Aggarwal had also forged the signatures of Mr. K. P. Singh, Mr. Hem Raj and Mr. Ram Gopal Gupta on the copies of share certificates which were handed over to accused Faiz Mohd at the time of physical verification of members and at that time, he had also forged the signatures of some members on their certificates. It has also been established that accused Gokul Chand Aggarwal had also forged the signatures of some members on the affidavits, which were submitted before the RCS at the time of seeking revival of the society and he also forged the signatures of Mr. Hem Raj on the application forms of the members and their resignation letters.
(i) Since, accused Gokul Chand Aggarwal had forged the signatures of above said persons, his acts fulfil the condition of Section 463 IPC, which defines forgery. Since, the forgery was CBI No. 78/2016 (Old No. 24/2008) Page 66 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) committed with an intention to cheat RCS for the purpose of obtaining a favourable order i.e. cancellation of winding up order, the above said acts of accused Gokul Chand Aggarwal attract the provisions of Section 468 IPC. Since, the forged documents were submitted before the RCS for the purpose of cancellation of winding up order and revival of the society, it can safely be culled out that he had fraudulently and dishonestly used the said documents as genuine documents, thus he is also liable for the offence punishable under Section 471 r/w 468 IPC.
(ii) In order to prove the guilt of accused Gokul Chand Aggarwal for the offence punishable under Section 420 IPC, prosecution has to establish that by presenting the said forged documents, accused Gokul Chand Aggarwal dishonestly induced the RCS to deliver any 'property' to any person, or to make alter or destroy the whole or any part of a 'valuable security', or anything which was signed or sealed or which could be 'capable' on being converted into a 'valuable security'. Admittedly, by producing the said forged documents before the RCS for the purpose of cancellation of winding up order, RCS could not deliver any property to any person. The valuable security is defined under Section 30 of IPC, which reads as under:-
"Valuable Security":-
The words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or where by any person acknowledges that he lies under CBI No. 78/2016 (Old No. 24/2008) Page 67 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) legal liability, or has not a certain legal right.
(emphasis supplied)
(ii) To prove a document as valuable security, it is the duty of CBI to establish that the cancellation of winding up order would create a legal right or it would extend, transfer, restrict, extinguish or release any such legal right. But there is nothing on record, which may show that the cancellation of winding up order or revival order would create a legal right either in favour of society or in favour of accused Gokul Chand Aggarwal. Mere fact that after revival order, society would become eligible to make a prayer for land in accordance with the rules and regulations of the RCS and DDA does not mean that the cancellation of winding up order had created any legal right in favour of the society. Because just by cancellation of winding up order, society would not become entitle to get land automatically. Since, the society could not claim land as a matter of right after cancellation of winding up order, I am of the opinion that revival order cannot be termed as 'valuable security'. Thus, to my mind, CBI has failed to satisfy the requirements of Section 420 IPC. However, the acts of accused Gokul Chand Aggarwal fulfils all the requirements of cheating as defined under Section 415 IPC, which is punishable under Section 417 IPC.
58. PW1 Satbir Singh, a stamp vendor deposed that he knew accused Gokul Chand Aggarwal as he used to visit him to buy stamp papers in bulk and further testified that accused Gokul Chand Aggarwal told him that he used to deal in property. First time, accused CBI No. 78/2016 (Old No. 24/2008) Page 68 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Gokul Chand Aggarwal came along with a list of more than 100 persons and told him that he had to purchase stamp papers of ` 10/- each for the said persons. Thereafter, accused Gokul Chand Aggarwal used to send his man along with the list of persons to buy stamp papers and on the basis of list provided by accused Gokul Chand Aggarwal or his representative, he used to make entry in the register in the name of persons as mentioned in the list. On the next day, he used to supply stamp papers after putting the seal and name of buyer either to Gokul Chand Aggarwal or his representative. When 149 stamp papers used in the present case were shown to PW1, he deposed that these stamp papers were purchased from him either by accused Gokul Chand Aggarwal or his man on February 21, 2004 and the said stamp papers were exhibited as Ex. PW1/A (colly). During cross-examination, he admitted that in the register, entries were made in the hand of different persons but he explained that the same were made either by him or by his employees. No doubt, he admitted in his cross-examination that whenever a list was produced by a person claiming himself to be a representative of Gokul Chand Aggarwal, he never confirmed from Gokul Chand Aggarwal on phone whether he had sent any such person or not. PW1 deposed that he did not remember whether on February 21, 2004 Gokul Chand Aggarwal came to his shop to buy stamp papers or not. To my mind, testimony of PW1 is not helpful to the accused in any manner because there are ample evidence on record to show that the stamp papers that were sold by PW1 were used in this case and A2 is the person who signed the revival application and also forged the signatures of numerous persons.
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59. PW87 Satish Mathur, the then Dy. Registrar deposed that the order dated March 13, 1989 (Ex. PW87/A) does not bear his signature at point A (Q286). The said document was handed over to A4 during inspection by Mr. Hem Raj. As already held that it was accused Gokul Chand Aggarwal who forged the signatures of Hem Raj, thus it can safely be culled out that it was A2 who handed over the said document to A4. This further establishes that A1 had handed over the forged winding up order to A4.
60. In view of the aforesaid discussion, I am of the considered opinion that accused Gokul Chand Aggarwal (A1) is liable for the offence punishable under Section 417/468 IPC and under Section 471 r/w 468 IPC.
Findings qua accused Ram Nath (A4):-
61. As per file (Ex. PW132/B2), accused Ram Nath (A4) was appointed as Inspecting officer under Section 54 of DCS Act to conduct inspection. In this regard, the order was passed on January 8, 2004 and office order was issued on January 12, 2004. Pursuant to the said order, accused Ram Nath had submitted his report Ex. PW6/E. In his report, he recited that vide office order No. F47/578/GH/Coop/South/54 dated January 12, 2004, he was appointed as Inspecting officer.
(i) In his report, he certified that he had visited the office of the society at 110 Sri Niwas Puri, New Delhi where he met with Mr. Hem Raj, Secretary of the society, who informed him that there were CBI No. 78/2016 (Old No. 24/2008) Page 70 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) 149 members in the society, but the list of members had not been approved by the RCS office till date. He further certified that as per record of the society, society had shifted its office from D-53/C, Kailash Colony, New Delhi to 110 Sri Niwas Puri, New Delhi.
(ii) Since A4 in his report claimed that he visited the office of society at 110 Sri Niwas Puri, New Delhi-65 where he met with Mr. Hem Raj, Secretary of the society, question arises whether any such address was in existence or not?
(ii) In order to prove that no such address was in existence, CBI has examined the postman as PW46 Mr. Deen Dayal, who in his testimony deposed that he was posted in Sri Niwas Puri, Post office since 1984 and due to that reason, he had knowledge about the entire area. He categorically deposed that the address 110 Sri Niwas Puri, New Delhi is not located in the area of Sri Niwas Puri because in Sri Niwas Puri, the number of premises is as per block such as A, B, C, D, E, F, G, H etc..etc. The testimony of the said witness remained unchallenged during trial. Since, the testimony is remained unchallenged, there is no reason to disbelieve the deposition of PW46.
(iii) PW135 Mr. U. K. Goswami, investigating officer in his cross-examination admitted that he had sent a notice through post at 110 Sri Niwas Puri and the same was returned with the report that the address was incomplete. He further testified that though he made efforts to trace out the said address in different block of Sri Niwas but no such address was found in existence where society was running. In CBI No. 78/2016 (Old No. 24/2008) Page 71 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) other words, PW135 corroborated the testimony of PW46.
(iv) From the testimony of PW46 and PW135, it can safely be culled out that the address '110 Sri Niwas Puri, New Delhi' was not in existence. Since, A4 claimed in his report (Ex. PW6/E) that he had visited at the said address and met with Mr. Hem Raj, Secretary of the society at the said address, at the said address, in terms of Section 106 of Evidence Act, onus is shifted upon him to establish that the such address was in existence. But during trial, he failed to produce any such evidence. In the absence of any such evidence, I do not find any reason to disbelieve the testimony of PW46 and PW135. Since, the address '110 Sri Niwas Puri' was not in existence, question of visiting A4 at the said address does not arise. This itself proves that he had not visited the office of society at 110 Sri Niwas Puri, New Delhi. As already discussed that accused Gokul Chand Aggarwal had signed in the name of Mr. Hem Raj. This further establishes that A4 had never visited at 110 Sri Niwas Puri, New Delhi. Moreover, A4 had not claimed in his statement under Section 313 Cr.P.C that he met with accused Gokul Chand Aggarwal who represented himself as Hem Raj. This establishes that A4 had submitted the report (Ex. PW6/E) without visiting the office of society as mentioned in the report. No doubt, A4 had taken the signature of the person, who produced the record before him, on the form of inspection report and the said signature is marked as Q217. As per the GEQD report, (Ex. PW133/C), Gokul Chand Aggarwal was the author of Q217. This further establishes that accused Ram Nath had prepared a false report at the behest of Gokul Chand Aggarwal.
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(v) In his statement recorded under Section 313 Cr.P.C, A4 did not dispute about the said report. However, he took the plea that inspection under Section 54 of DCS Act, 1972 was not a pre- condition to revive the society and further took the plea that if, he had violated any provision of DCS Act or Rules during inspection, he could be held liable under DCS Act but not under Penal Code.
(vi) Assuming for the sake of arguments that inspection under Section 54 of the DCS Act was not a pre-condition to revive the society, but it does not help A4 in any manner because once RCS decided to conduct inspection under Section 54 of the Act, it becomes the paramount duty of A4, being the public servant, to submit a true and correct report by visiting the premises as directed. But he failed to do so. It is pertinent to state that under Section 63 of the Act, RCS has ample power to make any inquiry before passing the order. Under Section 54 of the Act, RCS is competent to conduct an inspection of record of the society. In the instant case, before passing the revival order, RCS decided to conduct an inquiry to inspect the record of the society and further directed for physical verification of the members. Thus, it cannot be said that the RCS had acted without any jurisdiction or the reports called for were not relevant for passing the revival order.
(vii). No doubt, as per section 63 (4) of the DCS Act, copy of the order passed by RCS under Section 63 of the Act was required to be sent to the society through registered post. On the basis of said provision, it was argued that the RCS must have sent a copy of revival order to the society at its registered office i.e. 110 Srinivas Puri, New Delhi but there is nothing on record which may show that the said CBI No. 78/2016 (Old No. 24/2008) Page 73 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) envelope was returned undelivered. Accordingly, it was argued that this shows that the address was in existence. It was urged that if address was in existence, it can not be said that A4 had submitted the report without visiting the office of society. But to my mind, the said contention is without any substance because there is nothing on record which may show that the copy of revival order was ever sent to the society through registered post. During trial, no attempt was made by the accused to produce any document to establish that copy of revival order was ever sent to the society at its registered office through registered post. In the absence of any such evidence I do not find any force in the contention raised by the counsel.
(viii) Since A4 was working as public servant when he was appointed as Inspecting Officer to conduct an inspection, it was his duty to submit a true and correct inspection report to the office but he failed to do so. By submitting a false report, he abused his position as a public servant. No doubt, PW135 in his cross-examination admitted that he could not find any evidence that A4 had obtained any illegal gratification or valuable thing for submitting his report. But, it is also undisputed fact that the report was submitted in the year 2004 whereas the case was registered in the year 2008, thus it was not plausible for the investigating officer to find any direct evidence to prove the fact that A4 had received any valuable thing or pecuniary advantage either for himself or for any other person. But from the circumstances and the fact that A4 failed to furnish any explanation whatsoever how he visited the premises 110, Sri Niwas Puri, New Delhi when the address was not in existence, it can safely be culled out that A4 must have submitted a false report in favour of accused CBI No. 78/2016 (Old No. 24/2008) Page 74 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Gopal Chand Aggarwal after obtaining some valuable thing or a pecuniary advantage otherwise there was no occasion for him to submit a false report without visiting the premises.
62. In view of the aforesaid discussion, I am of the considered opinion that prosecution has succeeded to prove the guilt of accused Ram Nath (A4) for the offence punishable under Section 13(2) r/w 13(1)(d)(ii) of PC Act beyond the shadow of all reasonable doubts, accordingly, I hereby hold him guilty thereunder.
Findings qua accused Faiz Mohd. (A5):-
63. As per file (Ex. PW132/B2), RCS vide order dated February 12, 2004 directed the concerned AR to conduct spot verification of members and submit the report. Pursuant to said order, accused Faiz Mohd, GR-II was appointed to conduct physical verification on February 17, 2004. The formal order bearing No. F47/578/GH/S/Coop/127 dated February 20, 2004 was issued whereby accused Faiz Mohd. was appointed to conduct the physical verification of the members at random. Pursuant to the said order, accused Faiz Mohd. had submitted his report Ex. PW6/O (colly) on February 25, 2004.
(i) In his statement recorded under Section 313 Cr.P.C, accused Faiz Mohd did not dispute that he did not submit the report, rather took the plea that CBI failed to bring any evidence on record to establish that he had obtained or demand any pecuniary advantage either for himself or for any other person. It was further submitted that CBI No. 78/2016 (Old No. 24/2008) Page 75 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) no presumption can be drawn against him that he had obtained any pecuniary advantage either for himself or for any other person. It was further submitted that no land was alloted to the society.
(ii) Vide his report {Ex. PW6/O (colly)}, accused Faiz Mohd. certified that he had physically verified the members at random during spot verification and he had also obtained photocopy of relevant documents from the members. He also obtained certificates from the members wherein they certified that they were bonafide members of the society in question and they signed the said certificates after mentioning their name and addresses.
64. Perusal of the report reveals that he had physically verified as many as 17 members i.e. Mr. Parkash Seth (MS No. 71), Mr. M. R. Arora (MS No. 98), Mr. S. N. Bhatia (MS No. 88), Mr. Lekh Raj Narang (MS No. 79), Mr. Jeevan Dass (MS No. 217),Mr. S. Mahajan (MS No. 106), Mr. Raj Kumar (MS No. 142), Mr. Vinod Kumar (MS No. 116), Ms. Kalpna Rani (MS No. 145), Ms. Sarita (MS No. 206), Ms. Asha Devi (MS No. 171), Mr. Ram Singh (MS No. 192), Mr. G. D. Bagga (MS No. 163), Mr. M.L.Anand (MS No. 126), Mohd. Akram (MS No. 180), Mr. K. K.Kapoor (MS No. 155) and Ms. Urmila Jain (MS No. 136).
65. The prosecution case is that the said members were fictitious and they were not residing at the addresses mentioned in the certificates. In order to prove this fact prosecution has examined certain witnesses namely PW14, PW25, PW26, PW29, PW47, PW51, PW90, PW91, PW93, PW95, PW98, PW106 and PW107.
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(i) PW14 Mr. Ram Niwas deposed that he was posted at Hauz Khas Post office since 1989 and testified that the address A-98 is not in existence in Hauz Khas area because in A Block, there are only 73 houses. As per the certificate, Ms. Asha Devi was shown residing at the said address.
(ii) PW25 Mr. Sher Singh deposed that he was posted in Chanakaya Puri Post office since 1989 and testified that the address C-304 Moti Bagh is not in existence as in C Block, there are only 240 houses. As per the certificate, Mr. G. D. Bagga was shown residing at the said address.
(iii) PW26 Mr. Ramesh Chander deposed that he was posted at Post Office Kashmire Gate since 1980 and used to deliver dak in the area of Azad Market. He further testified that the address G- 65/118, Azad Market is not in existence in the said area. However, Mr. Jeevan Dass was shown residing at the said address.
(iv) PW47 Mr. Ramesh Chand Vashisht deposed that he was posted in Subzi Mandi Post office since 1985 and used to deliver dak in the area of Model Town. He testified that the address 37/8, Model Town is not in existence in the said area. But, Ms. Sarita was shown residing at the said address.
(v) PW39 Mr. Dhan Singh deposed that he was posted at Post Office Pahar Ganj since 1980 and testified that the address 960 main Bazar, Pahar Ganj is wrong address as there is no such house by this number in main bazar. However, Mr. M. L. Anand was shown CBI No. 78/2016 (Old No. 24/2008) Page 77 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) residing at the said address.
(vi) PW51 Mr. Gyan Parkash deposed that he was posted at Post Office Narain Vihar since 1990 and used to deliver dak in the area of Narain Vihar. He further testified that the address D-48, Narain Vihar is not in existence in the said area. He further testified that Mr. K. K. Kapoor was not residing at the given address. However, Mr. K. K. Kapoor was shown residing at the said address.
(vii) PW90 ASI Om Parkash deposed that he was posted in CBI. He further deposed that he was deputed to serve the notices upon Smt. Urmila Jain r/o F-74, Hari Nagar; Mohd. Akram r/o 25/32, Sector-8, Rohini, Delhi and Mr. Ram Singh r/o E-18/123, Sector-8, Rohini. He deposed that he visited the above said addresses to serve the notices but found that the given addresses were incorrect, accordingly, he returned the notices with his reports that the given addresses were incorrect. His reports are PW90/B, PW90/E and Ex. PW90/F respectively. However in his report, A5 had shown Ms. Urmila Jain, Mohd. Akram and Mr. Ram Nath residing at the given addresses.
(viii) PW93 Insp. Umrav Meena was also deputed to serve notices at certain members including Mr. Parkash Seth r/o 42/7, Govind Puri, Kalkaji, Delhi and Mr. Lekh Raj Narang, r/o B-84, Saket, Delhi. However, he deposed that addresses were incorrect as he could not locate the same. Accordingly, he returned the notices with his report. The reports are Ex. PW93/A and PW93/B respectively. However, accused Faiz Mohd had shown in his report that Mr. Parkash Seth and Mr. Lekh Raj were residing at the given addresses.
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(ix) PW91 Mr. Om Parkash deposed that he is posted in CBI as constable and was deputed to serve notices upon certain members including Ms. Kalpna Rani R/o J-23, Sanjay Nagar, Gulabi Bagh. He testified that on inquiry said address was found incorrect as the said address was not in existence. Accordingly, he returned the notice undelivered vide his report Ex. PW91/B. However, accused Faiz Mohd. shown that Ms. Kalpna Rani was residing at the given address.
(x) PW95 ASI Yaad Ram deposed that he was deputed to serve notices on certain members including Mr. S. N. Bhatia r/o B- 18/9, Inder Puri, Delhi and Mr. S. Mahajan r/o RU-110, Pitam Pura, Delhi. He testified that though both the addresses were correct but neither Mr. S.N Bhatia nor Mr. S. Mahajan was found residing at the given addresses. Accordingly, he made report on the notices vide Ex. PW95/H and PW95/N and returned the same to the investigating officer. However, accused Faiz Mohd. shown that Mr. S. N. Bhatia and Mr. S. Mahajan were residing at the given addresses.
(xi) PW98 constable Om Parkash deposed that he was also deputed to serve the notices upon several members including Mr. M. R. Arora r/o J-18/56, WEA, Karol Bagh Extt. Delhi. He further testified that on inquiry address was found incorrect. Accordingly, he made an endorsement and returned the same to the investigating officer and his report is Ex. PW98/B. However, accused Faiz Mohd. in his report shown that Mr. M. R. Arora was residing at the given address.
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(xii) PW107 SI Lakhan Pal Singh deposed that he was also deputed to serve notices upon several members including Mr. Vinod Kumar, R/o 83 Phatak Wali Gali, Khajuri Khas, Delhi. He testified that on inquiry, it was revealed that address was incorrect. Accordingly, he returned the notices after making his report Ex. PW107/E. However, accused Faiz Mohd in his report had shown that Mr. Vinod Kumar was residing at the given address.
(xiii) PW130 Mr. Rajender Prasad, Incharge of Electoral Registration Office and SDM Kalkaji deposed that Mr. Raj Kumar was not found enrolled as voter at the given address. However, accused Faiz Mohd had shown him residing at B-4, Badar Pur, Delhi.
66. From the aforesaid discussion, it can safely be culled out that the members whose physical verification was conducted by accused Faiz Mohd. were not found residing at the given addresses as addresses of all the members except two were found either incorrect or not in existence. Though some of the witnesses were cross-examined but nothing could be extracted during their cross- examination, which may cast any doubt on their deposition.
67. Since, accused Faiz Mohd. claimed that he personally visited at the above said witnesses at the time of conducting physical verification, in terms of Section 106 of Indian Evidence Act, onus is shifted upon him to establish that the said addresses were in existence. But during trial, he failed to adduce any evidence to establish this fact. In the absence of any contrary evidence on record, I do not find any reason to disbelieve the testimony of witnesses CBI No. 78/2016 (Old No. 24/2008) Page 80 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) examined by the prosecution.
68. From the aforesaid discussion, it can safely be culled out that the addresses of all the members except two were either incorrect or not in existence. It means that there was no occasion for accused Faiz Mohd. to conduct physical verification at the addresses mentioned in the certificate of the members.
69. At the time of taking certificates, accused Faiz Mohd had also obtained the signatures of above said members on the certificates. Signature of Ms. Sarita and Ms. Asha Devi were given marked as Mark Q106 and Q115. As per the GEQD report (Ex. PW133/C), author of the said signatures was accused Gokul Chand Aggarwal. This further establishes that accused Faiz Mohd. had not visited the members at the time of conducting physical verification, rather he prepared the report at the instance of accused Gokul Chand Aggarwal otherwise there was no occasion for accused Gokul Chand Aggarwal to sign in the name of above said two females.
70. Since accused Faiz Mohd. was appointed by his office to conduct physical verification of members at random, it was his duty to visit the members at their addresses and submit true and correct report. But from the testimony of above said witnesses, it becomes crystal clear that accused Faiz Mohd. had submitted a false report without visiting the addresses of the members. Accordingly, I am of the considered opinion that by submitting a false report, accused Faiz Mohd. had abused his official position.
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71. No doubt, PW135 in his testimony deposed that during investigation no evidence could be collected to establish that the public servants including A5 had obtained any monetary advantage or valuable thing either for himself or for any other person. But it is also undisputed fact that the report was submitted by A5 on February 25, 2004 whereas the FIR was registered in the year 2008. Due to long gap in the submission of report and registration of FIR, it was not plausible to obtain any direct evidence that accused Faiz Mohd. had submitted the report after obtaining monetary benefit or valuable thing either for himself or for any other person. But from the circumstances of the case, it can safely be culled out that he must have submitted the false report after obtaining monetary advantage or valuable thing either for himself or for any other person.
72. In the light of the aforesaid discussion, I am of the considered opinion that prosecution has succeeded to bring home the guilt of accused Faiz Mohd. within four corners of Section 13(1)(d)(ii) of PC Act, which is punishable under Section 13(2) of PC Act. Accordingly, I hereby hold him guilty thereunder.
Findings qua accused Narayan Diwakar (A1):-
73. The role attributed to A1 is that he had allowed to reconstruct the file and also passed revival order without due diligence. It was further alleged that though in the revival order, it was recited that proper procedure was not followed at the time of winding up of the society, but he did not indicate how he came to know about the same in the absence of main file. Similarly, he relied on the CBI No. 78/2016 (Old No. 24/2008) Page 82 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) submission of counsel that Dy. Registrar was not competent to pass winding up order. But there is no evidence that such powers were not delegated to Dy. Registrar. It was further alleged that A1 had given general grounds at the time of revival of society. It was further alleged that though Ms. Rita Kaul, Advocate never appeared before him, but A1 had shown her appearance in his order.
74. In order to prove the guilt of A1, CBI has placed reliance on the deposition of PW6 Smt. Sunanda, the then Dealing Asstt, PW7 Neeranjan Singh, PW86 Smt. Rita Kaul, Advocate, PW87 Satish Mathur, the then Dy. Registrar, PW105 Mr. Gopal Singh Visht, the then LDC, PW110 Mr. Satya Prakash Sharma, the then UDC; PW118 Jagdish Kumar Baswala, the then Dy. Director and PW135 Mr. U. K. Goswami, investigating officer.
75. Perusal of the statement of above said witnesses, it becomes crystal clear that none of them except PW135 has uttered even a single word against A1.
76. Though PW6 is the dealing Assistant, she has not uttered even a single word against A1. If she has deposed against any person, it was A3 (Maan Singh) who had already passed away. But she has not uttered even a single word against A1. Similarly, other witnesses have not deposed anything against A1.
77. Now, I come to the facts of the case at hand. It is admitted case of the CBI that the application dated January 1, 2004 (Ex. PW6/B) was submitted in the office of AR with a request to cancel CBI No. 78/2016 (Old No. 24/2008) Page 83 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) the winding up order and allow the society to function so that the purpose for which the society was registered may be fulfil. The said letter was assigned by AR (A3) to the dealing Asstt (PW6). PW6 put up the said letter with the following proposal:-
"Keeping in view of the above, if agreed, a circular may be issued to all the zones/branches to search the main file of Shri Shiv Puri Group Housing Society, Ltd. within 15 days otherwise it will be presumed that no such file is lying in that zone/branch. Meanwhile an inspection under Section 54 of the DCS Act, 1972 may also be carried out to bring out the actual position of the society."
78. The said note was forwarded by A3 with a recommendation to approve the proposal to the Joint Registrar (South), who forwarded the file to RCS. Accordingly, the above said proposal was approved.
(i). Now question arises whether the issuance of circular to the branches/zones to trace the main file or to conduct inspection under Section 54 of the DCS Act to ascertain the actual position of the society was contrary to any provision of DCS Act or Rules or the same was arbitrary?
(ii) During the course of arguments learned Sr. Public Prosecutor appearing for CBI failed to point out any provision either from DCS Act or Rules that the above said procedure was contrary to the provision of either DCS Act or DCS Rules. Further, when the main CBI No. 78/2016 (Old No. 24/2008) Page 84 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) file was not traceable, the first step was required to trace the file by issuing a circular to all the zones/branches. Thus, to my mind, it cannot be said that the order for issuance of circular was either arbitrary or contrary to any provision of DCS Act or DCS Rules.
(iii) When a court question was put to PW135 about the precautions, which were required to be taken by the RCS at the time of reconstruction of the file, he deposed that there must be a computerised list of registered society with respective registration number, the said list should have been referred to by the RCS to ensure that there was atleast registration of the society with this number. Secondly, since the missing file followed with revival request, matter should have been taken very seriously not only to search the file but to make necessary internal investigation to authenticate reconstruction of file through various departments of RCS where the copies of letters of the file were sent and some suitable action should have also been taken against the erring officials for fixing responsibility. Further, the persons from whom the papers were being collected, their credential and identity should have been strictly verified and reasons for sitting over the matter of revival for 18 years should have been examined. Similarly, some of the original correspondence of RCS office with the Society should have also been called for to ascertain the genuineness of registration. When a Court question was put to him who told about the above said precautions, he deposed that nobody told him about the same and he deposed so because these were required by any prudent person.
(iv) From the deposition of PW135, it becomes clear that CBI No. 78/2016 (Old No. 24/2008) Page 85 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) during investigation, PW135 failed to collect any evidence to establish that the RCS was required to refer the computerized list to ascertain the registration members of the society or he should have conducted some investigation to authenticate reconstruction of the file and should have conducted some internal investigation to authenticate the reconstruction of the file and should have taken some action against the erring official prior to the order of reconstruction of the file. In the absence of any such evidence on record, it can safely be culled out that it was mere presumption of PW135 that the RCS should have followed the said procedure. Mere fact that A1 did not follow the procedure as considered proper by PW135 is not sufficient to impose any criminal liability. Further, there is no iota of evidence on record to suggest whether PW135 had given any opportunity to A1 to explain why he had not followed the above said procedure. Further, even during investigation PW135 failed to collect the computerised list on the pretext that RCS officials did not cooperate him but he even did not deem it appropriate to record the name of official/officer who did not cooperate him in providing the list of computerised list whereas it is admitted case of CBI that during investigation, CBI had seized all files of the society in question. Similarly, during investigation, PW135 failed to seize the original file of the society. Since, even the CBI could not trace out the original file of the society, it can safely be culled out that the file was not traceable when the revival order was passed. Further, mere fact that a circular was issued to search the file, it can not be said that there was any lapse either on the part of A1 or on the part of any official of RCS. Further, the above said proposal was also approved by Joint Registrar (South) by putting his signature. But surprisingly, no action was taken against him. It is also admitted case CBI No. 78/2016 (Old No. 24/2008) Page 86 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) of CBI that proposal was recommended by the dealing assistant which was considered and forwarded by AR and JR and lastly it was approved by the RCS. Needless to say that under Section 54 of the DCS Act, RCS has ample power to check or inspect any record of the society. When A1 approved the proposal to invoke Section 54 of the DCS Act, it cannot be said that there was any malafide intention on his part. Rather, spot inspection would help the RCS to ascertain the actual activities of the society. Moreover, it is not the case of CBI that society in question was not registered with the registration number as mentioned in the application.
79. In view of the aforesaid discussion, I am of the considered opinion that no criminally can be imposed either upon A1 or any other official of RCS when A1 approved the above said proposal of the dealing Assistant.
80. As per file (Ex. PW132/B2), pursuant to the approval of A1, A3 appointed Ram Nath, Grade-II (A4) as Inspector to conduct inspection under Section 54 of the Act. It is pertinent to state that there is nothing on record, which may show that accused Ram Nath was appointed as Inspector at the instance of A1.
81. As per file (Ex. PW132/B2), on receipt of the report from A4, PW6 put up a note on February 4, 2004 highlighting the main points of the report and detail of the documents that were collected by A4 during inspection. It was also highlighted that despite the issuance of circular, the main file could not be traced out. Accordingly, PW6 proposed as under :-
CBI No. 78/2016 (Old No. 24/2008) Page 87 of 144CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) "Keeping in view of the above, if agreed, the above mentioned documents may kindly be taken on records in order to reconstitute the file of the society and submit the same to Worthy Registrar Corporative Societies for kind consideration of request of the society for revival under Section 63 (3) of the DCS Act, 1972 and to initiate quasi judicial proceedings in this regard."
(i) The said note was forwarded by A3 with the following recommendation:-
" Reference note from P2/ante. In view of the position explained proposal as at 'A' above may kindly be considered by the competent authority."
(ii) Thereafter, A3 sent the file to the Reader of the RCS. Reader of the RCS placed the file before the RCS with a recommendation to approve the proposal.
82. As per the file (Ex. PW132/B2), on February 12, 2004 Ms. Rita Kaul, Advocate represented the society before A1. A1 directed the Reader to send the file to the concerned zone for verification of the record pertaining to membership, audit and election. Further, it was also directed to conduct a spot verification of membership and submitting the report. The matter was adjourned to March 4, 2004.
83. From the above said note, it can safely be culled out that A1 had not acted in haste at the time of passing the revival order CBI No. 78/2016 (Old No. 24/2008) Page 88 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) mere on receipt of the report under Section 54. Rather, he directed for further inquiry to ascertain the actual facts.
84. From the file (Ex. PW132/B2), it becomes clear that pursuant to the above said directions of A1, accused Faiz Mohd. GR-II (A5) was appointed as Inspection officer for physical verification and pursuant to the direction, A5 submitted the report.
85. As per the above said file, on February 26, 2004, PW6 put up a note before A3 stating that Mr. Hem Raj, Secretary of the Society along with the record/documents of the society appeared and the record had been taken on record and cross-checked. It was also proposed if agreed, a detail proposal may be prepared as per the directions of Worthy RCS. The said proposal was approved by A3. It is pertinent to state that there is nothing on record, which may show that A5 was appointed as Inspecting officer at the instance of A1.
(i) Though from the above said note, it appears that Mr. Hem Raj, Secretary of the society produced the record before her and she had cross-checked the same. But in her testimony, she deposed that she had prepared the above said note (Ex. PW6/H) at the dictation of AR (South) i.e. A3. She further clarified that no such record was produced in her presence and she did not know any person by the name of Mr. Hem Raj. She further deposed that as per the above said note, Mr. Hem Raj had produce records/documents before Mr. Maan Singh (A3). From the note Ex. PW6/H and the deposition of PW6, it can safely be culled out that either the record was produced before A3 or before PW6 and either of them had CBI No. 78/2016 (Old No. 24/2008) Page 89 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) checked the same. But it is clear that the said record was neither produced before A1 nor he cross-checked the same.
86. From the file (Ex. PW132/B2), it is clear that on March 1, 2004 PW6 put up a detail note running into 12 pages (Ex. PW6/I colly) wherein she highlighted all the relevant facts including the facts mentioned in the application, report of A4, report of A5 and verification of record. It was also highlighted that since all the enrollments (149) had taken place prior to June 30, 1986, no verification is required for the same. She further highlighted that the society had produced the photocopy of all the documents and Secretary had also filed an affidavit about the genuineness of the record and owned the responsibility, if anything is found false in the claim of the society. It was also highlighted that all original records were produced for the verification. At last, PW6 proposed as under:-
In view of the above said stated facts the Worthy RCS may kindly considered the following:-
(a) Request of the society for revival of the society under Section 63(3) of DCS Act, 1972.
(b) Request of the society for approval of Freeze list of 149 members (placed at P1/C to P2/C for allotment of land.
87. Upon the said proposal, AR made his recommendation as under:-
May kindly glance through office note CBI No. 78/2016 (Old No. 24/2008) Page 90 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) from P5/N onwards. As per order dated February 12, 2004 by RCS (at P4/N) a spot/random verification was got conducted by Faiz Mohd, Gr.II Area Inspector. Now in view of the above note, the proposal as at may kindly be considered by the Competent Authority.
(i) Thereafter, he sent the file to the Reader of the RCS on March 3, 2004.
88. From the proceedings recorded on March 4, 2004, it can safely be culled out that Ms. Rita Kaul, Advocate represented the society before RCS. Officer of the concerned zone was also present and he explained the facts before the RCS. After hearing the submissions of both of them, A1 reserved the matter for order and passed the order on March 10, 2004.
89. Now question arises whether Ms. Rita Kaul, Advocate appeared before A1 or not?
(i) In this regard the testimony of PW86 Ms. Rita Kaul, Advocate is relevant. She deposed that she is a practising advocate. She further deposed that since her appearances have been noted down in the note dated February 12, 2004 and March 4, 2004, she could say that she might have appeared in this case before RCS. But she did not remember this fact. She further deposed that she knew Gokul Chand Aggarwal and Ashwani Sharma as they met her in the RCS office. But they did not talk to her about any particular society, however, she had causal discussion with them. Since, PW86 did not CBI No. 78/2016 (Old No. 24/2008) Page 91 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) support the prosecution case, she was got declared hostile and cross- examined by learned Public Prosecutor for CBI. When the statement dated August 8, 2006 recorded under Section 161 was shown to the witness, she deposed that she had not made any such statement to the investigating officer. Subsequently, she deposed that since the case is very old, she did not remember exactly. She also deposed that since she did not have any record in respect of the case, she can not tell exactly whether any such statement was recorded by the investigating officer or not. But she denied the suggestion that she had deliberately deposed falsely in order to save the accused persons.
90. From her deposition, it can safely be culled out that she did not support the prosecution case that she did not appear before RCS in the present matter. During trial, CBI failed to produce any other evidence to establish that PW86 did not appear before A1 and A1 had put her appearance in the file with some malafide intention just to show that the society was being represented by an advocate.
91. Perusal of revival order dated March 10, 2004 reveals that it runs into five pages wherein initially A1 mentioned about the submissions of AR (South) containing grounds of show cause notice issued to the society and since the society failed to respond the show cause notice, society was put under liquidation vide order dated March 13, 1989. Thereafter, A1 highlighted the submissions made by Ms. Rekha Kaul, Advocate. Then, he highlighted the facts of the report of AR. It was also pointed out by the concerned Zonal AR that since the liquidation proceedings were not finalized, action initiated under Section 63 of DCS Act, 1972, became a nullity and recommended the CBI No. 78/2016 (Old No. 24/2008) Page 92 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) case of the society for revival. After considering all these facts, A1 had passed the following order:-
"I have gone through the submissions made and affidavits filed by the President and Secretary of the society and the report submitted by the Asstt. Registrar (South). It was mentioned during the course of proceedings that the winding up order passed by the then Dy. Registrar, was not in accordance with the laid down procedure, while winding up the Society as the reasons given were not adequate for initiating such an extreme step leading to the winding up of the Society. If there was any mismanagement in the Society, it was appropriate to first initiate action u/s 32 of DCS Act, 1972 for placing the Society under supercession for setting right the working of the Society and then restoring the cooperative management. Such orders for winding up of a Society without proper application of mind is not conducive for revitalization and re-strengthening of the cooperative movement in Delhi. Moreover, during the course of arguments, the counsel of the Society also mentioned that Dy. Registrar who had passed order u/s 63 of DCS Act, 1972 was not competent to pass such an order as only the Registrar is competent to decide the matter u/s 63. There is also nothing on record to show that such powers u/s 63 exercisable by Registrar were delegated to the Dy. Registrar by the competent authority. It appears that during the time this order was passed, a large number of Societies were wound up in a mechanical manner without any valid and convincing reasons. It also appears that the Society was not given sufficient opportunity either to reply to the SCN issued to the Society or to rectify the shortcoming mentioned in the notice issued by the RCS.CBI No. 78/2016 (Old No. 24/2008) Page 93 of 144
CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) In support of the above contention, it is pertinent to add that vide his Order No. PA/RCS/2000/733-745 dated August 7, 2000, my Ld. Predecessor had issued a detailed instructions regarding the revival of those societies which were wound up in a large number but liquidation proceedings were not initiated or completed due to various reasons pointed out in the said order. He has further observed in the said order that the societies have been liquidated on very-very trivial matters like non attendance in the office of the society's representatives or non production of records and thereafter, liquidation proceedings have been taken up unilaterally. In some cases even communication to societies has not been sent. It is further observed that all such proceedings were the fate of the members at large is at stake, like those of de- registration u/s 19, liquidation and revival u/s 63 and supercession u/s 32 need to be taken up in a more reasoned manner and after following due process of law, i.e. by giving an opportunity of showing cause to the concerned Managing Committee of the Society and the speaking order has to be passed. In view of this, he directed that "henceforth, all the proceedings u/s 19 & 63 of the DCS Act, 1972 should be taken up in the Court of RCS."
Besides, on 18-12.1991, while disposing of an appeal against the winding up order of the Registrar, Cooperative Societies in respect of New Inderprastha CGHS Ltd., u/s 76 of the Delhi Cooperative Societies Act, 1972 (Mrs. Balwinder Kaur and Ors., Appellants vs. RCS and Ors.), the Hon`ble Lt. Governor had observed as under:-
"I am inclined to agree with the
submissions made by the Ld.
Counsel for the appellants that the
winding up of a Society is an
CBI No. 78/2016 (Old No. 24/2008) Page 94 of 144
CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) extreme step and should be used as a last resort. In the present case, a liberal view needs to be taken and the Society may be afforded another opportunity for its revival. The Society may be revived under the directions of the Registrar, Cooperative Societies, if necessary, under an Administrator."
In view of the facts and circumstances as stated above and taking into consideration that no final liquidation order has been passed, I, heN.Diwakar, Registrar Cooperative Societies, Govt. of NCT of Delhi, reby cancel the winding up order dated 13-03-1989 issued to the Sri Shiv Puri Coop. Group Housing Society Ltd., (Regd. No. 578/GH), in exercise of the powers vested in me u/s 63 (3) of the Delhi Cooperative Societies Act, 1972 with immediate effect. Consequently, the Sri Shiv Puri Coop. Group Housing Society Ltd., (Regd. No. 578/GH), is hereby revived with immediate effect, as the concerned Asstt. Registrar has already verified the list of 149 members, submitted by the Society subject to the condition that the pending audit shall be got completed within two months time.
In addition to above, keeping in view the principle of natural justice and cooperative spirit, I hereby appoint Sh. Narendra Singh, Gr.IV, of this department as Election Officer to conduct the election of the Managing Committee of the Society within two months of the issue of this order. The President/Secretary of the Society are directed to cooperate with the Election Officer so appointed, failing which action will be initiated against the Society as per law."
92. Now question arises whether the said order is contrary CBI No. 78/2016 (Old No. 24/2008) Page 95 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) to the provisions of DCS Act or Rules?
(i) Section 63 deals with the winding up of a cooperative society and same reads as under:-
Winding up of co-operative societies:-
(1) If the Registrar, after an inquiry has been held under section 55, or an inspection has been made under section 56, or on receipt of an application made by not less than three-fourths of the members of a co-operative society, is of the opinion that the society ought to be wound up, he may issue an order directing it to be wound up.
(2) The Registrar may of his own motion make an order directing the winding up of a co-operative society:
(a) where it is condition of the registration of the society that the society shall consist of at least ten members and the number of members has been reduced to less than ten, or
(b) where the co-operative society has not commenced working or has ceased to function in accordance with co-operative principles.
(3) The registrar may cancel an order for the winding up of a co-operative society at any time, in any case where, in his opinion, the society should continue to exist.
(4) A copy of such order shall be communicated by registered post to the society and to financing institutions, if any, CBI No. 78/2016 (Old No. 24/2008) Page 96 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) of which the society is a member.
(5) Notwithstanding anything contained in this section, no co-operative bank shall be wound up except with the previous sanction in writing of the Reserve Bank.
(emphasis supplied)
(ii) Under sub-Section (2) (b) to Section 63 of the DCS Act, Registrar has discretion to wind up the Society of his own where in his opinion, Society has not commenced working or ceased to function in accordance with cooperative principles. As per revival order, the society was put under liquidation on March 13, 1989 on the grounds that society had failed to achieve its objectives and not likely to achieve the same in near future, the society failed to act in accordance with the DCS Rules, 1973 and the provisions of registered bye-laws of the society; and the MC and other members of the society did not show interest in the functioning of the society. Thus, it can safely be culled out that society was put under liquidation in terms of Section 63 (2)(b) of DCS Act.
(iii) Under Section 66 of DCS Act, Registrar is required to appoint Liquidator after passing the order under 63 of the Act. During trial, CBI failed to produce any evidence whatsoever to establish that any such liquidator was appointed at the time of putting the society under liquidation.
(iv) Under Section 69 of the DCS Act, Registrar is competent to cancel the registration of the Society after considering the report of Liquidator submitted to him under Section 67 (3) of the CBI No. 78/2016 (Old No. 24/2008) Page 97 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Act and the Registrar was required to communicate the said order to the President of the Society and its Financial Institution. Indisputably, in the instant case, Registrar has not exercised his jurisdiction under Section 69 of the Act.
(v) Under Rule 105 of the DCS Rules, 1973, the time limit is prescribed for termination of liquidation proceedings. The Rule reads as under:-
Termination of Liquidation Proceedings:-
The winding up proceedings of a society shall be closed within one year from the date of the order of the winding up, unless the period is extended by the Registrar:-
Provided that the Registrar shall not grant any extension for a period exceeding six months at a time and three years in the aggregate, and shall immediately after the expiry of three years from the date of the order for winding up of the society, deem that the liquidation proceedings have been terminated if there are no central amount due to the Government or the Financing Bank by the society and pass an order terminating the liquidation proceedings.
Explanation: In the case of co-operative society which is under liquidation at the time of commencement of the Act, the order for winding up of the society shall be deemed for the purpose of this rule to have been passed on the date of such commencement.
(2) Notwithstanding anything contained in CBI No. 78/2016 (Old No. 24/2008) Page 98 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) the foregoing sub-rule the Registrar shall terminate the liquidation proceedings on receipt of the final report from the liquidator. The final report of the liquidator shall state that the liquidation proceedings of the society have been closed, and how the winding up has been conducted and the property and the claim of the society have been disposed of and shall include a statement showing a summary of the account of the winding up including the cost of liquidation, the amount (if any) standing to the credit of the society in liquidation, after paying off its liabilities including the share or interest of members, and suggest how the surplus should be utilised.
(3) The liquidator before submitting the final report may call a meeting of general body of the society and place the report before it if permitted by the Registrar.
(emphasis supplied)
93. Bare perusal of DCS Rule 105 makes it clear that the winding up proceeding is required to be closed within one year from the date of winding up order unless the time is extended by the Registrar. From the proviso to sub-Rule (1), it becomes crystal clear that the Registrar can extend the time initially for six months and maximum to the period of three years. However, after the expiry of period of three years, Registrar has no power to extend the time and in that circumstances, the liquidation proceedings shall be deemed terminated provided if, there is no central amount due towards government or Financial bank by the Society. Admittedly, in the instant case, there is no evidence on record that any such amount was due either towards the government or any financial bank, thus the CBI No. 78/2016 (Old No. 24/2008) Page 99 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) liquidation proceedings was required to be terminated after the expiry of period of three years. Admittedly, in the instant case, the winding up proceeding was not concluded within a period of three years as prescribed under Rule 105 (1) of DCS Rules, 1973, thus the liquidation proceedings shall be deemed to have been terminated after the expiry of period of three years.
(i) It is pertinent to state that during investigation no attempt was made to ascertain the cause of non-completion of liquidation proceedings within a period of three years.
(ii) Under Sub-Section (3) to Section 63 of DCS Act, 1973, Registrar has jurisdiction to cancel the winding up order of a cooperative society at any time where, in his opinion, the Society should continue to exist. In other words, Registrar has jurisdiction to cancel the winding up proceedings even before the expiry of period of three years as mentioned in Rule 105 (1) of DCS Rules, 1973. Though after the expiry of period of three years, no specific order is required to cancel the winding up proceedings because as per Rule 105, the proceedings shall deem to have been terminated. However, from the combined reading of Section 63(3) of DCS Act and Rule 105 of DCS Rule, 1973, it can safely be culled out that the Registrar is competent to cancel the winding up proceedings and to revive the Society even after the expiry of period of 3 years as mentioned under Rule 105 of DCS Rule, 1973.
94. It is admitted case of CBI that the society in question was put under liquidation in the year 1989 and during investigation CBI No. 78/2016 (Old No. 24/2008) Page 100 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) CBI failed to collect any evidence whatsoever to establish that the liquidation proceeding was completed within the period of three years or that liquidator had made any recommendation or that the Registrar had exercised his jurisdiction in terms of Section 69 of the DCS Act. Since the liquidation proceedings were not concluded within a period of three years, in terms of Rule 105, liquidation proceedings shall deem to have been terminated. In other words, in terms of Rule 105 of the DCS Rule, 1972, even there was no requirement to pass the revival order. Perusal of the revival order also reveals that the concerned Zonal AR submitted before the RCS that in the absence of finalization of liquidation proceedings; action initiated under Section 63 of DCS Act, 1972 had become a nullity and case was recommended for revival.
95. Further, at the time of reviving the society, A1 had given the reference of order dated August 7, 2000, passed by his Ld. predecessor wherein detailed instructions regarding revival of those societies, which were wound up in a large number but liquidation proceedings were not initiated or completed due to various reasons as pointed out in the said order, were issued. But during investigation no attempt was made to file the said order and no attempt was made how the revival order in question is contrary to the directions contained in the said order.
(i) At the time of passing the revival order, A1 had also placed reliance on in the case titled Mrs. Balvinder Kaur & Ors. vs. RCS & Ors. wherein Lt. Governor held that winding up of the society is an extreme step, accordingly, it should be used as a last resort. But CBI No. 78/2016 (Old No. 24/2008) Page 101 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) there is nothing on record which may show that in the instant case winding up order under Section 63 was passed as a last resort or not as during investigation CBI also failed to seize the original file of the society.
96. Indisputably, there is no evidence whatsoever on record that A1 had any knowledge or reason to believe that his subordinates i.e. A4 and A5 had submitted a false report in favour of the society. As already stated that even there is no evidence on record that the said officials were appointed at the instance of A1. In the absence of any such evidence, mere fact that A1 had acted on the basis of their reports as summarized in the note Ex. PW6/I, is not sufficient to impose any criminal liability against A1. As already stated that A1 had not acted in haste as A1 had not passed the revival order just on receipt of favourable report from A4. Rather, he directed for further scrutiny of the case and further directed to verify the original documents and spot verification of the members and thereafter, he had given a personal hearing to the representative of the society and after going through all the facts placed before him, he passed the revival order in question. Mere fact that A1 had passed the revival order, in the absence of any cogent evidence, I am of the view that passing of revival order is itself not sufficient to impose any criminal liability.
97. PW135 in his examination-in-chief deposed that it was Maan Singh who not only accepted the report of accused Ram Nath and Faiz Mohd without due diligence, but he also presented before higher officer including RCS that everything presented was correct CBI No. 78/2016 (Old No. 24/2008) Page 102 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) and duly examined by him. But in the very next breath he deposed that RCS had passed an arbitrary order without adhering to due procedure as the order was subject to certain conditions and it was ambiguous and apparently was not passed in good faith. But in view of the aforesaid discussion, I am of the view that it is seldom to hold that the order passed by A1 is ambiguous in any manner; rather it shows that it was passed after detail inquiry and due diligence and it is a quite eloquent. Mere fact that at the time of passing the revival order A1 had put two conditions i.e. to comply the audit within two months and directed to hold election within two months is not sufficient in any manner to show that the order was ambiguous rather it shows that the order was passed with due diligence and option was kept upon if anything adverse was found either during audit or election society would not be able to enjoy the fruits of revival order.
(i). When a court question was put to PW135 whether he had obtained any evidence of conspiracy between A1 on the one hand and other accused persons on the other hand except that he had dealt with the file in question being the RCS, he deposed that he could not obtain any such evidence but swiftly added that as generally evidence of conspiracy is not direct and is to be inferred from circumstances, which had already been discussed.
(ii). When a court question was put to PW135 whether he interrogated A1 or A1 made any statement before him, he said 'No'.
98. No doubt, conspiracy can be established from the circumstantial evidence but it is also the duty of prosecution to CBI No. 78/2016 (Old No. 24/2008) Page 103 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) produce all such circumstances and prove the same in accordance with law (reliance is placed on State of Madhya Pradesh Vs Sheetla Sahai and others (2009) 8 SCC 617)
99. However, in the instant case, during trial, CBI has failed to produce any circumstance which may help the prosecution to prove that A1 was in conspiracy with the other accused persons. Mere fact that he had dealt with the file being the RCS is itself not sufficient to prove the charges of conspiracy.
100. At last but not least, it is pertinent to point out that this Court is not sitting in the appeal of revival order passed by A1. Assuming for the sake of arguments that at the time of passing revival order, A1 had ignored some facts or gave some undue weightage to other facts, in the absence of any cogent evidence, is not sufficient to hold that either he had passed the said revival order being member of the conspiracy or he passed the same dishonestly or after obtaining any valuable thing or pecuniary advantage either for himself or for any other person.
101. In the light of aforesaid discussion, I am of the considered opinion that the evidences adduced by the CBI are not sufficient to prove the charges against A1 beyond the shadow of reasonable doubts. Accordingly, I hereby acquit him from all the charges.
Findings qua conspiracy between A2 on the one hand and A4 and A5 on the other hand:-
CBI No. 78/2016 (Old No. 24/2008) Page 104 of 144CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS)
102. It is well settled law that conspiracy can also be established through circumstantial evidence. But, it is the duty of prosecution to prove such circumstances by inducing independent evidence in accordance with law (reliance is placed on State of M. P. vs. Sheetla Sahai & others (supra).
(i) As already discussed that A4 had submitted a false report Ex. PW6/E. Similarly, A5 had also submitted a false report dated February 25, 2004 {Ex. PW6/O (colly)}. The act of A4 and A5 i.e. submitting false reports in favour of A2 shows that they were in conspiracy with A2 otherwise there was no occasion for them to submit the false reports in favour of society which would help A2 in getting a favourable order from RCS. This shows that A4 and A5 were in conspiracy with A2.
103. But question arises whether a separate sanction under Section 197 Cr.P.C qua their acts was required or not?
(i) In this regard, the observations made by Apex Court in Amrik Singh v. State of Pepsu AIR 1955 SC 309, Hori Ram Singh v. Emperor AIR 1939 FC 43 and Shreekantiah Ramayya Munipalli v. State of Bombay AIR 1955 SC 287 are relevant.
104. Since, last two judgments were dealt with in detail by the Apex Court in Amrik Singh v. State of Pepsu (supra) I deem it appropriate to discuss the law laid down in Amrik Singh vs. State of Pepsu (supra).
CBI No. 78/2016 (Old No. 24/2008) Page 105 of 144CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS)
105. In Amrik Singh's case, the allegations against the accused were that his duty was to disburse the wages to workers against their signature or thumb impression in the monthly acquittance roll. It was alleged that he had received the wages of ` 51/- of one worker after putting his thumb impression in the said monthly acquittance roll and misappropriated the said amount. Accordingly, he was charge-sheeted for the offence punishable under Section 465/409 IPC. The question of sanction was raised first time before the Apex Court. The moot question arose before the Apex Court; whether the sanction under Section 197 (1) Cr. P.C was necessary for the prosecution of appellant under Section 409 IPC or not?
(i) While dealing with the above said question, Hon'ble Apex Court referred the judgment of Hori Ram Singh v. Emperor (supra) in Para No. 5 and 6 and same are reproduced as under :
Para No. 5. There has been considerable divergence of judicial opinion on the scope of Section 197(1) of the Code of Criminal Procedure. The question has latterly been the subject of consideration by the highest courts in this country, and by the Privy Council, and the position may now be taken to be fairly well-settled. Hori Ram Singh v. Emperor [ AIR 1939 FC 43 :
1939 FCR 159] is a decision of the Federal Court on the necessity for sanction under Section 270 of the Government of India Act, 1935, which is similar in terms to Section 197(1) of the Code of Criminal Procedure. The facts in that case were that a Sub-Assistant Surgeon was charged under Section 409 with having dishonestly removed certain medicines from a hospital which was under his charge, to his own residence, CBI No. 78/2016 (Old No. 24/2008) Page 106 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) and under Section 477-A, with having failed to enter them in the stock book. The sanction of the Government had not been obtained for the prosecution under Section 270 of the Government of India Act, and the point for decision was whether it was necessary. It was held that the charge under Section 477-A required sanction, as "the official capacity is involved in the very act complained of as amounting to a crime"; but that no sanction was required for a charge under Section 409, because "the official capacity is material only in connection with the 'entrustment' and does not necessarily enter into the later act of misappropriation or conversion, which is the act complained of".
Para No. 6. In the course of his judgment, Varadachariar, J. discussed the scope of Section 197(1) of the Code of Criminal Procedure and after observing that the decisions on that section were not uniform, proceeded to group them under three categories those which had held that sanction was necessary when the act complained of attached to the official character of the person doing it, those which had held that it was necessary in all cases in which the official character of the person gave him an opportunity for the commission of the crime, and those which had held it necessary when the offence was committed while the accused was actually engaged in the performance of official duties. The learned Judge expressed his agreement with the first of the three views.
In H.H.B. Gill v. King [ AIR 1948 PC 128 : 75 IA 41] the question arose directly with reference to Section 197(1) of the Code of Criminal Procedure. There, the accused CBI No. 78/2016 (Old No. 24/2008) Page 107 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) was charged under Section 16 with taking bribes, and under Section 120-B with conspiracy. On the question whether sanction was necessary under Section 197(1) it was held by the Privy Council that there was no difference in scope between that section and Section 270 of the Government of India Act, 1935, and approving the statement of the law by Varadachariar, J. in Hori Ram Singh v.
Emperor [ AIR 1939 FC 43 : 1939 FCR 159] Lord Simonds observed:
"A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty........The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office".
(emphasis supplied)
(ii) Hon'ble Apex Court summed up the proposition of law in Para No. 7 and same is reproduced as under :
Para No. 7. The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it CBI No. 78/2016 (Old No. 24/2008) Page 108 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.
(emphasis supplied)
(iii) During the course of arguments, State conceded before the Apex Court that the sanction under Section 197 Cr. P.C was required to prosecute the accused for the offence punishable under Section 465 IPC, but took the plea that no sanction was required for the offence punishable under Section 409 IPC and the said issue was dealt with by the Apex Court in Para 8 to 10, which are reproduced as under :
Para No. 8. It is conceded for the respondent that on the principle above enunciated, sanction would be required for prosecuting the appellant under Section 465, as the charge was in respect of his duty of obtaining signatures or thumb impressions of the employees before wages were paid to them. But he contends that misappropriation of funds could, under no circumstances, be said to be within the scope of the duties of a public servant, that he could not, when charged with it, claim justification for it by virtue of his office, that therefore no sanction under Section 197(1) was necessary, and that the question was concluded by the decisions in Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] and Albert West Meads v. King [ AIR 1948 PC 156 : 75 IA 185] , in both of which the charges were of criminal misappropriation. We are of opinion that CBI No. 78/2016 (Old No. 24/2008) Page 109 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) this is too broad a statement of the legal position, and that the two decisions cited lend no support to it. In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under Section 197(1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required.
Para No. 9. Quite recently, this court had to consider in Shreekantiah Ramayya Munipalli v. State of Bombay [ Criminal Appeal No. 89 of 1954] the necessity for sanction under Section 197(1), when the charge was one of misappropriation under Section 409. There, the law was laid down in the following terms:
"The section has content and its language must be given meaning.
What it says is -- 'when any public servant ... is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty....' We have therefore first to concentrate on the word 'offence'.
Now an offence seldom consists of a CBI No. 78/2016 (Old No. 24/2008) Page 110 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an 'entrustment' and/or 'dominion'; second, that the entrustment and/or dominion was 'in his capacity as a public servant'; third, that there was a 'disposal'; and fourth, that the disposal was 'dishonest'. Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity".
On the facts, it was held in that case that the several acts which were complained of, were official acts, and that the prosecution was bad for want of sanction.
Para No. 10. The decisions in Hori Ram Singh v. Emperor [ AIR 1939 FC 43: 1939 FCR 159] , and Albert WestMeads v. King [ AIR 1948 PC 156 : 75 IA 185] when properly examined, do not support the extreme contention urged on behalf of the respondent. In Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] the medicines had not been entered in the stock book, and were removed by the accused to his residence, and the charge against him was that in so removing them he had committed misappropriation. It was no part of the duty of the accused to remove medicines to his house, and he could not claim that he did so by virtue of his office. He could have made such a claim if he had, let us suppose, entered the medicines in the stock books and CBI No. 78/2016 (Old No. 24/2008) Page 111 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) shown them as expended in the hospital. But, on the facts, no official act was involved, and that was why Varadachariar, J. observed that, "... so far as the charge under Section 409 was concerned, the acts in respect of which he was intended to be prosecuted could not be regarded as acts done or purported to be done in execution of his duty".
Reference may also be made to the following observations of Sulaiman, J. in the same case:
"The question whether a criminal breach of trust can be committed while purporting to act in execution of his duty is not capable of being answered hypothetically in the abstract, without any reference to the actual facts of the case. An attempt to answer the question in a generalised way has been responsible for loose language used in some of the cases cited before us.... The question whether the act purported to have been done in execution of duty or not must depend on the special circumstances of each case."
(emphasis supplied)
(iv) At last, Apex Court held that the sanction was required in the above said case to prosecute the accused for the offence punishable under Section 409 IPC. In this regard, Para No. 12 is relevant and reproduced as under :
Para No. 12. In this view, we have to CBI No. 78/2016 (Old No. 24/2008) Page 112 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) examine whether the acts with which the appellant is charged directly bear on the duties which he has got to discharge as a public servant. The appellant received the sum of ` 51 alleged to have been misappropriated, as Subdivisions Officer, and he admits receipt of the same. Then it was his duty to pay that amount to the khalasi Parma, and take his signature or thumb-impression in acknowledge-ment thereof. The accused does claim to have paid the amount to Parma, and the acquittance roll records the payment, and there is in acknowledgement thereof a thumb-impression as against his name. If what appears on the face of the roll is true and whether it is true or not is not a matter relevant at the stage of sanction then the acts with which the appellant is charged fall within the scope of his duties, and can be justified by him as done by virtue of his office. Clearly, therefore, sanction was required under Section 197(1) of the Code of Criminal Procedure before the appellant could be prosecuted under Section 409, and the absence of such sanction is fatal to the maintainability of the prosecution. The conviction should, therefore, be quashed.
(emphasis supplied)
106. No doubt in Harihar Prasad v. State of Bihar [(1972) 3 SCC 89 : 1972 SCC (Cri) 409, Hon'ble Apex Court after referring to the cases namely Shreekantiah Ramayya Munipalli v. State of Bombay (supra), Amrik Singh v. State of Pepsu (supra) held that no sanction is required in respect of acts complained of in the present case for the charges under Section 120 B IPC read with Section 409 IPC. The said observation is reproduced as under :
CBI No. 78/2016 (Old No. 24/2008) Page 113 of 144CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) " The real question therefore is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy punishable under Section 120- B, read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
(emphasis supplied)
(i) Perusal of the said observations, make it clear that the observations were made in the light of peculiar facts involved in the said case. In the said case, the allegations against the accused persons were that they had not only awarded the contract to their known contractors, but they had also drew the bills frequently in their own name and gave advance payment to the contractors despite the fact that the contractors had not executed the work as per the terms and conditions. Even they had accepted bribe from the said contractors and the amount was recovered from them. In the light of these peculiar facts, it was held that no sanction was required for the charges of Section 120B IPC read with Section 409 IPC and this is abundantly clear from the observations of Hon'ble Apex Court when it categorically stated that the real question is whether the acts CBI No. 78/2016 (Old No. 24/2008) Page 114 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) complained of in the present case were directly concerned with the official duties of the three public servants. Thus, as per the observations of Hon'ble Apex Court, no sanction is required because the above facts were not found directly concerned with the official duties of the accused persons. The said judgment was clarified by the Apex Court in R. Balakrishna Pillai v. State of Kerala and Another (supra). In the said case, CBI had taken the plea that in view of the finding in Harihar Prasad v. State of Bihar (supra) case, no sanction is required for the offence of conspiracy. The relevant portion of Para No. 6 is reproduced as under:
Para No. 6. The next question is whether the offence alleged against the appellant can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. It was contended by the learned counsel for the State that the charge of conspiracy would not attract Section 197 of the Code for the simple reason that it is no part of the duty of a Minister while discharging his official duties to enter into a criminal conspiracy. In support of his contention, he placed strong reliance on the decision of this Court in Harihar Prasad v. State of Bihar [(1972) 3 SCC 89 : 1972 SCC (Cri) 409 : 1972 Cri LJ 707] . He drew our attention to the observations in paragraph 74 of the judgment where the Court, while considering the question whether the acts complained of were directly concerned with the official duties of the public servants concerned, observed that it was no duty of a public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of the Code was no bar to the prosecution. The question whether the acts complained of had a direct nexus or relation with the CBI No. 78/2016 (Old No. 24/2008) Page 115 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) discharge of official duties by the public servant concerned would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out of office the bar of Section 197(1) of the Code would have no application. Such a view would render Section 197(1) of the Code specious. Therefore, the question would have to be examined in the facts of each case. The observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197(1), as it then stood, but we do not base our decision on that distinction. Our attention was next invited to a three-Judge decision in B. Saha v. M.S. Kochar [(1979) 4 SCC 177 : 1979 SCC (Cri) 939] . The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed Section 197(1) of the Code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The right CBI No. 78/2016 (Old No. 24/2008) Page 116 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) approach, it was pointed out, was to see that the meaning of this expression lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection.
Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the aforequoted words, the protection of Section 197 will have to be extended to the public servant concerned. This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its application to the facts of the case on hand.
(emphasis supplied)
(ii) Thus, it becomes clear that mere fact that the investigating agency had filed the charge-sheet under Section 120B IPC read with Section 409 IPC is ipso-facto not sufficient to deprive public servants from protection available under Section 197 Cr. P.C. It depends upon facts of each case. If the acts were committed by the public servants in discharge of his official duties, sanction would be required under Section 197 Cr. P.C irrespective of the fact that the said acts attract the provisions of Section 120B IPC read with Section 409 IPC.
107. No doubt, in Shambhoo Nath Mishra v. State of U.P and others (1997) 5 SCC 326, it was held that the fabrication of record and misappropriation of public fund is not part of official duty of CBI No. 78/2016 (Old No. 24/2008) Page 117 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) the public servants, but the said observations are required to be considered in the light of the peculiar facts involved in the said case. In the said case, a complaint was filed against the accused persons for the offence punishable under Section 409/420/465/468/477A and 109 IPC with the allegations that the accused persons had fabricated the signature of complainant and after forging his signature, they withdrew the amount from his account and misappropriated the same. On the basis of these peculiar facts, it was held that it was not official duty of public servant to fabricate the record and misappropriate the public fund. Thus, the said judgment is also not helpful to the prosecution as the facts of the case at hand are totally different.
108. In Rajib Ranjan and others v. R. Vijay Kumar (2015) 1 SCC 513, after referring to the case of Amrik Singh v. State of Pepsu (supra), Raghunath Anant Govilkar v. State of Maharashtra and others (2008) 11 SCC 289 and Shambhoo Nath Mishra v. State of U.P and others (1997) 5 SCC 326, it was held in Para No. 18, same is reproduced as under:
Para No. 18. The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted. In fact, the High Court has dismissed the petitions filed by the appellant precisely with these observations, namely, the allegations pertain to fabricating the false records which cannot be treated as part of the CBI No. 78/2016 (Old No. 24/2008) Page 118 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) appellants' normal official duties. The High Court has, thus, correctly spelt out the proposition of law. The only question is as to whether on the facts of the present case, the same has been correctly applied.
(emphasis supplied)
(i) As already discussed that Apex Court had already clarified that the question whether the offence of criminal conspiracy, criminal misconduct or misappropriation was committed in discharge of official duty or not, it depends on facts of each case and it cannot be answered hypothetically in the abstract without any reference to the actual facts of the case. It is pertinent to state that in Rajib Ranjan and others v. R. Vijay Kumar (supra), proceedings were quashed by the Apex Court holding that the complainant had abused the process of the Court.
109. In State of Madhya Pradesh Vs Sheetla Sahai and others (supra), Apex Court propounded the rule of safe and sure test to determine whether the sanction is required for the act complained of public servants or not. In this regard, Para No. 61 is relevant and same is reproduced as under :
Para 61 Strong reliance has been placed by Mr. Tulsi on a judgment of this Court in Centre for Public Interest Litigation and Another Vs Union of India and Another [(2005) 8 SCC 202]. In that case, it was held :
"9 The protection given under Section 197 is to protect responsible public servants CBI No. 78/2016 (Old No. 24/2008) Page 119 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution.
This protection has certain limits and is available only when the alleged act done by the pubic servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and performance of the official duty, the excess will not be a sufficient ground to deprive the public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the pubic servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a CBI No. 78/2016 (Old No. 24/2008) Page 120 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.
10. Use of the expression "official duty"
implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
11. If on facts, therefore, it is prima-facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed."
(emphasis supplied)
110. Recently, Hon'ble Apex Court had considered most of the above said judgments in Prof. N.K. Ganguly v. CBI (supra) after CBI No. 78/2016 (Old No. 24/2008) Page 121 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) considering the entire case law including observations made by the Apex Court in Parkash Singh Badal v. State of Punjab and others (2007) 1 SCC 1, Hon'ble Apex Court held as under:
" Mr. P.P. Khurana and Mr. Gopal Subramaniam, the learned senior counsel appearing on behalf of some of the appellant, on the other hand, contends that the decision in the Parkash Singh Badal case needs to be appreciated in light of the facts of that case. Thus, while stating that the offences under Sections 420/467/468/471 IPC and 120B IPC can by no stretch of imagination and by their very nature be regarded as having been committed by any public servant while acting of purporting to act in discharge of his official duty, this Court did not mean that merely because an official was charged with an offence under these sections, no sanction was required to be taken.
The learned counsel placed reliance on the following paragraph of the judgment to emphasis the same:
"51. In Baijnath v. State of M.P. [1966 (1) SCR 210] the position was succinctly stated as follows:
"... it is the quality of the Act that is important and if it falls within the scope and range of his official duty the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted."
The learned senior counsel also placed reliance on the three judge bench decision of this Court rendered in the case of Shreekantiah Ramayya Munipalli, referred to supra, wherein it was held as under:
CBI No. 78/2016 (Old No. 24/2008) Page 122 of 144CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) "18. ...... If Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is not part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act because an official act can be performed in the discharge of official duty as well as in dereliction of it.....
19. Now an offence seldom consists of a single act. It is usually composed of several elements and as a rule a whole series of acts must be proved before it can be established..... Now it is evident that the entrustment and/or domino here were in an official capacity and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity........."
25. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate government under Section 197 of Cr. P.C, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 of CBI No. 78/2016 (Old No. 24/2008) Page 123 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Cr. P.C was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.
(emphasis supplied)
111. From the aforesaid discussion, the following proposition of law emerge:-
(i) It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 Cr. P.C; nor even every act done by him while he is actually engaged in the performance of his official duties.
(ii) But, if the act complained of is directly concerned with his official duties so that if questioned, it could be claimed to have been done by the public servants by virtue of the office and then sanction would be necessary.
(iii) Even where the charges are for misappropriation by public servant, question whether the sanction is required under Section 197 (1) Cr. P.C will depend upon facts of the each case. If the acts complained of are so integrally connected with the duties attaching to the office so as to be inseparable, sanction would be necessary. If there was no necessary connection between the duty and the act, the official status furnishing only the occasion or opportunity for the acts then no sanction would be required.
(iv) There is no universal rule to determine whether there CBI No. 78/2016 (Old No. 24/2008) Page 124 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) is a reasonable connection between the act done and the official duty, nor it is possible to lay down any such rule.
(v) However, there is one safe and sure test to determine this connection is, if the omission or neglect on the part of public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in affirmative, it may be said that the such act was committed by the public servant while conducting in discharge of his official duties and there was every connection with the act complained of and the official duty of the public servant.
(vi) An official act can be performed in discharge of official duty as well as in dereliction of it.
112. It is pertinent to state that in R. Balakrishna Pillai v. State of Kerala and Another (supra), State of Madhya Pradesh Vs Sheetla Sahai and others (supra), Prof. N.K. Ganguly v. CBI, accused persons were charge-sheeted by CBI for the offences under Penal Code as well as under Prevention of Corruption Act. Since, CBI had not obtained sanction under Section 197 Cr. P.C and act complained of was found in connection with the discharge of official duties, in the said cases, accused persons were discharged from the penal charges.
113. Now question arises whether in the instant case, acts complained of were committed in discharge of official duties by the public servants or not?
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(i). Now coming to the facts of the case at hand. No doubt, A4 and A5 had submitted a false report in favour of the society. But, it is also undisputed fact that they were public servants and they were specifically deputed to conduct inspection or verififaction by their office.
114. A4 in his report (Ex. PW6/E) categorically stated that he was appointed as Inspecting officer vide order dated January 12, 2004 and in compliance of the said order, he submitted his report. Similarly, A5 in his report {Ex. PW6/O (colly)} recited that he was directed to conduct physical verification at random vide order dated February 20, 2004 and pursuant to that order, he submitted his report. Moreover, it is also admitted case of CBI that both had submitted the reports when they were appointed to conduct inspection and physical verification. This establishes that they prepared the reports being the Inspecting/Verification Officers. Thus, there was a direct connection between their reports and official duties. Their acts also satisfied the condition of safe and sure test as laid down by the Apex Court in State of Madhya Pradesh Vs Sheetla Sahai and others (supra). Mere fact that they had submitted false reports in favour of society is not sufficient to deprive them from the protection available to them under Section 197 Cr.P.C.
115. In view of the aforesaid discussion, I am of the considered opinion that CBI was under obligation to obtain separate sanction under Section 197 Cr.P.C qua A4 and A5 qua the penal offices. But, since CBI had not obtained any such sanction, I am of the considered opinion that they cannot be held guilty for the penal CBI No. 78/2016 (Old No. 24/2008) Page 126 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) offences.
Findings qua accused P. K. Thirwani (A6):-
116. The role attributed to A6 is that he had submitted a false and forged audit report to the office of RCS without conducting any audit as he was in conspiracy with accused Gokul Chand Aggarwal.
117. Though CBI examined as many as 135 witnesses, yet none has uttered a single word against him except PW135.
(i) During trial, A6 had admitted the audit report of March 11, 2004. Perusal of the record reveals that on January 13, 2016 PW Pan Chanand Joshi appeared in the Court to prove the audit report, but A6 made a submission that he is ready to admit the entire report, appointment letter, brief summary and check-list. Accordingly, learned Sr. Public Prosecutor appearing for CBI made a submission that if, A6 is ready to admit these documents, he would drop the witness. Thereafter, A6 made a statement wherein he admitted the audit report (Ex. A1), appointment letter (Ex. A2), brief summary (Ex. A3) and Check-list (Ex. A4). Since all the documents were admitted by A6, learned Sr. Public Prosecutor dropped the name of PW Pan Chanand Joshi.
118. Perusal of the audit report reveals that he was appointed as auditor to conduct the audit vide letter Ex. A2. Thereafter, he conducted the audit of the accounts of the society in CBI No. 78/2016 (Old No. 24/2008) Page 127 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) question and submitted his report Ex. A1 along with the brief summary (Ex. A3) and Check-list (Ex. A4).
119. Perusal of the said documents further reveals that A6 had accepted the appointment letter by putting his signature on Ex. A2 at point Q1309. Mr. Hem Raj on behalf of the society put his signature at point Q1307 and his name is mentioned at point Q1306. After conducting the audit, Mr. K. P. Singh, Mr. Hem Raj and Mr. Ram Gopal Gupta also signed the brief-summary being the President, Secretary and Treasurer of the society respectively and their signatures are appearing at points Q1312, Q1313 and Q1314.
(i) During investigation, the investigating officer had taken the specimen writings of A6, which were given marked as Mark S-150 to S-168 and same are exhibited as Ex. PW122/A (colly). The above said specimen writings along with the above said questioned writings and signatures were sent to GEQD for the purpose of opinion. From the GEQD report (Ex. PW133/C), it becomes clear that the author of Q1312, Q1313 and Q1314 was A6. This establishes that A6 had forged the signatures of Mr. K. P. Singh, Mr. Hem Raj and Mr. Ram Gopal Gupta on the Brief summary (Ex. A3).
(ii) During trial, A6 failed to furnish any explanation whatsoever to explain the circumstances under which he had signed the signatures of above said persons on the said document.
120. As already discussed that the revival order was passed subject to two conditions including the audit of the accounts of CBI No. 78/2016 (Old No. 24/2008) Page 128 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) the society. In other words, the audit report of A6 was quite relevant for the purpose of revival of the society. Since A6 had forged the signatures of Mr. K. P. Singh, Mr. Hem Raj and Mr. Ram Gopal Gupta, it can safely be culled out that A6 had committed forgery and since the forgery had been committed for the purpose of cheating in order to enable the society to make the revival order effective/operative, A6 is liable for the offence punishable under Section 468 IPC. Since, the said audit report was to be placed before the RCS and infact was submitted in the office of RCS, A6 is also liable for the offence punishable under Section 471 r/w 468 IPC. It is pertinent to state that no sanction under Section 197 Cr.P.C is required qua A6 as forging the signature of above said persons was not connected with his official duties in any manner.
121. The appointment letter Ex. A2 also bears the signature of Secretary of the society i.e. Mr. Hem Raj at point Q1307. As per the GEQD report, the author of said signature was accused Gokul Chand Aggarwal. It means that accused Gokul Chand Aggarwal had forged the signature of Mr. Hem Raj, Secretary of the society on the appointment letter and this further shows the conspiracy between A2 and A6.
122. As per Rule 84 (3) of DCS Act 1973, the auditor was duty bound to conduct the audit at the registered office of the society unless it was directed otherwise. Indisputably, in the appointment letter (Ex. A2), A6 was not directed to conduct audit at any other place, thus in terms of Rule 84(3) of DCS Rules, 1973, A6 was duty bound to conduct audit at the registered office of the society i.e. 110 Sri Niwas CBI No. 78/2016 (Old No. 24/2008) Page 129 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Puri, Model Town, New Delhi. As already discussed that the said address is not in existence. This establishes that A6 had not visited the registered office of the society at any point of time and he had conducted the audit of the society somewhere else. But during trial, he failed to disclose where he had conducted the said audit.
(i) Since, A6 had not visited the registered office of the society, it can safely be culled out that the record of the society were not handed over to him by any office bearer of the society. Since accused Gokul Chand Aggarwal had forged the signature of Mr. Hem Raj on the appointment letter at point Q1307, it can safely be presumed that accused Gokul Chand Aggarwal must have shown the record of the society to A6. This shows that A6 was in conspiracy with accused Gokul Chand Aggarwal. This conspiracy further establishes from the fact that A6 had forged the signatures of President, Secretary and Treasurer of the society. Accordingly, I am of the considered opinion that A6 is also liable for the charges of conspiracy.
(ii) Since, A6 had forged the signatures of Mr. K. P. Singh, Mr. Hem Raj and Mr. Ram Gopal Gupta on the Brief Summary, it establishes that he being the public servant abused his official position. Since, he forged their signatures, it can safely be presumed that he had done so against some valuable consideration or monetary advantages otherwise there was no reason for him to forge the signatures, accordingly he is also liable for the offence punishable under Section 13(1)(d)(ii) of PC Act, which is punishable under Section 13(2) of PC Act.
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123. No doubt, A6 had admitted in his statement recorded under Section 164 Cr.P.C that he had conducted the audit at the instance of accused Gokul Chand Aggarwal against the consideration of ` 10,000/- and from the said amount, he had also given a sum of ` 4000/- to Mr. J. S. Sharma, the then Asstt. Registrar and ` 2000/- to Mr. S. K. Sharma, the then UDC. But to my mind, the same is not helpful to the prosecution in any manner because it is admitted case of CBI that accused P. K. Thirwani had made the statement before Ld. Metropolitan Magistrate being the witness under Section 164 Cr.P.C. Indisputably, A6 had not made any admission or confession being an accused under Section 164 Cr.PC. Since the provisions of Section 164 and 281 Cr.P.C were not complied with at the time of recording the statement of accused P. K. Thirwani, the same cannot be considered as confessional statement of accused P. K. Thirwani. Accordingly, the said statement can not be considered to prove the guilt of A6. Hence, the said statement was not considered at the time of appreciating the evidence against A6.
Findings qua sanction under Section 19 of PC Act against A4 & A6:-
124. CBI had obtained the sanction under Section 19 of PC Act against A4 & A6 for the offence punishable under PC Act as they were public servants and working in the RCS office at the time of commission of alleged offence. The sanction was accorded by PW111 Mr. R. Narayanswami, the then Chief Secretary of Govt. of NCT of Delhi. PW111 testified in his deposition that accused P. K. Thirwani was working as Head Clerk-cum-Auditor in the office of RCS, New CBI No. 78/2016 (Old No. 24/2008) Page 131 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Delhi and later on he was promoted as Superintendent and posted in Education Department. Similarly, he testified that accused Ram Nath was also working as Head Clerk, Grade-II in the office of RCS and subsequently, he was promoted as Superintendent, Grade-I in Education Department. He further testified that being Chief Secretary, he was competent to accord sanction qua them under 19 of PC Act.
He further testified that before according sanction, he had gone through the records such as report of CBI, calender of oral and documentary evidence, statement of witnesses and other documents. This shows that before according sanction, he had applied his mind by going through the documents sent by CBI.
125. Though during his cross-examination, an attempt was made to show that he was not competent to remove A4 & A6 from their posts, which they were holding at the time of commission of offence, but the said attempt is not helpful to the accused persons in any manner as PW111 clarified that he is not sure whether RCS was competent to remove them being the Head Clerk but he (PW111) being the Chief Secretary was competent to remove both of them. He further clarified that since at the time of according sanction they were holding the posts of Superintendent and being the Chief Secretary he was competent to remove them from their posts, he was competent to accord sanction qua them. During trial, accused persons failed to produce any contrary evidence to the testimony of PW111, in the absence of any contrary evidence on record, I do not find any substance in the plea of accused persons that PW111 was not competent to remove them from their posts.
CBI No. 78/2016 (Old No. 24/2008) Page 132 of 144CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS)
126. During his cross-examination, PW111 clarified that at the time of seeking sanction CBI had sent a detailed report of investigation along with calender of evidence i.e. oral and documentary. He further clarified that he had accorded the sanction on the basis of documents sent by the CBI. This establishes that PW111 had accorded sanction after going through the documents. It is pertinent to state that the Court is not required to see the sufficiency of the record which were produced before the competent authority. However, court is required to see whether the relevant material was sent to the competent authority to enable the authority to decide whether the material on record are sufficient to accord sanction or not. Once the competent authority decides that the material placed before him was sufficient to accord sanction, there is no reason to disbelieve the competent authority that sanction had been accorded without application of mind or the same was accorded in mechanical manner. Accordingly, I do not find any substance in the contention of counsel that the sanction had been accorded qua A4 & A6 without application of mind.
CONCLUSION:
127. In the light of the foregoing discussion, I am of the considered opinion that : -
(i) That prosecution has succeeded to bring home the guilt of accused Gokul CBI No. 78/2016 (Old No. 24/2008) Page 133 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Chand Aggarwal (A2) and Prahlad Kumar Thirwani (A6) for the offence punishable under Section 120B r/w 417/468 IPC, Section 471 r/w 468 IPC and Section 13(2) r/w 13(1)(d)(ii) of PC Act beyond the shadow of all reasonable doubts accordingly, I hereby hold them guilty thereunder.
(ii) That prosecution has also succeeded to bring home the guilt of accused Gokul Chand Aggarwal (A2) for the offence punishable under Section 417/468 IPC and under Section 471 r/w 468 IPC beyond all reasonable doubts, accordingly, I hereby hold him guilty thereunder.
(iii) That prosecution has succeeded to bring home the guilt of accused Prahlad Kumar Thirwani (A6) for the offence punishable under 468 IPC, Section 471 r/w 468 IPC and under Section 13(2) r/w 13(1)
(d)(ii) of PC Act beyond the shadow of all reasonable doubts accordingly, I hereby hold him guilty thereunder.
(iv) That prosecution has succeeded to bring home the guilt of accused Ram Nath (A4) and Faiz Mohd (A5) for the offence CBI No. 78/2016 (Old No. 24/2008) Page 134 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) punishable under Section 13(2) r/w 13(1)(d)
(ii) of PC Act beyond the shadow of all reasonable doubts accordingly, I hereby hold them guilty thereunder.
128. However, I am also of the considered opinion that the evidences led by CBI are not sufficient to prove the guilt of accused Narayan Diwakar (A1) beyond the shadow of all reasonable doubts. Accordingly, I hereby acquit him from all the charges.
(i) I am also of the considered opinion that CBI failed to prove the charge of conspiracy qua accused Ram Nath (A4) and Faiz Mohd (A5) beyond the shadow of all reasonable doubts. Accordingly, I hereby acquit them from the charge of conspiracy.
Announced in the open Court on this 3rd day of November, 2016 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sv CBI No. 78/2016 (Old No. 24/2008) Page 135 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) IN THE COURT OF SH. PAWAN KUMAR JAIN, SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT, ROHINI COURTS COMPLEX, DELHI IN THE MATTER OF:
CBI Case No. 78/2016 (Old No. 24/2008) CNR No. : DLNW01-000063-2006 FIR No. : RC-11(S)/2005/CBI/SCB-I/ New Delhi U/Sec.: 120-B/420/511/468/471 IPC & Sec. 13(2) r/w 13 (1) (d) of PC Act 1988 & Sec. 15 r/w 13 (1) (d) of PC Act, 1988 & substantive offence thereof Police Station: CBI/SCB-I/New Delhi STATE THROUGH CENTRAL BUREAU OF INVESTIGATION, NEW DELHI VERSUS CBI No. 78/2016 (Old No. 24/2008) Page 136 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS)
1. Gokul Chand Aggarwal S/o Late Sh. Jagdish Prasad R/o A-603, Ashoka Apartments Sector-9, Rohini, Delhi-85.
.........Convict no.1
2. Ram Nath S/o Late Sh. Kishan Lal R/o H. No. 1/92, Gali No. 9 West Guru Angad Nagar Laxmi Nagar, New Delhi.
.........Convict No.2
3. Faiz Mohmad S/o Late Sh. Ghulam Mohd.
R/o 4794, Ahata Kedara, Pahari Dheeraj Delhi-6.
.........Convict No.3 4 Prahlad Kumar Thirwani S/o Late Sh. Mati Ram R/o 348-E, Pocket-2, Mayur Vihar, Phase-I, Delhi-91.
.........Convict No. 4 CBI No. 78/2016 (Old No. 24/2008) Page 137 of 144CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) Appearance: Sh. Prabhat Kumar, Ld. Senior Public Prosecutor for CBI Sh. Abhishek Prasad, Advocate, Amicus-
curiae for Convict no. 1 Sh. S. K. Bhatnagar, Advocate, counsel for Convict no. 2, 3 & 4 ORDER ON THE POINT SENTENCE:
1. Vide judgment dated November 3, 2016, accused Gokul Chand Aggarwal (C1) and Prahlad Kumar Thirwani (C4) have been held guilty for the offence punishable under Section 120B r/w 417/468 IPC, Section 471 r/w 468 IPC and Section 13(2) r/w 13(1)(d)
(ii) of PC Act. Accused Gokul Chand Aggarwal (C1) has also been held guilty for the offence punishable under Section 417/468 IPC and under Section 471 r/w 468 IPC. Further, accused Prahlad Kumar Thirwani (C4) has also been held guilty for the offence punishable under 468 IPC, Section 471 r/w 468 IPC and under Section 13(2) r/w 13(1)(d)(ii) of PC Act.
(i) Accused Ram Nath (C2) and Faiz Mohd (C3) have also been held guilty for the offence punishable under Section 13(2) r/w 13(1)(d)(ii) of PC Act.
2. Learned amicus-curiae appearing for convict no.1 submits that he is not only a law abiding citizen but he is also sole bread earner of his family. It is further submitted that present convict is not involved in any other criminal matter except in the CBI No. 78/2016 (Old No. 24/2008) Page 138 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) societies scam matters. It is further submitted that convict is facing the agony of trial for the last more than ten years. It is further submitted that he has also one unmarried daughter. Accordingly, it was prayed to take a lenient view and release him after imposing a token fine.
(i) Learned counsel appearing for convict nos. 2 to 4 submits that they were public servants and posted in the office of RCS, New Delhi at different posts. It is submitted that during investigation, CBI failed to produce any cogent evidence to establish that the above convicts had taken any bribe or monetary gain or valuable things for their acts performed being the public servants. It is further submitted that the above convicts are law abiding citizens as they are not involved in any other criminal matters except in the societies scam matters.
(ii) It is further submitted that convict Ram Nath is aged about 68 years, convict Faiz Mohd is aged about 74 years whereas convict Prahlad Kumar Thirwani is aged about 67 years. All had already been retired from their services and pension is only their source of income. It is further submitted that they have suffered the agony of trial for the last more than ten years.
3. Per contra, learned Sr. Public Prosecutor appearing for the CBI refuted the contentions raised by learned counsel for the convicts and requests to award maximum CBI No. 78/2016 (Old No. 24/2008) Page 139 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) punishment. It is submitted that convict no. 1 had forged the signature of numerous persons including the office bearers of the society. Thereafter, he also used the said forged documents by submitting the same in the office of RCS in order to get a favourable revival order of the society. It is further submitted that convict no. 2 and 3 had betrayed the faith of their office by submitting a false report in favour of the society. Similarly, convict no. 4 also betrayed the faith of his office by forging the signatures of office bearers of the Society on the brief-summary report and by submitting a favourable report without conducting any audit of the accounts of the society.
4. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. As already held that convict no. 1 had not only forged the signature of Mr. K. P. Singh on the application moved for cancellation of winding up order but he also forged the signature of office bearers of the society on numerous documents. Besides that he also forged the signature of Mr. Hem Raj, alleged Secretary of the society, on numerous documents. On the basis of forged documents, convict no. 1 succeeded to obtain a favourable order for revival of the society from the RCS. Similarly, it has also been held that convict no. 2 and 3 being the public servants were deputed to conduct inspection and physical CBI No. 78/2016 (Old No. 24/2008) Page 140 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) verification, but they deliberately submitted false reports. Since, they submitted false reports deliberately, it shows that they had betrayed the faith of their office. Similarly, convict no. 4 was deputed to conduct audit of the accounts of society being the public servant, but he had not only submitted the report without conducting audit at the registered office of the society but also forged the signatures of office bearers of the society on the brief- summary report. Accordingly, he had also betrayed the faith of his office.
6. In view of the aforesaid aggravating factors, I am of the considered opinion that it is not a fit case to impose a token sentence as prayed by counsels for the convicts.
7. Considering the aggravating and mitigating factors as highlighted by counsel for the parties and the fact that convict no.1 was the master mind of the entire conspiracy, I hereby sentence Gokul Chand Aggarwal (C1):_
(i) Rigorous imprisonment for a period of one year and a fine of ` 50,000/- (Rupees Fifty Thousands) in default further three months simple imprisonment for the offence punishable under Section 417 IPC.
(ii). Rigorous imprisonment for a CBI No. 78/2016 (Old No. 24/2008) Page 141 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) period of two years and a fine of ` 1 lac (Rupees one lac) in default further nine months simple imprisonment for the offence punishable under Section 468 IPC.
(iii) Rigorous imprisonment for a period of two years and a fine of ` 75,000/-
(Rupees Seventy Five Thousands) in default further seven months simple imprisonment for the offence punishable under Section 471 r/w 468 IPC.
(iii) Rigorous imprisonment for a period of one year and a fine of ` 25,000/-
(Rupees Twenty Five Thousands ) in default further one month simple imprisonment for the offence punishable under Section 120 B r/w 417/468 IPC, Section 471 r/w 468 IPC and under Section 13(2) r/w 13(1)(d)(ii) of PC Act.
8. Considering the aggravating and mitigating factors, I hereby sentence convicts Ram Nath and Faiz Mohd rigorous imprisonment for a period of one year each and a fine of ` 25,000/- (Rupees Twenty Five Thousands) each in default further one month simple imprisonment for the offence CBI No. 78/2016 (Old No. 24/2008) Page 142 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) punishable under Section 13 (2) r/w 13(1)(d)(ii) of PC Act.
9. Considering the aggravating and mitigating factors, I hereby sentence convict Prahlad Kumar Thirwani (C4):-
(i) Rigorous imprisonment for a period of one year and a fine of ` 25,000/- (Rupees Twenty Five Thousands) in default further one month simple imprisonment for the offence punishable under Section 120B r/w 417/468 IPC, Section 471 r/w 468 IPC and Section 13 (2) r/w 13(1)(d)(ii) of PC Act.
(ii) Rigorous imprisonment for a period of one year and a fine of ` 25,000/-
(Rupees Twenty Five Thousands) in default further one month simple imprisonment for the offence punishable under Section 468 IPC.
(iii) Rigorous imprisonment for a
period of one year and a fine of ` 20,000/-
(Rupees Twenty Thousands) in default
further one month simple imprisonment for the offence punishable under Section 471 CBI No. 78/2016 (Old No. 24/2008) Page 143 of 144 CBI Vs Narayan Diwakar & others (Shri Shiv Puri CGHS) r/w 468 IPC.
(iv) Rigorous imprisonment for a period of one year and a fine of ` 25,000/-
(Rupees Twenty Five Thousands ) in default further one month simple imprisonment for the offence punishable under Section 13 (2) r/w 13(1)(d)(ii) of PC Act.
10. All sentences shall run concurrently. Benefit of Section 428 Cr.P.C, if any, be given to the convicts.
11. Copy of judgment along with order on the point of sentence be given to the convicts/their counsels free of cost.
12. File be consigned to record room.
Announced in the open Court on this 7th day of November, 2016 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sv CBI No. 78/2016 (Old No. 24/2008) Page 144 of 144