Delhi District Court
Cbi vs Markandey Mishra Etc. (Nishat C.G.H.S) … on 5 March, 2025
IN THE COURT OF SH. JAGDISH KUMAR SPECIAL
JUDGE (PC ACT) (CBI)-16, ROUSE AVENUE DISTRICT
COURTS, NEW DELHI.
CBI Case No.:96/2019
CBI Vs Markandey Mishra etc
( Nishat C.G.H.S)
CNR No.: DLCT11-000406-2019
RC No.9/2006/EOU-VI/CBI New Delhi
Central Bureau of Investigation
Versus
1. Sh. Markandey Mishra (A-1)
S/o Sh. Raj Narayan Mishra
R/O B-1-38A, Shalimar Bagh
Delhi-88
2. Smt. Shakuntala Joshi (A-2)
W/O Late Sh. V.K. Joshi
R/O 51, Suraj Nagar,
Delhi-33
3. Sh. Narayan Diwakar (A-3)
S/O Late Sh. Chhati Lal
R/o G-30, Masjid Moth,
Kailash Colony-II,
New Delhi-48
4. Sh. Vishwa Nath Agarwal (A-4)
S/O Sh. Jagdish Prasad Aggarwal
G-30 Masjid Moth,
Greater Kailash
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New Delhi
5. Sh. Mohit Saxena (A-5)
S/O Sh. Anil Kumar Saxena
R/O 1011, Park Royal Apartment,
Sector-09, Dwarka,
Delhi-75
6. Sh. Ashok Kumar Chaudhary (A-6)
S/o Sh. Dhoom Singh
R/O 186/1, Gautam Nagar,
New Delhi 49
7. Sandeep Sahni (A-7)
S/O Sh. Charanjit Lal Sahni
R/O 34/13, East Patel Nagar,
New Delhi-08
8. Sh. Ashwani Sharma (A-8)
S/O Sh. R.K. Sharma
R/O 291-A, Pocket-C, Mayur Vihar
Phase-II. Delhi-91
9. Sh. Ashutosh Pant (A-9)
S/o Sh. Mahesh Chand Pant
R/O B-160, Shadatpur, Karawal Nagar,
Delhi-94
10. Sh. P.K. Thirwani (A-10)
S/O Late Sh. Moti Ram Thirwani
R/O BE-89, Hari Nagar,
New Delhi
11. Naveen Kaushik (A-11)
S/o Sh. Mahindra Dutt Sharma
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R/o I-2/32, IInd Floor, Sector-16, Rohini, New
Delhi.
12. S.P. Saxena (A-12)
S/o Late Sh. Raja Bahadur Saxena
R/O 664, Princess Park,
Sector-6, Dwarka,
Delhi-75
(proceedings already stands abated vide order dated 29.05.2023.)
13. Sh. S.K. Sharma (A-13)
S/o Sh. Surender Prakash Sharma.
R/O 1516, Delhi Govt Flats,
Gulabi Bagh,
Delhi-1100 07
(proceedings already stands abated vide order dated 10.09.2018.)
Date of Institution : 27.12.2007.
Date of Arguments: 28.02.2025.
Date of Judgment :05.03.2025.
JUDGMENT:
CASE OF THE PROSECUTION
1. In pursuance to the orders dated 9.01.2006 &
13.02.2006 of Hon’ble High Court of Delhi
passed in C.W.P. No. 10066/2004 and CMS
15487/2005, P.E SIJ 2006-E-0001 dated
09.03.2006 was registered in CBI EOU-VI to
enquire into the matter relating to CGHS
scam.The present case was registered on the
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basis of complaint of Sh. Devinder Singh,
Inspector on 1.12.2006 against Shri Markandey
Mishra, Dealing Asstt. Smt. Shakuntala Joshi,
Asstt. Registrar (N), N. Diwakar, the then RCS
and Vishwanath Aggarwal, Mohit Saxena,
Ashok Kumar Choudhary and Sandeep Sahini,
all residents of Delhi and some other unknown
persons u/s 120-B r/w 420, 468, & 471 IPC r/w
Section 13 (2) r/w 13 (1) (d) of PC Act 1988
relating to affairs of Nishat Cooperative Group
Housing Society (hereinafter referred to as
“The said Society”).
2. It is alleged that aforesaid accused entered into
a criminal conspiracy during the period 2000-
2001 onwards and in furtherance of the said
criminal conspiracy, through submission of a
slew of forged records, the said society was
fraudulently revived on 01.11.2002, as the said
society had been put under liquidation on 27.
09.1989. A freeze list was sent to DDA for 90
members on 8.11.2002 for allotment of land at
cheaper rates. It is alleged that since revival,
the society has been controlled by private
persons Vishwanath Agarwal, Mohit Saxena,
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Ashok Kumar Choudhary, and Sandeep Sahini
who aided the society financially in
procurement of land and also obtained contract
for construction of flats at plot No. 5, Sector-9,
Dwarka, New Delhi. And also enrolled new
members after accepting forged resignations of
some of the old members.
3. The investigation revealed that the said society
was registered with Registrar Cooperative
Societies, Delhi on 19.02.1980 at the request
of Sh. Abdul Malik the then Secy having a
strength of 69 members with registered office
at 764, Library Qureshi Nagar, Sadar Bazar,
Delhi. The said society after its registration
could not pursue its object on account of a
dispute on its registered office, which was
sealed under Court orders, the documents of
the said society remained locked till the year
2002-2003. As a result thereof, there was no
activity in the affairs of the said society during
1980 to 2002. As the society failed to respond
to various queries of RCS, Delhi, issued from
time to time relating to verification of records
in respect of the members etc., the said society
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was put under liquidation by RCS on
27.09.1989.
4. The investigation in this case has revealed that
during 2000-2001, accused S. P. Saxena, Mohit
Saxena, Ashwani Sharma, Ashutosh Pant and
Naveen Kaushik (all private persons) and
Markandey Mishra, Dealing Assistant, Smt.
Shakuntala Joshi, AR (N), Nirayan Diwakar,
the then RCS and SK Sharma, the then Asstt.
Grade Ill, (all public servants working in office
of the Registrar of Cooperative Societies,
Delhi) entered into a criminal conspiracy with
the object of causing revival of the defunct
Nishat CGHS through fraudulent and dishonest
means and for obtaining land from DDA at
cheaper rates.
5. The investigation revealed that in furtherance
of the said criminal conspiracy, accused
Ashutosh Pant while impersonating as Anand
Ballabh, submitted request for revival of Nishat
CGHS along with various documents to
Narayan Diwakar, RCS on 05.09.2002 under
the forged signatures of Pawan Khosla, who
was shown to be acting as a President of the
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said society. Though he was not even a
member of the said society.
6. The investigation also revealed that as part of
the criminal conspiracy, all the documents
submitted by Shri Ashutosh Pant for revival
were false documents. And in most of that
documents the forgeries was committed by
Ashutosh Pant in conspiracy with Ashwani
Sharma and Naveen Kaushik. The addresses of
the members of the said society were non-
existing or false. Similarly, false documents in
support of the proceedings of the management
committee and AGM were submitted in
addition to other documents relating to the
holding of elections of the society.
7. The investigation further disclosed that in
furtherance of the said criminal conspiracy
Smt. Shakuntala Joshi the then AR(N) directed
Sh. Markandey Mishra, dealing Assistant to
conduct the verification of the documents. Who
as a part of the conspiracy, by abusing his
official position as a public servant in the
capacity of dealing clerk, fraudulently and
dishonestly with an ulterior motive did not
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verified resignations/enrollments of some of
the members from the original records of the
society available with him. He submitted a
false report dated 22.10.2002, relating to
verification of records of society, to Smt.
Shakuntala Joshi in which he had
recommended the cancellation of the winding
up order of the said society.
8. The investigation further disclosed that in
furtherance of the said criminal conspiracy,
Shri Ashutosh Pant impersonated himself as
Anand Ballabh, who was non-existent entity,
with the full knowledge of Markandeya Mishra
on 11.10.2002 and 14.10.2002 for verification
of records.
9. The investigation further revealed that as a part
of the conspiracy Smt. Shakuntala Joshi, the
then AR(N) abused her official position as a
public servant. She fraudulently and
dishonestly, forwarded the said report directly
to N. Diwakar the then RCS, Delhi without
verifying the records submitted by the society
with those available in her office. She also by
passed the normal channel of Dy. Registrar and
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Joint Registrar of the office of RCS while
recommending the case of the society for
revival.
10. The investigation further disclosed that in
furtherance of the said criminal conspiracy, the
society was ordered to be revived by Shri N
Diwakar, while acting as a public servant in the
capacity of RCS Delhi. He dishonestly issued
revival order dt. 01.11.2002 by abusing as his
official position as such public servant, on the
basis of slew of forged documents.Thus, Nishat
CGHS was fraudulently revived by Sh. N.
Diwakar in criminal conspiracy with the
aforesaid co- accused persons on 01.11.2002.
11. The investigation further disclosed that said
order of revival was conditional one and Shri N
Diwakar had directed to conduct the pending
audit of the society within two months. He also
appointed Shri Sushil Kumar Sharma, a Clerk
Grade III for conducting the election of the
management committee of the said society.
12. The investigation further disclosed that in
furtherance of the criminal conspiracy, Shri
Ashutosh Pant impersonated himself as Anand
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Ballabh, in the proceedings dated 24.10.2002
before N. Diwakar. Anand Ballabh was non-
existant entity. These facts were in the full
knowledge of N Diwakar.
13. It is further disclosed in the charge sheet that in
pursuance of said criminal conspiracy the
condition for revival was fulfilled by Sh. P.K.
Thirwani, the then Auditor, in the office of
RCS, Delhi. Who fraudulently and dishonestly
abused his official position as a public servant
and submitted a false undated audit report in
respect of the audit of the said society for the
period 1979-1980 to till 2002. In the said audit
report Sh. Ashutosh Pant has forged the
signatures of Anand Ballabh.
14. The investigation has further revealed that in
furtherance of the said conspiracy, P.K.
Thirwani did not examine the accounts of the
society. Similarly without verifying the balance
sheets submitted by the society through
Ashwani Sharma to him, he issued undated
audit report by signing the documents
submitted to him by the said society. The same
was bearing signatures of Harish Bisht as
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Treasurer, Pawan Khosla as President and
Anand Ballabh as Secretary. In pursuance of
said criminal conspiracy, Sh. Ashutosh Pant
has forged the signatures of Anand Ballabh on
said documents. While Sh Pawan Khosla has
denied his signatures and membership of the
said society.
15. The investigation further disclosed that in
pursuance of said criminal conspiracy the other
condition relating to holding of election of the
Members of the management committee was
fulfilled by Sh. S.K. Sharma, the then Clerk,
Grade-III who fraudulently and dishonestly,
while abusing his official position as a such
public servant. He has submitted a false
election report in respect of the election of the
society shown to have been conducted on
22.12.2002 resulting in the election of
Vishwanath Aggarwal as President of the
society as well as other members of the
Management committee including the post of
Secretary and Treasurer. The said General
Body meeting was purportedly attended by 53
members and most of the signatures of the said
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members were forged by Ashwani Sharma.
16. The investigation further revealed that in
pursuance of the aforesaid criminal conspiracy,
the freeze list of 90 members of the said society
(Nishat CGHS) was forwarded to Asstt.
Registrar (Policy) office of the RCS Delhi by
Smt. Shakuntala Joshi for allotment of land at
subsidized rate vide letter dated 8.11.2002.
17. The investigation further revealed that the case
of Nishat CGHS was received vide letter no.
F-47/19/RCS/Policy/185 dated 10.01.2003
from the Asstt. Registrar (Policy) office of the
RCS, Delhi by DDA. The Nishat CGHS having
approved membership of 90 members was
given an offer of the allotment of 5000 Sq.
Mtrs. land costing Rs.2,52,80,000/- vide letter
no.F.7(04) 2003/GH/DDA/662 dated 03.02
2003.
18. The investigation further revealed that in
pursuance of the said criminal conspiracy, the
letter of allotment of land was collected by
Mohit Saxena from the DDA as per the
authorization of the secretary dated 03.02.2003.
Mohit Saxena was authorized to collect the
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allotment letter by resolution passed in the
meeting held on 02.02 2003 by the society
which was forwarded to DDA by Ashutosh
Pant by forging the signatures of Anand
Ballabh.
19. The investigation also revealed that society
deposited Rs.88,51,000/- vide challan no.
038286 dated 15.03.2003 and furnished the
application form for allotment of land, on
17.03.2003. The said society was allotted Plot
No.-05, Sector-19, Dwarka measuring 5000 Sq.
Mtrs. costing Rs.2,52,80,000/- which intimated
to the society vide letter no. F.7(04)
2003/GH/DDA/8225 dated 31.12.2003.The
investigation further revealed that S.P. Saxena
(proceedings already stands abated)
Vishwanath Agarwal Mohit Saxena, Ashok
Kumar Choudhary and Sandeep Sahani as a
part of criminal conspiracy took possession of
the land through Sh. Radhey Shyam Sharma.
Mohit Saxena as part of the criminal
conspiracy, pursued the matter with DDA after
he was co-opted as a member of the M.C. on
the basis of forged proceeding of the M. C.
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prepared by Sh. A. K. Johri at the dictation of
Sh. S. P. Saxena in the office of S. P. Saxena at
Madhu Vihar, Delhi.
20. As per the charge sheet, as a part of the
criminal conspiracy, Sh. Sandeep Sahni and A.
K. Chaudhary financed the first installment due
to DDA, to the tune of Rs.20.00 lakhs on the
promise of award of contract for construction
of 90 flats by the said society. Subsequently,
the contract was allotted to M/S Prime
Developers, a firm owned by both of them. In
addition to this, the society had also taken loans
from five firms viz. Excellent computers,
Karma Automobiles, Neelgiri Polymers, Sushil
Raj and Company to the tune of Rs. 18 lacs.
The loans to the tune of 38.00 lakhs were
raised for making payment to the DDA in
March, 2003 as the said society had only funds
to the tune of Rs. 54,16,000/-.
21. The investigation has further revealed that M/s
Prime Developers has constructed 90 dwelling
units and construction of all the flats was
almost completed.
22. The investigation further revealed that in
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pursuance of the aforesaid criminal conspiracy
Ashwani Sharma had forged the signatures of
the members of the Management Committee on
the proceedings purportedly held on
25.11.2002, 2.2.2003. The proceedings vide
which members were enrolled/ resignation
accepted in the Management Committee
register show that Sh. V.N. Aggarwal had
signed the proceeding register as the President
of the Society.
23. The investigation further revealed that it was
Shri V.N. Aggarwal who was controlling the
affairs of the said society from 5.3.2003
onwards. The resignations of members from
S.No. 1 to 104 are not available with the said
society as prior to registration of the case, Sh.
V. N. Aggarwal had lodged a false report with
P.S Dabri, Palam mentioning therein that these
documents and other records were stolen which
resulted in registration of case bearing FIR No.
57/2005. The founder members have denied to
have submitted their resignations.
24. The investigation has further revealed that in
furtherance to the said criminal conspiracy,
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Vishwanath Aggarwal in order to attract
persons desirous of purchasing flats, published
an advertisement in newspaper calling upon
public to purchase flats in the Oscar Apartment,
Plot No.-05, Sector-19, Dwarka Delhi.
Accordingly most of the members contacted
him for flats and were given the membership of
Nishat CGHS, Dwarka.
25. During investigation, the members from S.No.
105 onwards have admitted to have resigned
from the society and also stated that they had
taken up the membership of the society through
Vishwanath Aggarwal. And it was during his
period as president of the society that 163
members, including 104 members as mentioned
above, resigned out of a total enrollment of 253
members.
26. As per the allegations in the charge sheet, a
spree of resignations/enrollments started and as
a result thereof an amount of Rs. 15.99 crores
was collected by the society which also
includes equalization charges of 48.10 lacs
from newly enrolled members. The society at
present has 90 members from membership No.
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110 to 253 and members from Sl. No. 111, 112,
115 to 120, 122, 124 to 134, 136 to 149, 151 to
156, 158, 160, 164, 167, 173 to 177, 189 to 193
have resigned.
27. The investigation has further revealed that in
pursuance of the criminal conspiracy S. P.
Saxena also received a cheque bearing no.
219506 dated 12.03.2003 for Rs.3.00 lakhs
from S. K. Jain and assured him about his
membership in the society through Sh. Praveen
Jain.
28. The investigation revealed that the aforesaid
facts of commission of offence have been
corroborated by the witnesses during the course
of investigation, the documents have also been
collected which also confirm the aforesaid
facts. It is alleged that the GEQD, Shimla vide
his opinion bearing No. CX-233/2007 dated
29.09.07 has also corroborated the factum
regarding the forgery committed by the various
accused as mentioned in the charge sheet.
29. The investigation reveals that accused
Markandey Mishra, Dealing Asstt., Smt.
Shakuntala Joshi, Asstt. Registrar (N), N.
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Diwakar, the then RCS, P. K. Thirwani, the
then auditor and Sushil Kumar Sharma the then
Clerk Gr.lll and Vishwanath Aggarwal, Mohit
Saxena, Sandeep Sahini, Ashok Kumar
Choudhary, Ashwani Sharma, Ashutosh Pant,
Naveen Kaushik have committed offences
punishable u/s 120 B IPC r/w 419, 420, 468,
471 IPC and Section 13 (2) r/w 13 (1) (d) of PC
Act, 1988.
30. The investigation also revealed that in addition
to this Shri Markandey Mishra, Dealing Asstt.,
Smt. Shakuntala Joshi, Asstt. Registrar (N), N.
Diwakar, the then RCS, P. K. Thirwani, the
then auditor, Sushil Kumar Sharma the then
Clerk Gr.III and Vishwanath Agarwal, Mohit
Saxena, Sandeep Sahini, Ashok Kumar
Choudhary, Ashwani Sharma, Ashutosh Pant,
Naveen Kaushik have committed offences
punishable u/s 20 B IPC r/w 419, 420, 468, 471
IPC and Section 13 (2) r/w 13 (1) (d) of PC
Act, 1988.
31. It is further alleged that accused Markandey
Mishra, Dealing Asstt., Smt. Shakuntala Joshi,
Asstt. Registrar (N), N. Diwakar, the then RCS,
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P. K. Thirwani, the then auditor and Sushil
Kumar Sharma the then Clerk Gr.Ill has also
committed substantive offences punishable u/s
13(2) r/w 13(1)(d) of P. C. Act.
32. It is alleged that accused Vishwanath Agarwal
has also committed substantive offences u/s
420 and 471 I PC; accused Ashwani Sharma
has committed substantive offences u/s 468 and
471 IPC; accused Ashutosh Pant has also
committed substantive offences u/s 419,468
and 471 IPC and accused Naveen Kaushik has
also committed substantive offences u/s 468
IPC. The charge sheet has been filed
accordingly.
FRAMING OF CHARGES
33. Vide detailed order dated 15.03.2021, Ld.
Predecessor of this Court decided the charges
against the accused persons. Accordingly, charges
were framed on 21.10.2021 against accused
persons as under:
1 Markandey Mihsra Under section 120 B r/w
419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC
Act,1988
AND
substantive offences u/s 13(2) r/w
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13 (1) (d) of PC Act,1988
2 Shakuntala Joshi Under section 120 B r/w
419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC
Act,1988
AND
substantive offences u/s 13(2) r/w
13 (1) (d) of PC Act,1988
3 Narayan Diwakar Under section 120 B r/w
419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC
Act,1988
AND
substantive offences u/s 13(2) r/w
13 (1) (d) of PC Act,1988
4 Vishwa Nath Agarwal Under section 120 B r/w
419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC
Act,1988
AND
substantive offences u/s 420 and
471 IPC
5 Mohit Saxena Under section 120 B r/w
419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC
Act,1988 .
Ashok Kumar Choudhary Under section 120 B r/w
419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC
Act,1988
7 Sandeep Sahni Under section 120 B r/w
419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC
Act,1988
8 Ashwani Sharma Under section 120 B r/w
419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC
Act,1988
AND
Substantive offences U/S 468/471
IPC.
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9 Ashutosh Pant Under section 120 B r/w
419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC
Act,1988.
AND
substantive offences u/s
419/468/471 IPC
10 P.K.Thirwani Under section 120 B r/w
419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC
Act,1988
AND
Substantive offences U/S 13(2)
r/w 13 (1) (d) of PC Act,1988
11 Navin Kaushik Under section 120 B r/w
419/420/468/471 IPC and U/S
13(2) r/w 13 (1) (d) of PC
Act,1988
AND
Substantive offences U/S 468 IPC
12 S.P.Saxena Under section 120 B r/w 419/
419/420/468/471 IPC and U/S
13(2) r/w 13 (1) (d) of PC
Act,1988
34. All the accused persons pleaded not
guilty to the aforesaid charges so framed and
claimed trial.
ABATEMENT OF PROCEEDINGS AS
AGAINST THE ACCUSED S.P.SAXENA (A-12)
AND S.K.SHARMA (A-13)
35. Here it is pertinent to mention that during
the pendency of the present case, accused
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S.P.Saxena (A-12) and S.K. Sharma (A-13) have
expired and proceedings against them were abated
vide order dated 29.05.2023 and 10.09.2018.
PROSECUTION WITNESSES.
36. In order to prove its case, the prosecution
has examined 15 ( Fifteen ) witnesses. For the
sake of convenience, the witnesses have been
categorized in different groups. Although, the
detailed testimonies of the prosecution witnesses
shall be discussed herein after in the subsequent
para’s. However, it would be appropriate to
discuss in brief the testimonies of these witnesses
to have an overview of the nature and kind of
evidence which has come on the record.
The witnesses who are promoter members
and were falsely shown to have resigned or
the witnesses who were falsely shown as
member of the society .
37. PW 6 is Pawan Khosla, who has deposed that
since the year 1998, he was doing the business of
Printing. He never became the member of the
society namely Nishat CGHS. He has deposed that
he never remained the President of any society
including the Nishat CGHS.
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38. He has been shown document placed at D-26, an
affidavit dated 30.09.2002 and an affidavit dated
26.08.2002, Ex. PW6/A and Ex. PW4/X,
purported sworn in his name to which he has
deposed that the said affidavits does not bear his
signatures at points A. He has also been shown
document (D-12, page 109 to 110), an application
dated 04.09.2002 Ex. PW6/B, a request for revival
of Nishat Cooperative Society Limited North
Zone. He has deposed that he never signed Ex
PW6/B, as a President of the society and denied
his signature at point A on that exhibit. He has
also been shown document ( D-20) ie audit report
Ex PW6/C ( colly). He has deposed that the audit
report does not bear his signatures at page 169,
170, 175, 176, 182, 183, 189, 190, 195, 196, 200,
203, 210 and 211. He has also been shown a
document (D-15), the list of members Ex. PW6/D
(colly.) in respect of Nishat CGHS at page 123 to
129. He has deposed that the aforesaid list does
not bear his signatures as President at points A.
39. He has deposed that he never appeared or visited
the office of RCS and never met any Registrar of
the societies. He has deposed that he even did not
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meet or visit the Registrar, office of Registrar of
Cooperative Societies on 08.10.2002.
40. He has been shown a document (D-21) annual
general body meeting dated 23.06.2002, Ex.
PW4/X8 (colly.). He has deposed that the said
annual general body meeting does not bear his
signature at point A. He has also been shown a
document ( D-22), meeting of management
committee dated 23.06.2002,Ex. PW6/F. He has
deposed that the said meeting of management
committee does not bear his signature as President
at point A.
41. He has been shown document ( D-22) meeting of
management committee dated 25.07.2002, Ex.
PW6/G. He has deposed that the aforesaid meeting
of management committee does not bear his
signature as President at point A. He has also been
shown document ( D-22), meeting of management
committee dated 30.10.2002 Ex. PW6/H. He has
deposed that the aforesaid meeting of management
committee does not bear his signature as President
at point A.
42. He has been shown a document ( D-22), meeting
of management committee dated 09.11.2002, Ex
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PW6/I; document ( D-22) meeting of management
committee dated 25.11.2002 Ex. PW6/J; document
( D-22) meeting of management committee dated
22.12.2002,Ex. PW6/K; document (D-22) meeting
of management committee dated 15.01.2003, Ex.
PW6/L; document (D-22) of management
committee dated 02.02.2003, Ex. PW6/M;
document placed at D-24, from page 4 to 10,
special general body meeting dated 05.03.2003
regarding election Ex PW6/N; document (D-24)
special general body meeting dated 05.03.2003
regarding election, Ex PW6/O. He has deposed
that the aforesaid documents does not bear his
signature.
43. He has deposed that accused Ashutosh Pant may
be known to his in-laws but not to him.
44. This witness has been cross examined on behalf
of accused Narayan Diwakar and rest of the
accused persons adopted the same cross
examination as has been done on behalf of
accused Narayan Diwakar. However cross
examination on behalf of accused Markandey
Mishra and Shakuntla Joshi, nil despite given
opportunity to them.
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45. PW 7 is Sh Abdul Malik, who has deposed that
the said society (Nishat CGHS) was registered
with the office of Registrar Cooperative Societies
in the year 1979 or 1980. He was the Secretary of
the said Society and at that time, the society was
registered with 70 members. He has deposed the
society was registered probably at a address 7642,
Quresh Nagar, Sadar Bazar, Delhi-110006.
46. He has deposed that after a short while there was
a dispute and the working of the society was
stopped. All the records and documents pertaining
to the said society were in the possession of one
Sh. Chirabudeen, Advocate who was the President
of the Society, who has already expired.
47. He has deposed that as per his knowledge, the
society remained locked till 1990 and thereafter it
was unlocked. He has deposed that he do not have
any knowledge about any type of communication
pertaining to the said society with any department
or a person. He do not remember as to when the
society went into the liquidation. He has further
deposed that since within one year of registration
of the said society, there was a dispute and
thereafter he did not take part of any type of
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proceedings pertaining to the said society.
48. He has further deposed that two persons namely
Tomar and Saxena might have contacted the
President Sh. Chirabudeen but nobody had
contacted him. Once Sh. Chirabudeen had told
him that above mentioned persons had contacted
him. He has deposed that he never resigned from
the aforesaid society. Even none of the original
members had resigned from the said society.
49. He has deposed that documents ( D-6) the
application for registration of the society Ex.
PW7/A (colly.) bears his signatures as a Secretary
at points ‘A’ and as a member at points ‘B’. He
has deposed that the Bye laws of the society along
with the list of members Ex PW7/B ( Colly) bears
his signatures at each of the pages at points A. He
has deposed that at the time of registration, he had
submitted an affidavit dated 16.10.1979 Ex.
PW7/C, which bears his signatures at points ‘A’.
He has deposed that affidavit ( D-26), Ex. PW7/D
was never executed by him, which was shown to
have been executed in the year October, 2002. Ex
PW7/D does not bear his signatures at points ‘A’.
50. He has been shown proceeding register ( D-21).
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He has deposed that he had never attended any
meetings of the present society including the
meetings dated 23.06.2002 Ex. PW4/X-8 (colly.)
The General Body Meetings dated 23.06.2002 Ex.
PW6/E (colly.) does not bear his signature at point
‘A’ against serial no.1. His signatures have been
forged by someone. He has also been shown
proceeding register (D-23). He has deposed that he
had never attended any meetings of the present
society including the meetings dated
15.04.2003,Ex. PW7/E. He does not know as to
how his name has been shown in the said meeting,
as one of the members who had attended the
meeting. He has also been shown proceedings
Register ( D-24). He has deposed that he had
never attended General Body Meeting, dated
02.12.2002, Ex. PW6/N as someone has forged
his signature against serial no. 18 at point ‘A’ .
51. This witness has been cross examined on behalf
of accused Vishwanath Aggarwal, but not by rest
of the accused persons despite the opportunity
being given to them.
52. PW 8 is Sh Mukesh Bhardwaj, he has deposed that
in the year 2003, he was running Tour and Travel
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Private Limited Company in the name of M/s R.J.
Tour and Travel Limited at 15-A/56, Saraswati
Marg, Karol Bagh, New Delhi-11005. He has
deposed that his friend namely Pratap Rustogi
was the member of the said society. He asked him
(PW8) to become the member of the said society.
Since, he was in need of a house, therefore, he
became the member of the said society in the year
2003.
53. He has deposed that one Sh. V.N. Aggarwal who
was the President of the society was a Builder and
looking after the society. He had made a total
payment of Rs. 8 lakhs in two or three
installments. The entire payment was made by him
through cheques. He has deposed that as and
when, he visited V.N. Aggarwal along with his
friend Sh. Pratap Rustogi, they came to know that
some land has been allotted to the said society. He
has deposed that he informed Sh. V.N. Aggarwal
that he would have to take bank loan for the
payment in respect of flat. He has deposed that
V.N. Aggarwal told him that he would provide
him required document to facilitate the bank loan.
He has further deposed that after repeated request
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for getting a flat, he could not succeed. He has
deposed that he requested to refund his deposited
amount of Rs. 8 Lakhs and V.N. Aggarwal has
refunded his deposited amount. He has deposed
that he had deposited the amount in the name of
the society Nishat CGHS through cheque.
54. This witness has not been cross examined on
behalf of any of the accused persons despite the
opportunity being given to them.
55. PW9 is Sh Guljar Ahmed, he has deposed that
during the year 1979, he was doing the business
with his father and they were skin merchant. He
has deposed that his father had made him a
member of CGHS. The name of the said society
was Nishat Cooperative Group Housing Society.
He has deposed that he do not remember the year
when he became the member of the said society,
but its around 20-22 years old matter.
56. He has deposed that he had never resigned from
the said society. He do not remember if he had
signed some affidavit or not in the year 2002. He
has been shown a document/affidavit dated
17.10.1979 ( D-7 ). He has deposed that said
affidavit Ex. PW-9/A bears his signatures at points
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A. He has also been shown another affidavit dated
01.10.2002, ( D-26 ) After going through the
same, he has deposed that it does not bear his
signatures at points A. He had never executed the
aforesaid affidavit Ex PW9/B and had never
signed the same. He has deposed that one
Chiragguddin Qureshi was the Advocate and the
Secretary of the said society as he was known to
his father. He has deposed that he do not know
any person in the name of Pawan Khosla, Kewal
Krishan and Anand Ballabh in respect of the said
society.
57. This witness has not been cross examined on
behalf of any of the accused persons despite the
opportunity being given to them.
58. PW 10 is Sh Pratap Rastogi, who has deposed that
he along with his wife had become a member of
Nishat CGHS during the year 2003-2004 through
Sh. Vishwanath Aggarwal who was looking after
the present society affairs. He has deposed that he
had deposited Rs. 110/- towards membership fee.
Apart from that he had paid Rs. 8,00,000/- in his
name and Rs. 2,00,000/- in his wife name through
account payee cheque to Vishwanath Aggarwal.
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He has deposed that the payments have been
deposited in respect of getting flats from the
present society. His membership number was
128 and his wife’s membership number was 129.
59. He has deposed that he along with his wife
resigned from the society as he did not like the
location of the plot of land allotted to the society
and the layout design of the flat. He has deposed
that he and his wife got their payment refunded
from the society. He has deposed that he never
filed any affidavit in the present society and he
was not aware that he was not entitled to have
two flats in CGHS at that time.
60. This witness has been cross examined on behalf
of accused Narayan Diwakar and Vishwanath
Aggarwal but not by rest of the accused persons
despite the opportunity being given to them.
61. PW11 is Sh Ravi Kapur, who has deposed that he
had availed the membership of Nishat CGHS in
the year 2004. He had taken the membership
through Sh. Vishawanath Aggarwal. He has
deposed that he do not know the exact status of
said Vishwanath Aggarwal in the said society, but
he was the main person who was representing the
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society. And the entire deal took place with him
only. He has deposed that he had been allotted the
flat in the said society against Membership No.
169. He has deposed that he do not know as to
who has constructed the flats in the said society
but Sh. Viswanath Aggarwal was always a contact
point for them all time. He has deposed that he do
not exactly remember as to how much payment
was made by him, but as per his memory, he had
made a payment of Rupees around 48 Lakhs to the
society for the allotment of the flat.
62. He has deposed that at the time of availing
membership in the said society, he did not make
any enquiry about the background of the said
society and even Vishwanath Aggarwal had not
told him anything about the said society.
63. This witness has been cross examined on behalf
of accused Narayan Diwakar and Vishwanath
Aggarwal but not by rest of the accused persons
despite the opportunity being given to them.
64. PW12 is Dr Rakesh Kapur, who has deposed that
he had availed the membership of Nishat CGHS in
the year around 2004 and had taken the
membership through Sh. Vishawanath Aggarwal.
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He has deposed that he do not know the exact
status of said Vishwanath Aggarwal in the said
society, but he was the main person who was
representing the society and the entire deal took
place with him only.
65. He has deposed that he had been allotted the flat
in the said society against Membership No. 170.
He do not know as to which company had
constructed the flats in the said society, but Sh.
Viswanath Aggarwal was always a contact point
for them all time. He has deposed that as per his
memory, he had made payment of Rupees around
48 lakhs to the society for purchase of the flat. The
said payment was comprising of cash as well as
through cheque. The cheque was issued in the
name of society only. He has deposed that at the
time of availing the membership in the said
society, he did not make any enquiry about the
background of the said society. Even Vishwanath
Aggarwal had not told him anything about the said
society. He has deposed that he do not have any
knowledge about the advertisement regarding the
available vacancy in the membership of the said
society.
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66. This witness has been cross examined on behalf
of accused Narayan Diwakar and Vishwanath
Aggarwal but not by rest of the accused persons
despite the opportunity being given to them.
67. PW14 is Sh Dayanand Gupta, he has deposed that
In the year 2004, he was residing at RZ-686,
Main Road, Palam Colony, Delhi and at that time
he was doing the business of clothes/textiles. He
knew Vishwananth Aggarwal as he used to come
to his shop to buy the clothes. He has deposed
that he had taken the membership of the present
society in the year 2004 on asking of one Sanwar
Mal. He has deposed that he had made a payment
of Rs. Around 25 Lakhs to the society against the
allotment of flat. The said payment was made by
cheque in the name of the society. He has deposed
that he had handed over the cheque to one Sh.
Radhey Shyam. As per his memory, Sh. Radhey
Shyam was the treasurer of the society. He has
deposed that once he was elected as a President
and once as a Secretary in the managing
committee of the said society. He has further
deposed that as per his memory, when he was the
Secretary of the society, Sh. Radhey Shyam was
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the Treasurer and Vishwananth Aggarwal was the
President. He has deposed that Sh Radhey Shyam
used to operate the bank account pertaining to the
society during the time when he (PW14) was the
Secretary of the society.
68. He has further deposed that he had attended few
meetings pertaining to the society but do not
remember the exact date of his visit at the
construction site. Again deposed that he had
never visited the construction site. He has deposed
that one Sh. Sandeep Sahani was carrying the
construction and the name of the construction
company was Prime Developers.
69. He has further deposed that he do not know who
had made the payment to the DDA on behalf of
the society as he became the member of the
present society after the allotment of the land. He
has deposed that he came to know that the present
society has been revived prior to that I was not
aware about the same.
70. He has further deposed that he has attended
proceedings dated 20.06.2005, Ex PW14/A;
proceedings dated 27.07.2005, Ex PW14/B;
proceedings dated 10.08.2005, Ex PW14/C;
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proceedings dated 02.09.2005, Ex PW14/D;
proceedings dated 20.10.2005, Ex PW14/E;
proceedings dated 14.11.2005, Ex PW14/F;
proceedings dated 20.12.2005, Ex PW14/G;
proceedings dated 20.01.2006, Ex PW14/H;
proceedings dated 18.02.2006, Ex PW14/I and
proceedings dated 23.03.2006, Ex PW14/J and
which bears his signature at point A on all the
aforesaid proceedings.
71. He has further deposed that during the
investigation, his specimen signatures/writings
were taken by the CBI from S-298 to S-300 vide
Ex PW14/K ( Colly) which bears his signatures at
points ‘A’ on each pages.
72. In the cross examination, being conducted by
Learned Senior PP for CBI, he has deposed that
Vishwananth Aggarwal had told him that the
documents pertaining to the present society have
been stolen by someone but he was never told by
him that for that he had lodged an FIR. He has
further deposed that he do not remember if Sh.
Vishwananth Aggarwal had told him or not that he
had taken Rs. 38 Lakhs as a loan from Sh.
Sandeep Sahani.
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73. This witness has been cross examined on behalf
of accused Narayan Diwakar and Vishwanath
Aggarwal but not by rest of the accused persons
despite the opportunity being given to them.
Witnesses from the office of Registrar
Cooperative Society.
74. The office of RCS is the controlling and
supervising Government authority over the Co-
operative Group Housing Societies. It is a matter
of fact that a file pertaining to each of such
societies is also maintained in the office of RCS
from the stage of its formation and registration and
all communications made with the society are
placed in such a file by the office of RCS.
75. In the present case also, the allegations against the
private accused persons are that they submitted a
false list of members which was based upon
forged and fake resignations and enrollments. The
file was processed in the office of RCS and some
of the RCS officials were also allegedly involved
in the conpiracy. Certain officials/officers during
the relevant time who had actually processed the
file pertaining to the present society, were either
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posted as dealing assistants, or Assistant Registrar,
and finally all proposals were approved by the
Registrar, RCS.
76. The prosecution has examined an official from the
RCS office to prove the proceedings, notings and
certain communications between the office of the
RCS and the society,as maintained in the office of
RCS. In this regard, prosecution has examined
following witness from the office of RCS.
77. PW 5 Sh Harjeet Singh Choudhary, remained
posted as Assistant Registrar ( North ) in the
office of RCS New Delhi from 02.06.2006 to
10.09.2007. He has deposed that the file Ex.
PW5/A indicate that the said file was maintained
by the office of RCS and it pertains to the Nishat
CGHS.
78. This witness has been cross examined on behalf
of accused Vishwanath Aggarwal, Mohit Saxena
and P.K. Thirwani, but not by rest of the accused
persons despite the opportunity being given to
them.
Sanctioning Authority
79. In the present case, there are allegations that
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accused Smt. Shakuntala Joshi the then AR(N)
directed accused Markandey Mishra, dealing
Assistant to conduct the verification of the
documents, who as a part of the conspiracy,
fraudulently and dishonestly did not verify the
resignations/enrollments of some of the members
from the original records of the society available
with him. He submitted a false report dated
22.10.2002, relating to verification of records of
society to Smt. Shakuntala Joshi in which he had
recommended the cancellation of the winding up
order of the society. The allegations are also there
that as a part of the conspiracy accused
Shakuntala Joshi, the then AR(N) fraudulently
and dishonestly, forwarded the said report directly
to N. Diwakar the then RCS, Delhi. She had not
verified the records submitted by the society with
those available in her office. The allegations are
also against her she had by passed the normal
channel of Dy. Registrar and Joint Registrar of the
office of RCS while recommending the case of the
society for revival. There are also allegations that
in furtherance of the said criminal conspiracy, the
society was ordered to be revived by Shri N
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Diwakar, while acting as a public servant in the
capacity of RCS Delhi and he dishonestly issued
order dt. 01.11.2002 by abusing his official
position being public servant. He has issued the
order on the basis of slew of forged documents
submitted by Sh. Ashutosh Pant which had been
forged by Ashwani Sharma, and Naveen Kaushik.
80. There are allegations in pursuance of said criminal
conspiracy one of the condition for revival was
fulfilled by accused P.K. Thirwani, the then
Auditor, in the office of RCS, Delhi. Who
fraudulently and dishonestly by abusing his
official position as a public servant submitted a
false undated audit report in respect of the audit of
the society for the period 1979-1980 to till 2002 in
which Sh. Ashutosh Pant has forged the signatures
of Anand Ballabh. At the conclusion of the
investigation they have also been charge-sheeted.
Since they were the public servants, hence during
the investigation requisite sanction u/s 19 of
Prevention of Corruption Act, 1988 was obtained
by the IO. The authorities which had accorded the
sanction to prosecute the above named accused
persons, have been examined as prosecution
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witnesses, which are as under:
81. PW 1 is Sh C.M. Sharma, who has deposed that in
the year 2007, he was posted as Comptroller of
Accounts in Principal Pay and Accounts office,
GNCT of Delhi. He has deposed that he had
received a request for sanction in respect of
accused Markandey Mishra, who was posted in his
department from the office of RCS, Delhi. He has
deposed that he has granted sanction order dated
24.12.2007 Ex PW1/A for prosecution of accused
Markandey Mishra after pursing all relevant
documents received from CBI including statement
of witnesses and the report of the IO to form his
opinion.
82. This witness has been cross examined on behalf
of the accused Markandey Mishra but not by rest
of the accused persons despite the opportunity
being given to them.
83. PW2 is Sh Ashutosh Kumar, who has deposed that
during the year 2007 to 2010 he was posted as
Addl. Secretary, Directorate of Vigilance, Govt. of
NCT Delhi. He has deposed that in the month of
May, 2008, a request for issuing sanction to
prosecute A2 Shakuntala Joshi was received. He
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had processed the file as the competent authority
was the Lt. Governor of Delhi, who had authorised
him to authenticate his orders.
84. He has deposed that the file alongwith all the
documents received was sent to the office of the
Lt. Governor where it was scrutinized at various
levels. After due application of mind, when it
came back with the orders, he issued the sanction
order dated 12.05.2008 on behalf of and in the
name of the Lt. Governor vide Ex. PW 2/A and
the covering letter is Ex. PW 2/B.
85. This witness has been cross examined on behalf
of the accused Shakuntla Joshi but not by rest of
the accused persons despite the opportunity being
given to them.
86. PW3 is Sh Rakesh Mehta, who has deposed that
he was posted as Chief Secretary from December
2007 to March 2011. He has deposed that CBI had
sent a report in the matter relating to some society
when accused P. K. Thirwani was posted as
Auditor in the office of RCS. On the basis of the
investigation, documents and the statements of
witnesses, CBI had requested for sanction for
prosecution in the year 2008. After going through
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the records submitted by the CBI, he found it a fit
case for grant of sanction for prosecution against
accused P. K. Thirwani. He has granted sanction
order Ex. PW 3/A for the prosecution against
accused P. K. Thirwani, who was a Grade I
DASS Officer. He (PW3) was the competent
authority to remove him.
87. This witness has been cross examined on behalf
of the accused P.K.Thirwani,but not by rest of the
accused persons despite the opportunity being
given to them.
Expert witness.
88. During the course of investigation certain
specimen and admitted writings/signatures were
sent to GEQD for examination by the CBI to
establish the case of forgery and role of accused
persons who committed the forgery. Prosecution
has examined PW4 as expert to prove the report
Ex PW4/B, PW4/E and PW4/F.
89. PW 4 is Sh S. Ahmed, AGEQD, he has deposed
that GEQD, Shimla had received the present case
from SP, CBI, EOU-VI, New Delhi vide letter no.
102/3/9/2006-EOU-VI/DLI dt. 11.05.2007 along
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with 3 annexures,Ex. PW4/A (colly.)
90. He has deposed that present case was allotted to
him and he has examined the questioned
documents with the specimen documents. He
prepared his opinion bearing no. CX233/2007 dt.
29.09.2007 and the same was sent to SP, CBI,
EOU-VI, New Delhi vide covering letter dt.
07.11.2007, which bears the signature of Sh. N.C.
Sood. He has identified the signature of Sh. N.C.
Sood at point A. He has identified his signature
at points A on both the pages of the opinion Ex.
PW4/B. He has also identified the signature of
Sh. Mohinder Singh, Dy. GEQD at points B on
both the pages of the opinion.
91. He has deposed that the documents were
independently examined by Sh. Mohinder Singh,
Dy. GEQD also. The reasons for the opinion were
also sent along with the opinion. He has identified
his signatures at points A on each page of the
reasons for the opinion Ex. PW4/C.
92. He has further deposed that another set of
documents were received for examination from
SP, CBI, EOU-VI, New Delhi vide letter no.
9697/EOU-VI dt. 24.12.2007,Ex. PW4/D. He has
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deposed that the said documents were also
allotted to him and he has examined the
questioned documents with the specimen
documents. He has prepared the supplementary
opinion bearing no. CX233/2007 dt. 20.02.2008,
Ex. PW4/E and the same was sent to SP, CBI,
EOU-VI, New Delhi vide covering letter dt.
28.02.2008 which bears the signature of Sh. N.C.
Sood. He has identified his signature at point A
on the opinion. He also identified the signature of
Dr. B.A. Vaid, Dy. GEQD at point B on the
opinion.
93. He has further deposed that the documents were
independently examined by Dr. B.A. Vaid, Dy.
GEQD also. The reasons for the supplementary
opinion were also sent along with the opinion. He
has identify his signatures at point A on the
supplementary reasons for the opinion Ex. PW4/F.
94. This witness was cross examined on behalf of
accused Ashwani Sharma, Ashutosh Pant, Naveen
Kaushik, Vishwanath Aggarwal, and Mohit
Saxena and not by remaining accused persons
despite opportunity being given to them.
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Other Witnesses
95. One of the allegations against the
accused persons is that some of the accused
persons got forged the record of the society. To
establish the same, during the investigation, IO
has taken the specimen handwritings/ signatures of
certain persons including accused persons. While
taking the said specimen handwritings/signatures,
some witnesses were called to witness such
proceedings by the CBI. Those persons have been
examined by the CBI as prosecution witnesses
which are as under:-
96. PW 13 is Sh Ashok Kumar, who has deposed that
during the year 1996-1997, he used to reside in
the house of S.P. Saxena (proceedings already
stands abated) as a tenant and that is why he was
known to him. S.P. Saxena was a property dealer.
He has deposed that once he had gone to him
( S.P.Saxena) to collect the insurance premium
then S.P. Saxena asked him as to how he usually
spent time on weekends i.e. Saturday and Sunday.
He ( S.P. Saxena) offered him part time job on
Sunday for one hour. He has deposed that S.P.
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Saxena (proceedings already stands abated) used
to dictate him and he used to write. Once he
asked him to write the proceedings. PW13 told
him that he do not know as to how the
proceedings are to be recorded. Then he told him
that he would dictate it to him and then he has to
write it. He has deposed that the said proceedings
were pertaining to some society.
97. This witness has been shown the proceedings
dated 23.06.2002 placed at D-22, Ex. PW6/F;
proceedings dated 25.07.2002 placed at D-22, Ex.
PW6/G; proceedings dated 18.08.2002 placed at
D-22,Ex. PW13/A; proceedings dated 15.09.2002
placed at D-22 Ex PW13/B; proceedings dated
30.10.2002 placed at D-22 Ex PW6/H;
proceedings dated 09.11.2002 placed at D-22 Ex
PW6/I; proceedings dated 25.11.2002 placed at
D-22, ExPW6/J; proceedings dated 22.12.2002
placed at D-22, Ex PW6/K; proceedings dated
15.01.2003, placed at D-22, Ex PW6/L;
proceedings dated 02.02.2003 placed at D-22, Ex
PW 6/M; proceedings dated 04.02.2003 placed at
D-22, Ex PW13/C and proceedings dated
05.03.2003 placed at D-22, Ex PW13/D. He has
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deposed that all the proceedings were recorded by
him on the dictation of S.P. Saxena.(proceedings
already stands abated)
98. He has been shown the proceedings Ex. PW13/E
of taking over of specimen signatures/writings
from S-278 to S-283. He has deposed that
aforesaid proceedings were recorded by the IO
during the investigation. He has deposed that IO
had taken his specimen signatures/handwritings
which bears his signatures at points ‘A’.
99. He has deposed that he know one person namely
Sh. A.K. Gupta who used to visit the office of
S.P. Saxena (proceedings already stands abated).
As per his memory, Sh. A.K. Gupta was an
Advocate. Once he had been taken to the office of
RCS by Sh. A.K. Gupta at the instance of Sh. S.P.
Saxena for revival of some society.
100. This witness has been not been cross examined by
any of the accused persons despite opportunity
being given to them.
Witnesses from CBI
101. In the present case, the FIR was registered
pursuant to the orders dated 9.01.2006 &
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13.02.2006 of Hon’ble High Court of Delhi , a
preliminary enquiry was conducted by the CBI
officer and at the conclusion of the preliminary
enquiry, a regular case was registered. During the
investigation certain documents were received and
seized from the office of RCS and also from the
office of DDA. From the stage of carrying out
preliminary enquiry till filing of charge-sheet, the
officers from CBI, who one way or another, were
part of the investigation have been examined as
prosecution witnesses, which are as under:
102. PW 15 is Inspector Devender Singh, he has
deposed that during the year December, 2006, he
was posted in CBI, EOU-VI, EO-II Zone, New
Delhi as Inspector. He has deposed that he had
conducted a preliminary enquiry in the present
case and submitted his detailed PE report to SP
concerned. He has deposed that vide complaint
dated 01.12.2006, Mark PW15/A with request to
register a regular case bears impression of his
signatures at points ‘A’. He has deposed that the
FIR dated 01.12.2006 Ex. PW15/B was initially
marked to Inspector B.S. Jha and bear the
signature of Sh. M.C. Joshi, the then SP, CBI at
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points ‘A’.
103. He has deposed that during preliminary enquiry,
he had collected certain documents from V.N.
Aggarwal, the President of Nishat CGHS.
104. He has deposed that the receipt memo dated
02.05.2006, Mark PW15/C bears impression of his
signatures at point ‘A’. He has also identifies the
impression of signatures of Sh. V.N. Aggarwal at
points ‘B’ as who has signed in his presence.
105. He has further deposed that after registration of
regular case, the documents were handed over to
the IO of the present Inspector B.S. Jha vide
handing over/taking over memo dated 21.12.2006.
106. He has deposed that vide Handing Over/Taking
Over memo, Mark PW15/D, he had handed over
the documents Mark PW15/E (colly.) to Inspector
B.S. Jha, IO of the present case.
107. He has deposed that the letter dated 24.12.2007,
Ex. PW4/D,bears the signatures of the then SP ,
Sh. S.K. Peshin at point ‘A’. He has further
deposed that the letter dated 11.05.2007, Ex.
PW4/A bears the signatures of the then SP Sh.
A.K. Ohri at point ‘A’ and signatures of Sh. B.S.
Jha at points ‘B’.
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108. He has deposed that proceedings of taking over of
specimen signatures/writings from S-1 to S-302
Ex. PW15/F (colly.) bears the signatures of Sh.
B.S. Jha, the then IO of the present case at points
‘X’.
109. This witness was cross examined on behalf of all
the accused person except accused Mohit Saxena
despite opportunity being given to him.
STATEMENTS OF ACCUSED PERSONS UNDER
SECTION 313 Cr PC
110. After conclusion of prosecution evidence. The
statements of accused persons u/s 313 Cr.PC were
recorded on 05.06.2024 and 08.07.2024 by this
Court.
111. During the statement recorded u/s 313 CrPC, of
accused Markandey Mishra he has answered to
most of questions in the manner as either ” I have
no knowledge or it is matter of record. ” However he
has answered differently to few questions. Out of
the questions whose answers were given
differently by the accused Markandey Mishra
were basically pertain to the evidence which has
come on record during the deposition of PW1
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C.M. Sharma. The accused has answered the
question on sanction as: ” The sanction order was
issued mechanically without application of mind. No
documents were forwarded by CBI to the sanctioning
authority. The sanction order was issued as replica of the
draft sanction order sent by CBI. It is an invalid sanction
order.”
112. When the accused Markandey Mishra was asked
as to why this case is against him , he replied that
“None of the prosecution witnesses have deposed anything
incriminating against him.”. Accused Markandey
Mishra opted to lead evidence in his defence and
has examined Sh Anurag Singh as DW1.
113. Similarly, the answers given by accused Shakuntla
Joshi , during the statement recorded u/s 313 Cr
PC, were to most of the questions put to her as
either ” I have no knowledge ” or ” it is a matter of
record” However she has answers to few
questions.
114. To answer the questions regarding regarding
issuance of sanction order Ex PW2/A against her.
She has replied that ” It is incorrect. The sanction
order was issued mechanically without application of
mind. No documents were forwarded by CBI to the
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sanctioning authority. The sanction order was issued as
replica of the draft sanction order sent by CBI. It is an
invalid sanction order.”.
115. When the accused Shakuntla Joshi was asked as to
why this case is against her. She has replied that
“None of the prosecution witnesses have deposed anything
incriminating against me. Accused Shakuntla Joshi
opted to lead evidence in her defence and has
examined Sh Mukesh Kumar as DW2.
116. In reply to the question whether she wants to say
anything else , she replied:
” It is a false case against me. There is no
incriminating and legally admissible
evidence on record against me. None of the
prosecution witnesses have deposed
anything incriminating against me during
trial. There is no evidence on record as to
which rules, regulations/circular was
violated by me in the discharge of my
official duty. No incriminating material has
been recovered from me. No incriminating
evidence on record could be connected to
me during the course of trial. There is no
evidence on record of any pecuniary
advantage having been obtained by me at
any point of time. There is no evidence
(oral, documentary/circumstantial) on
record against me to establish my
involvement in the alleged criminal
conspiracy. I acted bonafide in the
discharge of my official duty.
My prosecution is void-ab-initio for want
of mandatory prosecution sanction u/s 197CBI Vs Markandey Mishra & Ors 54/131
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Cr.P.C. I am innocent.”
117. Similarly, the answers given by accused Narayan
Diwakar, during the statement recorded u/s 313
CrPC, to most of the questions put to him were
either ” I do not know or the witnesses have not stated
anything as against me” However he answered
differently to few questions.
118. In respect of the question regarding not signing of
application dated 04.09.2002 by PW6 as President of
the said society. He replied that ” I do not know. The
witness had not stated anything as against me.”
119. When the accused Narayan Diwakar was asked as
to why this case is against him, he replied that ”
This is a false and baseless case against me.”.
120. In reply to the question whether he wants to say
anything else , he replied:
“I have been falsely implicated in the
present case. No PW,s have deposed as
against me. I would further like to submit
that In the present case the Liquidation
proceedings were never finalized. By the
operation of law (Rule 105 DCS Rules) the
winding-up proceedings stood automatically
terminated by after three years (maximum
period). As per Rule 105 of the Delhi
Cooperative Rules 1973 there is a provision
for the deemed termination of the winding-
up proceedings (maximum 3 years after the
passing of the winding-up order) after whichCBI Vs Markandey Mishra & Ors 55/131
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the Registrar is bound to cancel the
winding-up orders by passing an order to
this effect in view of the Judgment of the
Division Bench of the Hon’ble Delhi High
Court (VIKAS CGHS v. RCS etc.). I
complied with the said orders of the
Hon’ble Delhi High Court.
I was appointed as the Registrar
Cooperative Societies (RCS) Delhi under
S.3 of the Delhi Cooperative Societies Act,
1972. At the time of the passing of the
order(s) of cancelling the winding-up I was
aware of the judgment delivered by the
Double Bench of the Hon’ble Delhi Court in
the Civil Writ Petition No. 1767 / 1986 case
entitled “VIKAS COOPERTIVE GROUP
HOUSING SOCIETY LTD. V. RCS
“(decided on 21st Nov. 1986).
Secondly it is submitted that cancelling the
winding-up order of the society had nothing
to do with the availability or the verification
of the records. The only aspect that was to
be taken into account was the provision of
Rule 105 of the Delhi Cooperative Societies
Rule, 1973. Therefore the act(s) performed
by me were done in absolute good faith
taking all the necessary steps as provided
under the law. The copy of the judgment in
“VIKAS CGHS v. RCS” is enclosed here-
with. There is no circumstance appearing
against me. Therefore I may kindly be
acquitted.
It is also pertinent to mention that the CBI
has neither obtained sanction to prosecute
under S.197 Cr.P.C. nor under S.19 of the
PC Act. The said two sanctions operate in
distinct mechanism and were mandatory
even for a retired public servant. As per the
newly amended law i.e. Prevention of
Corruption Act, (amended till 2018)
applicable even to the present case (pending
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trial) the sanction under S.19 of the PC Act
is now mandatory even for the retired public
servants. Needless to mention that the
provision of S.13(1)(d) of the old PC Act,
1988 has now been repealed. The present
case is devoid of merits and also suffers the
discrepancy due to the later amendments of
2018 which are applicable to the present
pending case.
Furthermore, it will be relevant to add that
Dr. Kamini Lau the Ld. Spl. Judge : CBI
had referred by way of reference under
S.395 Cr.P.C. raising the question of scope
& applicability vis-à-vis S.19 of the P.C.
Act in respect of retired servants in the
pending cases where the sanction under
S.19 of the PC Act has not been taken in
respect of the retired public servants. Thus
the reference of the matter relating to the
applicability of the newly amended PC Act
(2018 amendment) is still pending before
the Division Bench of Hon’ble Delhi High
Court. The Hon’ble Madras High Court in
the matter “M.Soundararajan v. State“
Crl.A.(MD) No.488 of 2018 has observed:
“14. By amending paragraph 8 in Part A of
the Schedule to the Prevention of Money
laundering Act, 2002 certain offences under
the prevention of corruption Act,1988 are
included to the PMLA,2002. Since, offence
analogous is already in statute prior to the
amendment, Chapter IV A and section 19 of
the Prevention of Corruption (Amendment)
Act, 2018 alone will fall away from
protection given under Article 20 (1) of the
Constitution and therefore will have
application to the pending cases either under
investigation or pending trial after
investigation.”
Charges of conspiracy levelled under
section 120(B) IPC are not sustainable
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against me. During my tenure as RCS, Delhi
from 2001 to 2004 the entire RCS office
was fully computerised by launching its
own website on which about 10 lakh data
was uploaded to cover to various
information pertaining to about 5000
Cooperative Societies including the group
housing societies with details of
management committee of all societies,
particulars of individual members, its
election and audit position were given for
the information to all concerned and the
effected citizens of Delhi. A wide
publication was also given this website
through local newspapers and electronic
media. There was facility for any type of
enquiry complaint from the effected /
interested persons of the public in order to
speedy redressal of their complaints and
grievances. The RCS office was given the
distinction of completing the gigantic task
of computerization in a fixed time schedule.
For this achievement, a letter of
appreciation was given by the Chief
Secretary of the Govt. of NCT of Delhi. It is
therefore emphasized that in the face of
such a transparency in the working of the
department there cannot be any scope for
any conspiracy of any kind either with any
official of the department or the persons
outside. It is established factor that
transparency and conspiracy cannot go
together.”
121. He has opted to lead evidence in his defence and
has examined Sh Saroj Chandra Pradhan as DW3.
122. The accused Vishwa Nath Aggarwal was
examined U/S 313 CrP.C. During the statement
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recorded u/s 313 CrPC, he has answered to most
of the questions as “I do not know or it is incorrect”.
However he answers differently to few questions.
123. To the questions, as deposed by PW.8 Sh Mukesh
Bhardwaj that you were the President of the society
and was a Builder and was looking after the society.
He replied that ” It is incorrect which is evident from his
cross examination.”
124. To the question, as deposed by PW.10 Sh Pratap
Rastogi that he along with his wife had become a
member of Nishat CGHS during the year 2003-2004
through you as you was looking after the affairs of
present society. He replied that ” He along with his
wife resigned from the society and got their refund back
from the society.”
125. When the accused Vishwa Nath Aggarwal was
asked as to why this case is against him ,he replied
that ” This is a false case against me.”
126. In reply to the question whether he wants to say
anything else , he replied:
“I have been falsely implicated in this case.
It is submitted that there is not any material
in the chargesheet to show my involvement
in the present matter. I was involved in this
matter because I was the president of the
society for some time but investigating
agency failed to appreciate the fact that I
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was became the member of the society after
the alleged revival of the society.”
127. He has opted to lead evidence in his defence and
has examined Sh Ramasray Singh as DW4 and
Shri Ram as DW5.
128. The accused Mohit Saxena was also examined
U/S 313 Cr P.C. He has answered to almost of the
questions put to him that ” I do not know. ”
129. When the accused Mohit Saxena was asked as to
why this case is against him. He replied that ” This
is a false case filed by the IO against me with malafied
intention. He has not conducted fair and proper
investigation. Further, he has made me scapegoat in this
case with vested interest. The investigation conducted by
IO was perfunctory, unfair, partial, shoddy and was in not
in accordance with law.”
130. In reply to the question whether he wants to say
anything else , he replied that :
“I am innocent. Investigation conducted by the
investigating officer in this case is perfunctory, partial,
improper and shoddy. Further, the investigating officer
has not taken my specimen handwriting / signatures,
nor I have given any specimen handwriting / signatures
in this case. I will file my written submission u/s 313(5)
Cr.P.C.”
131. Accused Mohit Saxena has not led evidence in
his defence.
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132. Accused Ashok Kumar Choudhary was also
examined U/S 313 Cr P.C. He has answered to all
the questions put to him that ” I do not know ”
133. When he was asked as to why this case is against
him , he replied that ” It is a false case against me”
134. In reply to the question whether he wants to say
anything else , he replied that :
“I have been falsely implicated in this case due to
biased and perfunctory investigation conducted by the
IO. There is no evidence against me either oral,
documentary or circumstantial. However I will file my
written submission at the time of final arguments.”
135. Accused Ashok Kumar Choudhary has not led
evidence in his defence.
136. The answers given by accused Sandeep Sahni,
during the statement recorded u/s 313 Cr.PC to the
questions put to him are that ” I do not know ”
137. When he was asked as to why this case is against
him , he replied.” It is a false case against me”
138. In reply to the question whether he wants to say
anything else , he replied that :
“I have been falsely implicated in this case due to
biased and perfunctory investigation conducted by the
IO. There is no evidence against me either oral,
documentary or circumstantial. However I will file my
written submission at the time of final arguments.”
139. Accused Sandeep Sahni has not led evidence in
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his defence.
140. Accused Ashwani Sharma , during the statement
recorded u/s 313 Cr.PC, has answered to all the
questions put to him. He replied that ” I do not
know ”
141. When he was asked as to why this case is against
him , he replied that ” This is a false case filed by the
IO against me with malafied intention. He has not
conducted fair and proper investigation. Further, he has
made me scapegoat in this case with vested interest. The
investigation conducted by IO was arbitrary, unfair and
was not in accordance with law.”
142. In reply to the question whether he wants to say
anything else , he replied that :
“I am innocent. Investigation conducted by the
investigating officer in this case is perfunctory, partial,
improper and shoddy. Further, the investigating officer
has not taken my specimen handwriting / signatures,
nor I have given any specimen handwriting / signatures
in this case. I will file my written submission u/s 313(5)
Cr.P.C.”
143. Accused Ashwani Sharma has not led evidence
in his defence.
144. Accused Ashutosh Pant, during the statement
recorded u/s 313 Cr.PC, has answered to all the
questions put to him that ” I do not know ”
145. When he was asked as to why this case is against
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him , he replied that ” This is a false case filed by the
IO against me with malafied intention. He has not
conducted fair and proper investigation. Further, he has
made me scapegoat in this case with vested interest. The
investigation conducted by IO was arbitrary, unfair and
was not in accordance with law.”
146. In reply to the question whether he wants to say
anything else , he replied that :
“I am innocent. Investigation conducted by the
investigating officer in this case is perfunctory, partial,
improper and shoddy. Further, the investigating officer
has not taken my specimen handwriting / signatures,
nor I have given any specimen handwriting / signatures
in this case. I will file my written submission u/s 313(5)
Cr.P.C.”
147. Accused Ashutosh Pant has not led evidence in
his defence.
148. The answers given by accused P.K. Thirwani,
during the statement recorded u/s 313 CrPC, to
most of the questions put to him were either ” I
have no knowledge or “It is a matter of record. I had
conducted the Audit of the Society in good faith, as per the
documents/ records produced by the society.” However,
he answered differently to few questions.
149. When the accused accused P.K. Thirwani was
asked as to why this case is against him , he
replied that ” I do not know. However the FI R was
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wrongly registered “
150. In reply to the question whether he wants to say
anything else , he replied:
“I was falsely implicated in the present case.
Investigation was biased and defaulty. There is no
incriminating evidence as against me. I have already
suffered enormously because of this false case. I
humbly pray to this Hon’ble Court to kindly acquitted
me in the interest of justice.”
151. Accused P.K. Thirwani has not led any defence
evidence.
152. The answers given by accused Naveen Kaushik,
during the statement recorded u/s 313 CrPC, to all
the questions put to him were ” I do not know” .
153. When the accused Naveen Kaushik was asked as
to why this case is against him , he replied that ”
This is a false case filed by the IO against me with
malafied intention. He has not conducted fair and proper
investigation. Further, he has made me scapegoat in this
case with vested interest. The investigation conducted by
IO was arbitrary, unfair and was not in accordance with
law.”
154. In reply to the question whether he wants to say
anything else , he replied:
” I am innocent. Investigation conducted by the
investigating officer in this case is perfunctory, partial,
improper and shoddy. Further, the investigating officer has
not taken my specimen handwriting / signatures, nor I have
given any specimen handwriting / signatures in this case. ICBI Vs Markandey Mishra & Ors 64/131
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will file my written submission u/s 313(5) Cr.P.C.”
155. Accused Naveen Kaushik has not led evidence in
his defence.
Defence on behalf of accused Markandey Mishra.
156. Accused Markandey Mishra examined one
witness in this defence namely Anurag Singh
(DW1). DW1 Anurag Singh is Assistant Section
Officer, Principal Accounts Office, GNCT,Delhi.
He has produced file/record Ex DW1/A ( Colly)
pertaining to the sanction for prosecution against
accused Markandey Mishra.
Defence on behalf of accused Shakuntla Joshi.
157. Accused Shakuntla Joshi has also examined
defence witness in her defence namely Mukesh
Kumar, (DW2). DW2 Mukesh Kumar is Assistant
Section Officer, Directorate of Vigilance, GNCT,
Delhi. He has produced file/record Ex DW2/A
( Colly) pertaining to the sanction for prosecution
against accused Shakuntla Joshi.
Defence on behalf of accused Narayan Diwakar.
158. Accused Narayan Diwakar has examined defence
witness in his defence namely Sh Saroj Chandra
Pradhan (DW1). Through this witness the accused
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Narayan Diwakar wants to prove on record that he
has work to streamline the functioning of Co
operative Group Housing Society and to maintain
the record.
Defence on behalf of accused Vishwanath
Aggarwal.
159. Accused Vishwanath examined two defence
witness in his defence one is Sh Ramasray Singh
(DW4) and another is Sh Shri Ram (DW5). DW4
Ramasray Singh, Manager Newspaper Veer
Arjun has brought on record the publication of
Newspaper Veer Arjun circulated on 27th
December, 2010, vide Ex DW4/A.
160. DW 5 Shri Ram is dispatcher of the Statesman
Newspaper. He has placed on record, the attested
copy of relevant page No.13 of Newspaper
statesman published on 27.12.2010 on behalf of
Nishat CGHS, vide Ex PW5/1.
161. I have heard Ld Counsel for the accused persons
as well as Ld Senior PP for CBI and have gone
through the file also. I have considered the
submissions being made my Learned counsels as
well as evidence on record.
162. Ld Senior PP for CBI has argued that prosecution
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has proved its case beyond reasonable doubts
against the accused persons. Ld Senior PP for CBI
has argued that the sanction in the present case
has been accorded by the competent authority
against the accused persons qua offences under
Prevention of Corruption Act. And so far as
sanction U/S 197 Cr P C is concerned, there is no
need to obtain the same as the Act being done by
the accused persons was not within the ambit of
their official work to consider the same being done
by them in discharge of their official duty.
163. Learned Senior PP for CBI has relied upon the
following case law:
I) Hema Vs State of Madrass Crl. Appeal
No.31 of 2013 State of Appeal.
ii) Murari Lal Vs State of MP AIR 531
iii) K. Satwant Singh Vs The State of Punjab,
1960 AIR 266, 1960 SCR (2)89
iv)Rakesh Kumar & Ors. Vs State Crl. Appeal
No.19/2007.
v) L. Narayan Swami Vs State of Karnataka
Crl. Appeal No.721 of 2016
vi) Harihar Prasad etc Vs State of Bihar 1972
CRIL J707, (1972) 3 SCC 89
vii) Sahabuddin & Anr Vs State of Assam
(Criminal Appeal)
viii) Munna Lal Vs State of Uttar Pradesh
criminal Appeal no-490 of 2017
ix)Shambhoo Nath Mishra Vs State of UP AIR
1997 Supreme Court
x) Yash Pal Mittal Vs State of Punjab 1978
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SCR
xi)Umesh Kumar Vs State of A.P. decided on
06/09/2013, criminal Appeal No-1305 of 2013.
xii) Darshan Lal Vs State decided on
31/07/2009, criminal Appeal No-73/2001.
xiii) State of Maharastra Tr. CBI Vs Mahesh G
Jain 28/05/2013, criminal Appeal
No-2345/2009
xiv) Jayawant Dattatray Suryarao Vs State of
Maharastra decided on 5th of November, 2001
xv) Pyare Lal Bhargava Vs State of Rajasthan
decided on 22 October, 1962.
164. On the other hand, Ld Counsel for accused
persons have vehemently argued that prosecution
has failed to prove charges being framed against
the accused persons.
165. Having considered the argument of the Ld
Counsel for CBI and accused persons, hereinafter
I am dealing with the case of the prosecution and
complicity of accused persons.
166. There is undisputed fact that the said society was
registered on 19.02.1980 having a strength of 69
members and having its registered office at 764,
Library, Qureshi Nagar, Sadar Bazar, Delhi.
167. It is also undisputed fact that the said society
after its registration could not pursue on account
of a dispute on its registered office which was
sealed under Court orders and documents of the
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society remained locked till the year 2002-2003.
There was no activity in the affairs of the society
during 1980 to 2002. As the society failed to
respond to various queries of RCS, Delhi, issued
from time to time relating to verification of
records in respect of the members etc., the said
society was put under liquidation by RCS on
27.09.1989.
168. Since in the charge sheet there are allegations that
the said society was allegedly revived on
01.11.2002 after making forgery in the documents
of the said society by hatching a conspiracy.
During the course of argument these fact has not
even argued by any of the counsel appearing on
behalf of accused who have been charge-sheeted
on this aspect.
169. The mute question before this Court is whether
any forgery has been committed in the documents
to get revive said society. Or forgery being
committed in the proceedings during the year
2002-2003, if yes by whom.
170. The testimony of PW 5 proves the fact that Ex
PW5/A ( Colly ), placed at D-6 to D-20 is the file
which has to be remained in the possession of
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R.C.S Office, Delhi. But same was handed over by
accused Vishwanath Aggarwal to PW 15 during
the preliminary enquiry. The PW6 proves the facts
that he had not filed the revival application of said
society Ex PW6/B dated 04.09.2002. He also
proves that the audit report Ex PW6/C does not
bears his signatures at page No.169,
170,175,176,182,183,189,190,195,196,200,203,21
0 and 211. He has also deposed that he has not
signed document Ex PW6/D to Ex PW6/O ( the
proceedings of said society during the period from
23.06.2002 to 05.03.2003). PW13 has deposed
that the proceedings in proceeding register of said
society Ex PW6/F to PW6/M were in his hand
writing. He has also deposed that Ex PW13/A to
PW13/E were in his handwritings. These evidence
being deposed PW5, PW6 and PW13 proves the
facts that the proceedings contained in D-22 and
exhibited by these witnesses in their testimonies
are false. And forgery was committed qua these
exhibits, as stated above by them in their
testimonies. These are the proceedings vide which
decision were taken for revival of the said society
and accepted resignation and enrollment of new
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members as well as election of Management
Committee of said society. All these evidence
proved that the society was revived on the basis of
forged documents by making forgery in the record
and false proceedings containing in D-22 were
recorded.
171. It would be appropriate to discuss here the law
relating to sanction for prosecution against
accused persons has been accorded properly by
the competent authority on perusal of record/
material available before it. To say whether the
sanction has been granted after due application of
mind by the sanctioning authority. As some public
servants are also being charged with the offence
in the present trial.
172. The sanction for prosecution of a public servant
for the offence under P.C. Act is required U/S 19
(1) of P.C Act . Before further proceeding I would
like to reproduce Sub Section (1) of Section 19 of
the PC Act.
“19. Previous sanction necessary for
prosecution.– (1) No court shall take
cognizance of an offence punishable
under Sections 7, 10, 11, 13 and 15
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alleged to have been committed by a
public servant, except with the previous
sanction, save as otherwise provided in
the Lokpal and Lokayuktas Act, 2013—
a) in the case of a person who is
employed in connection with the affairs
of the Union and is not removable from
his office save by or with the sanction of
the Central Government, of that
Government;
(b) in the case of a person who is
employed in connection with the affairs
of a State and is not removable from his
office save by or with the sanction of the
State Government, of that Government;
(c) in the case of any other person, of
the authority competent to remove him
from his office.”
173. On bare perusal of language of the section 19 (1)
of P.C Act, the court is precluded from taking
cognizance of an offence under certain sections
mentioned in this provision if prosecution wants to
prosecute a public servant. The sanction must be
from competent Government, it may be Central
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Government or State Government, as the case may
be. Even otherwise, if the cognizance is taken, this
issue can be raised subsequently and prosecution/
proceeding can be dropped if there is no valid
sanction on record. The provision deals the
intention of the legislature to protect a public
servant against harassment and malicious
prosecution.
174. The Hon’ble Apex Court in the case of Mohd.
Iqbal Ahmed v. State of Andhra Pradesh (1979 Cai
LJ 633) has observed as under:
“The grant of sanction is not an idle formality or an
acrimonious exercise but a solemn and sacrosanct act
which affords protection to Government servants against
frivolous prosecutions and must therefore be strictly
complied with before any prosecution can be launched
against the public servant concerned.”
175. The Privy Council in the case of Gokul-chand
Dwarkadas Momrka v. The King (AIR 1948 PC
82) has observed as under:
“The sanction to prosecute is an important matter, it
constitutes a condition precedent to the Institution of the
prosecution and the Government has an absolute
discretion to grant or withhold their sanction. They are
not, as the High Court seem to have thought, concerned
merely to see that the evidence discloses a prima facie
case against the person sought to be prosecuted. They
can refuse sanction on any ground which commends
itself to them, for example, that on political or economic
grounds they regard a prosecution as inexpedient.”
176. In the case of Bhagwan Mahadeo Sathe Versus
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State and Another, 2010 SCC OnLine Bom 2350,
it was held that:-
“12. In the present case, the record indicates that the
draft sanction letter was forwarded to the sanctioning
authority along with the other papers. The actual
sanction which is granted is verbatim reproduction of the
draft sanction. This also clearly discloses that there was
a non-application of mind while granting sanction to
prosecute. Under all these circumstances, in my view,
the prosecution has failed to establish its case beyond
reasonable doubt. The judgment and order passed by the
Sessions Court is set aside and the Appellant is acquitted
for the offences of which he is charged. The Appellant is
on bail. His bail bond shall stand cancelled. Appeal is,
accordingly, allowed and disposed of.”
177. In the case of CBI v. Ashok Kumar Aggarwal, Crl.
Appeal No. 1838/2013 date of decision
22.11.2013. it was held that:
13. The prosecution has to satisfy the court that at the
time of sending the matter for grant of sanction by the
competent authority, adequate material for such grant
was made available to the said authority. This may also
be evident from the sanction order, in case it is
extremely comprehensive, as all the facts and
circumstances of the case may be spelt out in the
sanction order. However, In every Individual case, the
court has to find out whether there has been an
application of mind on the part of the sanctioning
authority concerned on the material placed before it. It is
so necessary for the reason that there is an obligation on
the sanctioning authority to discharge its duty to give or
withhold sanction only after having full knowledge of
the material facts of the case. Grant of sanction is not a
mere formality. Therefore, the provisions in regard to
the sanction must be observed with complete strictness
keeping in mind the public interest and the protection
available to the accused against whom the sanction is
sought. 14. It is to be kept in mind that sanction lifts the
bar for prosecution. Therefore, it is not an acrimonious
exercise but a solemn and sacrosanct act which affords
protection to the government servant against frivolous
prosecution. Further, it is a weapon to discourage
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vexatious prosecution and is a safeguard for the
innocent, though not a shield for the guilty.
15. Consideration of the material implies application of
mind. Therefore, the order of sanction must ex facie
disclose that the sanctioning authority had considered
the evidence and other material placed before it. In every
individual case, the prosecution has to establish and
satisfy the court by leading evidence that those facts
were placed before the sanctioning authority and the
authority had applied its mind on the same. If the
sanction order on its face indicates that all relevant
material i.e. FIR, disclosure statements, recovery
memos, draft charge-sheet and other materials on record
were placed before the sanctioning authority and if it is
further discernible from the recital of the sanction order
that the sanctioning authority perused all the material, an
inference may be drawn that the sanction had been
granted in accordance with law. This becomes necessary
in case the court is to examine the validity of the order
of sanction inter alia on the ground that the order suffers
from the vice of total non- application of mind.
16. In view of the above, the legal propositions can be
summarised as under:
16.1. The prosecution must send the entire relevant
record to the sanctioning authority including the FIR,
disclosure statements, statements of witnesses, recovery
memos, draft charge-sheet and all other relevant
material. The record so sent should also contain the
material/document, if any, which may tilt the balance in
favour of the accused and on the basis of which, the
competent authority may refuse sanction.
16.2. The authority itself has to do complete and
conscious scrutiny of the whole record so produced by
the prosecution independently applying its mind and
taking into consideration all the relevant facts before
grant of sanction while discharging its duty to give or
withhold the sanction.
16.3. The power to grant sanction is to be exercised
strictly keeping in mind the public interest and the
protection available to the accused against whom the
sanction is sought.
16.4. The order of sanction should make it evident that
the authority had been aware of all relevant
facts/materials and had applied its mind to all the
relevant material.
16.5. In every individual case, the prosecution has to
establish and satisfy the court by leading evidence that
the entire relevant facts had been placed before the
sanctioning authority and the authority had applied itsCBI Vs Markandey Mishra & Ors 75/131
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mind on the same and that the sanction had been granted
in accordance with law.”
178. In the case of the State of T.N. v. M.M. Rajendran,
(1998) 9 SCC 268, Hon’ble Supreme Court dealt
with a case under the provisions of the 1988 Act,
wherein the prosecuting agency had submitted a
very detailed report before the sanctioning
authority and on consideration of the same, the
competent authority had accorded the sanction.
Hon’ble Supreme Court found that though the
report was a detailed one, however, such report
could not be held to be the complete records
required to be considered for sanction on
application of mind to the relevant material on
record and thereby quashed the sanction.
179. Having considered the totality of the facts of the
present case, the law and evidence as brought on
record. Now let us discuss the case hereinafter.
Finding qua accused Markandey Mishra .
180. The allegations against accused Markandey
Mishra, are that he in furtherance of the criminal
conspiracy with co-accused persons, being
dealing Assistant in the office of RCS, Delhi, was
directed by Smt. Shakuntala Joshi AR(N) to
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conduct the verification of the documents of said
society. He by abusing his official position as a
public servant in the capacity of dealing clerk,
fraudulently and dishonestly with an ulterior
motive did not verify resignations/enrollments of
some of the members from the original records of
the society available with him. He submitted a
false report dated 22.10.2002, relating to
verification of records of society to accused
Shakuntala Joshi in which he had recommended
the cancellation of the winding up order of the
society.
181. To prove its case against accused Markandey
Mishra the prosecution has totally relied upon the
document D-13 as adduced on record through Ex
PW5/A ( Colly). As per allegations, vide D-13 he
has made office notings on the file of said society
in conspiracy with other co-accused persons. The
question arises whether prosecution has proved the
signatures/initial of accused on file notings vide
D-13 ( Ex PW5/A colly ) The prosecution has not
brought on record the fact that accused Markandey
Mishra has dealt with file notings D-13 ( Ex
PW5/A Colly). The prosecution has relied upon
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the testimony of PW 5 to connect accused
Markandey Mishra with the complicity of present
case qua his notings and his indulgence in
conspiracy. But PW5 has deposed in his
examination in chief that he has not worked with
accused Markandey Mishra. The prosecution has
not got identified the signatures of accused
Markandey Mishra on D-13 ( Ex PW5/A colly)
through any witness. Even the prosecution has not
brought on record any evidence that accused
Markandey Mishra was posted in the office of
RCS at relevant time when notings on the file of
the said society was allegedly made. No witness
has deposed these facts on record. The prosecution
has failed to discharge its duty to bring on record
the fact that accused Markandey Mishra has dealt
with D-13 ( Ex PW5/A colly). On the other hand,
accused Markandey Mishra in his statement
recorded U/S 313 Cr P C has categorically denied
to deal with D-13 ( Ex PW5/A colly). He has
denied his signatures on D-13 ( Ex PW5/A colly).
On perusal of signature of accused Markandey
Mishra as appended on charge and statement
recorded U/S 313 Cr P C, it seems that his
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signature are different from signatures/initial from
D-13 ( Ex PW5/A colly). The prosecution has not
proved the minimum required condition that
signatures on D-13 ( Ex PW5/A Colly) were
appended by accused Markandey Mishra. It was
required to be proved on record. In the absence of
any evidence connecting the accused Markandey
Mishra with document D-13 ( Ex PW5/A colly),
he cannot be connected with offence charge
against him.
182. Moreover, to prosecute accused Markandey
Mishra for the offences under Prevention of
Corruption Act, sanction U/S 19 of P.C Act is
essential. In order to prove the sanction for
prosecution against accused Markandey Mishra.
The prosecution has examined PW 1 Sh C.M.
Sharma. He has deposed that he has received a
request for sanction from CBI in respect of
accused Markandey Mishra. He has deposed that
he had perused all relevant documents received
from CBI including statement of the witnesses and
report of IO to form his opinion for giving
sanction for prosecution of accused Markandey
Mishra.
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183. However, PW 1 in the cross examination has
deposed as to how he has accorded sanction
against accused Markandey Mishra. The relevant
portion of his cross examination is as follows:
“The request for grant of sanction aforesaid was
received from CBI directly in my office. No office note
was written by my staff while putting up the request of
CBI to me for grant of sanction in this case. I cannot say
the said file contained how many pages…… Draft
chargesheet of the case was also not received from CBI.
I did not discuss the case with the IO before granting the
sanction. I did not take any legal opinion for forming my
opinion…….I had not sought any comments or
clarifications from the office of RCS before granting the
sanction. It is correct that sanction order Ex. PWI/A does
not contain any reference to the nature of documents and
the details of the witnesses whose statement I had
perused. …It is correct that I have not been shown the
said file today in court also. It is wrong to suggest that
the said file has not been shown to me as the file would
reflect non-application of mind on my part”
184. On perusal, the witness is unable to disclose
clearly the material which he has perused before
granting sanction for prosecution against accused
Markandey Mishra. On perusal of documents Ex
DW1/A ( Colly). It reveals that list of documents
alongwith gist in the form of calander of evidence
documentary were sent only. The complete set of
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documents were not sent to the sanctioning
authority. Similarly gist of oral evidence was sent
and statement of witness being recorded were not
sent. It shows that complete evidence were not sent
to the sanctioning authority for its perusal. So the
testimony of PW 1 is dubious regarding perusing
the material /evidence by him before according
sanction. So in view of the law as discussed in the
preceding paragraph coupled with the testimonies
of PW1 and DW.1 the prosecution has failed to
prove the sanction order against accused
Markandey Mishra being accorded by applying
mind by the sanctioning authority.
Finding qua accused Shakuntla Joshi
185. The allegations against accused Shakuntla Joshi
are that while she was working as AR(N) in the
office of R.C.S Delhi. She has abused her official
position as a public servant. She has fraudulently
and dishonestly, forwarded the report directly to
Narayan Diwakar the then RCS, Delhi without
verifying the records submitted by the society with
those available in her office. She has bypassed the
normal channel of Dy. Registrar and Joint
Registrar of the office of RCS while she
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recommended the case of the society for revival.
186. On perusal of record, it reveals that the prosecution
has not examined any witness from the office of
RCS, Delhi who can depose a fact that Shakuntla
Joshi was posted in RCS Office at the relevant
time when file notings vide D-13 and D-15 were
prepared and she has appended her signatures on it.
To prove its case against accused Shakuntla Joshi,
the prosecution has solely relied upon the
testimony of PW 5 to connect her with the
complicity of present case and her indulgence in
conspiracy. But PW5 has deposed in his
examination in chief that he has not worked with
accused Shakuntla Joshi. Accused Shakuntla Joshi
has denied her signatures being appended by her
on the document D-13 and D-15 ( Ex PW5A
colly). Even in her statement recorded U/S 313 Cr
P C she has categorically denied that she has dealt
with this file and denied her signatures on these
documents D-13 and D-15 ( Ex PW5A colly). The
prosecution must have called any person who
could have proved a fact that accused Shakuntla
Joshi has dealt with the file of the said society and
appended her signatures on it. The prosecution has
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not proved the minimum required fact which has to
be proved on record. In the absence of any
evidence connecting the accused Shakuntla Joshi
with document D-13 and D-15 ( Ex PW5/A colly),
she cannot be connected with offence charge
against her. Even otherwise, the prosecution has
unable to brought into the notice of this Court
whether accused Shakuntla Joshi could not have
sent the file directly to the Court of Registrar of Co
operative Societies. The prosecution has unable to
brought any evidence on record which shows that
accused Shakuntala Joshi has obtained any
monetary gain in the revival of the said society.
There is no evidence which shows that forged
signatures were appended on the document by any
person in her presence. The evidence are short to
hold her guilty for the offences charged with.
187. Moreover, to prosecute accused Shakuntla Joshi,
for the offences under Prevention of Corruption
Act, sanction U/S 19 of P.C Act is essential. To
prove sanction for prosecution against accused
Shakuntla Joshi, the prosecution has examined PW
2 Sh Ashutosh Kumar. He has deposed that he had
received a request for issuing sanction to prosecute
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accused Shakuntla Joshi. He has deposed that he
had processed the file as the competent authority
was the Lt Governor of Delhi, who had authorized
to him to authenticate his ( Hon’ble Lt Governor)
orders. He has deposed that whole file alongwith
all the documents received, and was sent to the
office of Lt Governor where it was scrutinized at
various levels. He has deposed that after due
application of mind, when it came back with
orders, he issued sanction order Ex PW2/A on
behalf and in the name of the Lt Governor.
188. PW2 in his cross examination has deposed as to
how the sanction for prosecution against accused
Shakuntla Joshi was accorded. The relevant
portion of his cross examination is as follows:
” I do not remember all the documents that were received with the file.
The FIR was there and there were other related documents. ……… I
did not prepare the sanction order myself. However, it was done in the
normal process followed by the department where the draft is put up
which is then vetted and finalized. I think the draft sanction order was
prepared at the level of the UDC. I do not remember clearly which
documents were sent by me with the draft sanction order to the office
of the LG but all documents which substantiated the case were sent.
189. On perusal of the statement of PW 2. This witness
has unable to disclose clearly the material which
he has sent to the sanctioning authority for its
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perusal before granting sanction for prosecution
against accused Shakuntla Joshi.
190. On perusal of Sanction file Ex DW2/A ( Colly). It
reveals that the file/record which was sent to office
of Lt Governor contains only S.P report in brief
containing only allegation, result of investigation
and Calandar of evidence (Documentary),
Calandar of evidence (Oral) and draft sanction
order, for obtaining sanction for prosecution of
accused Shakuntla Joshi. The complete set of
documents were not sent to the sanctioning
authority. Similarly gist of oral evidence was sent
only and statement of witnesses being recorded in
complete were not sent. It shows that complete
evidence were not sent to the sanctioning authority
for its perusal. So the testimony of PW 2 is
dubious regarding perusing the material /evidence
by the sanctioning authority before according
sanction. So in view of the law of sanction, as
discussed in the preceding paragraphs coupled
with the testimonies of PW2 and DW.2, the
prosecution has failed to prove the sanction order
against accused Shakuntla Joshi being accorded by
applying the mind by the sanctioning authority.
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Finding qua accused Narayan Diwakar.
191. The allegations against accused Narayan Diwakar
are that in furtherance of criminal conspiracy with
other co-accused persons in the capacity of RCS
Delhi, he dishonestly issued revival order dt.
01.11.2002. The said order was passed on the basis
of slew of forged documents submitted by Sh.
Ashutosh Pant which had been forged by Ashwani
Sharma, and Naveen Kaushik. There are
allegations that accused Ashutosh Pant
impersonated himself as Anand Ballabh, who was
non-existent entity within the full knowledge of
Narayan Diwakar, in the proceedings presided by
Narayan Diwakar on 24.10.2002, in which the
request of the society was heard by Sh. Narayan
Diwakar.
192. Ld Counsel for accused Narayan Diwakar has
vehemently argued that, firstly there is no sanction
for prosecution U/S 197 Cr P.C against accused
Narayan Diwakar and consequent upon that the
accused cannot be prosecuted for the offence
Under section 120 B r/w 420/468/471 IPC.
193. It is further argued by Ld Counsel for accused
Narayan Diwakar that sanction for the offences
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charged against accused under Prevention of
Corruption Act have also not been taken by the
prosecuting agency. It is submitted that the
amendment has been made in Section 19 of
Prevention of Corruption Act in the year 2018. By
amendment sanction for prosecution has been
made necessary for retired public servant also. And
no Court can take cognizance against a public
servant for the offences under Prevention of
Corruption Act without sanction. It is vehemently
argued that this amendment should be considered
retrospective. In this way sanction was necessary
against accused Narayan Diwakar to prosecute him
for the offence under Prevention of Corruption
Act.
194. On the other hand, Ld Senior PP for CBI has
argued that the prosecution has successfully
proved the allegations against the Narayan
Diwakar by leading cogent evidence.
195. It is further argued by the Ld Senior PP for CBI
that since the act done by accused Narayan
Diwakar was not a part of his official duty rather
he was indulged in conspiracy with other public
servants and private persons who have been
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charged in the present case. In that way no
sanction is required against accused Narayan
Diwakar U/S 197 of Cr.P.C.
196. It is further argued that since the accused Narayan
Diwakar has retired from his services prior to
amendment of Section 19 of P.C Act. Hence no
sanction is required for prosecution of him for the
offence under Prevention of Corruption Act. If it
could have been the intention of the legislature
then this could have been mentioned in the
amendment itself that this provision is applicable
with retrospective. It is submitted that section is
clear and no sanction U/S 19 of P.C Act is required
in case of accused Narayan Diwakar.
197. After considering the arguments of Ld Counsel for
the Narayan Diwakar and Ld Senior PP for CBI.
As Narayan Diwakar has been charged for the
offence Under section 120 B r/w 419/420/468/471
IPC and Sec. 13(2) r/w 13 (1) (d) of PC Act,1988
and substantive offences u/s 13(1)(d) punishable
u/s13 (2) of Prevention of Corruption Act 1988.
198. On perusal, it is admitted position of the
prosecution that there is no sanction being obtained
U/S 197 of Cr.P.C to prosecute accused Narayan
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Diwakar and same is also not there on record.
199. Before adverting to the facts of the case and
whether sanction U/S 197 Cr P C is required or
not, I would like to reproduce Section 197 Cr.
P.C. Section 197 of the Cr.PC reads as under:
“197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or
Magistrate or a public servant not removable from his
office save by or with the sanction of the Government 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, no Court shall take cognizance of
such offence except with the previous sanction save as
otherwise provided in the Lokpal and Lokayuktas Act,
2013 (1 of 2014)–
(a) in the case of a person who is employed or, as the
case may be, was at the time of commission of the
alleged offence employed, in connection with the affairs
of the Union, of the Central Government;
(b) in the case of a person who is employed or, as
the case may be, was at the time of commission of the
alleged offence employed, in connection with the affairs
of a State, of the State Government: Provided that where
the alleged offence was committed by a person referred
to in clause (b) during the period while a Proclamation
issued under clause (1) of article 356 of the Constitution
was in force in a State, clause (b) will apply as if for the
expression “State Government” occurring therein, the
expression “Central Government” were substituted.
Explanation.–For the removal of doubts it is hereby
declared that no sanction shall be required in case of a
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public servant accused of any offence alleged to have
been committed under section 166A, section 166B,
section 354, section 354A, section 354B, section 354C,
section 354D, section 370, section 375, section 376A,
section 376AB, section 376C, section 376D, section
376DA, section 376DB or section 509 of the Penal
Code, 1860.
(2) No Court shall take cognizance of any offence
alleged to have been committed by any member of the
Armed Forces of the Union while acting or purporting to
act in the discharge of his official duty, except with the
previous sanction of the Central Government.
(3) The State Government may, by notification, direct
that the provisions of sub-section (2) shall apply to such
class or category of the members of the Forces charged
with the maintenance of public order as may be specified
therein, wherever they may be serving, and thereupon
the provisions of that sub-section will apply as if for the
expression “Central Government” occurring
therein,the expression “State Government” were
substituted.
(3A) Notwithstanding anything contained in sub- section
(3), no court shall take cognizance of any offence,
alleged to have been committed by any member of the
Forces charged with the maintenance of public order in a
State while acting or purporting to act in the discharge of
his official duty during the period while a Proclamation
issued under clause (1) of article 356 of the Constitution
was in force therein, except with the previous sanction
of the Central Government.
(3B) Notwithstanding anything to the contrary contained
in this Code or any other law, it is hereby declared that
any sanction accorded by the State Government or any
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cognizance taken by a court upon such sanction, during
the period commencing on the 20th day of August, 1991
and ending with the date immediately preceding the date
on which the Code of Criminal Procedure (Amendment)
Act, 1991 (43 of 1991), receives the assent of the
President, with respect to an offence alleged to have
been committed during the period while a Proclamation
issued under clause (1) of article 356 of the Constitution
was in force in the State, shall be invalid and it shall be
competent for the Central Government in such matter to
accord sanction and for the court to take cognizance
thereon.
(4) The Central Government or the State Government, as
the case may be, may determine the person by whom,
the manner in which, and the offence or offences for
which, the prosecution of such Judge, Magistrate or
public servant is to be conducted, and may specify the
Court before which the trial is to be held.”
200. On perusal of Section 197 of the Cr PC, it provides
that when any person who is or was a public servant,
not removable from his office save by or with the
sanction of the Central Government or State
Government is accused of any offence alleged to
have been committed by him while acting or
purporting to act in the discharge of his official
duties, no Court shall take cognizance of such
offence, except with the previous sanction of the
appropriate Government. The law pertaining to the
grant of sanction under Section 197 is no longer res
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integra. The essential requirements of Section 197
Cr. P.C. is that an accused should be alleged of
having committed an offence while acting or
purporting to act in discharge of his official duty.
There must be a reasonable connection between the
act and the discharge of official duty. The act must
bear such relation to the duty that the accused could
lay a reasonable, but not a pretended or fanciful
claim, that he did it in the course of the performance
of his duty.
201. The Hon’ble Supreme Court Rakesh Bhatnagar Vs
Central Bureau of Investigation , 2023 SCC OnLine
Del 7440 has held that :-
“62. According to the ratio laid down in A. Srinivasa
Reddy (supra), the individual against whom the
allegations are made, ought to be a ‘Public Servant’
whose appointing authority is the Central Government or
the State Government to entitle him to the protection
under section 197 Cr.P.C. and not to every public
servant. In the present case, undoubtedly, the petitioner
is a DANICS officer and his appointing authority is the
Central/State Government. There is equally no doubt in
the mind of this Court that the allegations against the
petitioner are of offences in the discharge of his official
duties and as such the rigors of N.K Ganguly (supra)
shall apply on all fours and it would be imperative for
the prosecution to have obtained the sanction under
section 197 Cr. P.C. As such, it is apparent that theCBI Vs Markandey Mishra & Ors 92/131
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prosecution of the petitioner for the aforesaid offences in
the absence of the appropriate sanction under section
197 Cr.P.C. would be untenable.
63. Mr. Goel did not dispute the fact that there is no
sanction under section 197 Cr. P.C. obtained from the
Competent Authority against the petitioner. Having
regard to the said admission, and also considering the
ratio laid down by the aforesaid authoritative judgments
of the Supreme Court, this Court quashes the charges
framed against the petitioner under sections 420, 468
and 471 read with 120B IPC.”
202. In the case of A. Sreenivasa Reddy v. Rakesh
Sharma, (2023) 8 SCC 711 , it was held by
Hon’ble Supreme Court that:-
“41. Sub-section (1) of Section 197CrPC shows that
sanction for prosecution is required where any person
who is or was a Judge or Magistrate or a public servant
not removable from his office save by or with the
sanction of the Government is accused of any offence
alleged to have been committed by him while acting or
purporting to act in discharge of his official duty. Article
311 of the Constitution lays down that no person, who is
a member of a civil service of the Union or State or
holds a civil post under the Union or State, shall be
removed by an authority subordinate to that by which he
was appointed. It, therefore, follows that protection of
sub-section (1) of Section 197CrPC is available only to
such public servants whose appointing authority is the
Central Government or the State Government and not to
every public servant.
59. From the aforesaid, it can be said that there can be
no thumb rule that in a prosecution before the court ofCBI Vs Markandey Mishra & Ors 93/131
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Special Judge, the previous sanction under Section 19 of
the PC Act, 1988 would invariably be the only pre-
requisite. If the offences on the charge of which, the
public servant is expected to be put on trial include the
offences other than those punishable under the PC Act,
1988 that is to say under the general law (i.e. IPC), the
court is bound to examine, at the time of cognizance and
also, if necessary, at subsequent stages (as the case
progresses) as to whether there is a necessity of sanction
under Section 197 of the CrPC. There is a material
difference between the statutory requirements of Section
19 of the PC Act, 1988 on one hand, and Section 197 of
the CrPC, on the other. In the prosecution for the
offences exclusively under the PC Act, 1988, sanction is
mandatory qua the public servant. In cases under the
general penal law against the public servant, the
necessity (or otherwise) of sanction under Section 197 of
the CrPC depends on the factual aspects. The test in the
latter case is of the “nexus” between the act of
commission or omission and the official duty of the
public servant. To commit an offence punishable under
law can never be a part of the official duty of a public
servant. It is too simplistic an approach to adopt and to
reject the necessity of sanction under Section 197 of the
Cr PC on such reasoning. The “safe and sure test”, is to
ascertain if the omission or neglect to commit the act
complained of would have made the public servant
answerable for the charge of dereliction of his official
duty. He may have acted “in excess of his duty”, but if
there is a “reasonable connection” between the
impugned act and the performance of the official duty,
the protective umbrella of Section 197 of the CrPC
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duty is not used as a cloak for illicit acts.”
203. On perusal of above referred judgments of Hon’ble
Superior Courts, it is clear that to commit an
offence punishable under law can never be a part
of the official duty of a public servant. It is too
simplistic an approach to adopt and to reject the
necessity of sanction under Section 197 of the Cr
PC on such reasoning. The safe and sure test is to
ascertain if the omission or neglect to commit the
act complained of would have made the public
servant answerable for the charge of dereliction of
his official duty. Then it may fall within his/her
official duty in that circumstances, obtaining of
Sanction U/S 197 Cr P C is necessary.
204. Here in the present case, the allegations against
accused Narayan Diwakar are that he had revived
the said society on the basis of forged documents.
The act of revival of the said society is official
duty and if he could have not done act to revive the
said Society then it could have been considered as
dereliction of his official duty.
205. The fact whether he was indulge in conspiracy is a
matter of appreciation of evidence on record,
which has to be considered by the Court on the
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basis of material being produced before Court.
206. Admittedly accused Narayan Diwakar was an
I.A.S and his appointing authority was either
Central Government or State Government,
therefore, the protection as available U/S 197 Cr P
C is to be granted to him for the prosecution U/S
Under section 120 B r/w 419/420/468/471 IPC,
which is not there on record.
207. So far as allegations of conspiracy against accused
Narayan Diwakar with co-accused in reviving of
the said society is concerned. There is no direct
evidence being brought on record by the
investigating agency. There is also no evidence
that he was hand in glove with any of the accused
persons. There is no evidence at all that he has got
any monetary benefit from any of the co-accused
in the process of revival of the said society. The
alleged proceedings qua completion of formalities
for revival of the society could have been
completed at various stages subsequently. But
there is no evidence on record qua mens rea on the
part of accused Narayan Diwakar. The revival
may be wrong decision or it may be over looking
of some facts or due to negligence. But in the
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absence of mens rea and in the absence of gaining
any monetary benefit it may be difficult to hold
him guilty for the offences charges against him.
For the sake of argument, if some persons had
appeared before accused Narayan Diwakar as
Anand Ballabh as Secretary of Management
Committee of said society and he had marked his
attendance as functionary of the society. It is not
sufficient to hold accused Narayan Diwakar as
guilty of conspiracy. It may be negligence, but it
does not qualify the principle of criminal
jurisprudence that charge have been proved
beyond reasonable doubt. There is no evidence on
record that accused Narayan Diwakar was
knowing the actual functionaries of said society or
the persons appeared before him were known to
him. Then how it can be said that he had hatched
conspiracy with other accused persons. So the
prosecution has failed to prove charges against
accused Narayan Diwakar for offences charged
with.
Finding qua accused Vishwanath Aggarwal .
208. The allegations against accused Vishwanath
Aggarwal are that he in furtherance of criminal
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conspiracy with other co-accused persons, during
the period from 1982 to 2003 submitted slew of
forged records, of the said society. And he
alongwith other accused persons got fraudulently
revived the said society on 01.11.2002. And also
a freeze list was sent to DDA for 90 members on
8.11.2002 for allotment of land at cheaper rates.
There are also allegations that since revival of the
said society. The said society has been controlled
by accused Vishwanath Agarwal alongwith other
private accused persons, Mohit Saxena, Ashok
Kumar Choudhary, and Sandeep Sahini. The
charge is also against accused Vishwanath
Aggarwal that he alongwith co-accused have
forged the signatures on the proceeding of
Management Committee meeting dated 25.11.2002
and 02.02.2003. He was also controlling the affairs
of the said society since 05.03.2003. He
alongwith other co-accused persons have also
enrolled new members after accepting forged
resignations of some of the old members but
dishonestly lodge the FIR for stolen of old record
of the said society.
209. It is argued by Ld Counsel for accused
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Vishwanath Aggarwal that the allegations against
him are that resignation of members from S-1 to
S-104 are not available with the society as prior to
registration of the case, accused Viswanath
Aggarwal had lodged a false report with P.S
Daabri, Palam mentioning therein that these
documents alongwith other records are stolen
which resulted into registration of FIR No. 57/05,
P.S Dabri, Palam Delhi. But the said FIR is not
part of the chargesheet and hence this fact cannot
be read against accused Vishwanath Aggarwal.
210. It is argued by Ld Counsel for accused Vishwanath
Aggarwal that accused has provided and handed
over all the relevant documents of this case to the
Investigation agency. It is submitted that in D-3,
Receipt Memo, particular of documents show
accused Vishwanath Aggarwal has handed over
the elaborated list of the documents to the
investigating agency. But it reveals that complete
file has not been placed on record by the
investigating officer which shows casual manner
of investigation by the investigating officer.
211. It is argued on behalf of accused Vishwanath
Aggarwal that there is a lapse on the part of the
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investigation agency with regard to the documents.
As accused Vishwanath Aggarwal has provided
the documents which were sought from him
despite the fact that no notice u/s 91 of CrPC was
served upon accused Vishwanath Aggarwal by the
investigating agency. The investigating officer
would have served notice to the accused in case the
investigating officer had more queries or
requirement of more documents. It is further
argued that casualness of IO in investigating the
case also reveals that IO has mentioned different
case/Registration number on D-3 and D-4.
212. It is further argued that whole case of the
prosecution is based upon the testimony of PW-6
Pawan Khosla but investigating agency has not
taken his specimen signatures to get opinion with
the document and proceeding conducted by him
where he has been shown as functionary of the said
society.
213. It is further argued by the Ld Counsel for accused
Vishwanath Aggarwal that the IO has not made
any person as witness from those who had attended
the M.C meeting dated 25.07.2002 and
30.10.2002 vide which discussion taken place
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regarding revival of the said society.
214. It is submitted that R.N. Pandey and Vijay Rawat
have not been examined as they have participated
in the meeting of management committee dated
04.02.2003 and 05.03.2003. It is further submitted
that accused Vishwanath Aggarwal was elected as
President in the meeting dated 05.03.2003, Radhey
Shyam as Treasurer of the society and Savita was
also elected member of Managing Committee but
they have not been made either as accused or
witness, by the IO.
215. It is further submitted that some of the person like
Abdul Malik S/o Sh. Nirajudin have been shown
to be present in the meeting dated 15.04.2003
during the tenure of accused Vishwanath
Aggarwal. Similarly there are two Gulzar Ahmed
one is PW 9. But the prosecution shows the wrong
affidavit of another Gulzar Ahmed to PW9 in his
examination.
216. It is further argued by the Ld Counsel for accused
Vishwanath Aggarwal that the specimen signatures
of accused places as S-284 to S-288 are doubtful as
he was in custody at the relevant time, when
alleged specimen signatures were taken. It is
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submitted that accused has not taken any monetary
benefit from said society and whatever money was
deposited by the members of the society the same
were used for the construction of the flats of the
said society. And in that way testimony of PW8,
PW10, PW11 and PW12 were not helpful to the
prosecution. The other witness as has been shown
as member of the society were not denied their
membership, being false. It is submitted that
accused Vishwanath Aggarwal has not committed
any offence.
217. On the other hand, it is argued by the Ld Senior PP
for CBI that accused Vishwanath Aggarwal and
S.P. Saxena (proceedings already stands abated)
were the main conspirator who have got forged the
documents and got revived the said society. It is
further argued that prosecution has proved its case
to the extent that accused Vishwanath Aggarwal
with other accused persons were involved in the
conspiracy for revival of the said society and
subsequently committed forgery in proceeding of
the said society. They have cheated the DDA.
218. Having considered the arguments and rival
contention being raised by the parties. One fact
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which is proved on record beyond reasonable
doubt is that the document Ex PW5/A ( Colly)
which was seized by the officer conducting
preliminary inquiry, was handed over by accused
Vishwanath Aggarwal to the IO vide Mark 15/C
(D-3).
219. On perusal of document Ex PW6/B (D-12) which
is a part of file Ex PW5/A ( Colly), it reveals that
this application dated 04.09.2002, vide which a
request was made to the office of RCS,Delhi for
revival of the said society, was made by one
Pawan Khosla (PW6). But PW6 Pawan Khosla has
stated that he had not made or filed this application
before R.C.S Office for revival of the said Society.
The fact is proved that the application for revival
of the said society bears the signatures of Pawan
Khosla which was not actually signed by Pawan
Khosla (PW6), who was never became member of
the said society.
220. The argument of Ld Counsel for accused
Vishwanath Aggarwal that specimen signatures of
PW6 were not obtained by the investigating officer
for getting matching of his signatures on the
document Ex PW6/B is not sustainable. PW6
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Pawan Khosla has deposed in the Court. His
testimony falls in the category of direct evidence.
PW6, being witness, has not identified his
signatures in the Court on document Ex PW6/B.
So his testimony cannot be discarded. If accused
Vishwanath Aggarwal could had disputed that
Pawan Khosla is deposing falsely qua his
testimony and denying his signatures being put by
him ( PW 6) on Ex PW6/B. He could have get
rebut that testimony, but same has not been
done/rebutted. Merely saying that specimen of
PW6 were not got matched with Ex PW6/B is not
sufficient.
221. One most incriminating fact against accused
Vishawanath Aggarwal is that as it is admitted
position that he has handed over the documents to
the IO vide document mark PW15/C (D-3). These
documents are exhibited as Ex PW5/A ( Colly). On
perusal of Ex PW5/A ( Colly) it reveals that this
document contains original record of RCS office.
This fact has also proved by PW 5 while he has
deposed that this record pertains to R.C.S office. It
is the accused Vishawanath Aggarwal to clarify the
fact as to how this record of RCS came into his
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possession. Because this fact has to be disclosed by
accused Vishwanath Aggarwal himself U/S 106 of
Indian Evidence Act. The involvement of accused
Vishwanath Aggarwal in forging the documents
and proceeding of said society proved through this
sole circumstance, as the RCS office record could
not have been in his possession.
222. The another incriminating evidence against
accused Vishawanth Aggarwal is the proceedings
exhibited as Ex PW6/J (D-22), the proceedings
dated 25.11.2002. Vide this proceedings accused
Vishawanath Aggarwal had became the member of
the said society. Undoubtedly, a person can
become the member of any society by filing
application or forms to the Management
Committee of the society. Accused Vishwanath
Aggarwal could have also made said applications
or forms for becoming member of the said society
to its Management Committee. In that proceedings
Pawan Khosla has been shown as a President. The
witness PW6 has deposed that he never became
member of the said society. PW6 has categorically
deposed that he has not moved application Ex
PW6/B. PW13 has also proved the fact that all the
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proceedings which were recorded by him were on
the dictation of S.P. Saxena.(proceedings already
stands abated) The PW 13 had never participated
in the proceeding/meetings of the said society. It
means that accused Vishwanath Aggarwal was
making application for becoming member of the
society to a person who was not functionary of the
said society. It clear proves the complicity of
accused Vishwanath Aggarwal in commission of
offence as alleged against him in conspiracy with
accused S.P. Saxena.(proceedings already stands
abated).
223. Even otherwise, on perusal Ex PW6/F, Ex
PW6/G, PW6/H, Ex PW6/I, Ex PW6/J,Ex
PW6/K,Ex PW6/L ,Ex PW6/M and Ex PW13/C
(D-22), it reveals that Pawan Khosla was remained
President of the society. These proceedings are
continued being falsely written by PW 13 on the
instruction of S.P. Saxena. (proceedings already
stands abated) The Ex PW13/C, the meeting of
GBM dated 04.02.2003, shows that agenda was
fixed for election of new Management Committee
of the said society. The date of election was fixed
as 05.03.2003 and on that date accused
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Vishwanath Aggarwal was elected as President of
the said society. But these all false proceedings
were written by PW 13 which were got written on
the dictation of accused S.P. Saxena. (proceedings
already stands abated). The document Ex PW6/C (
Audit report ) also find mentioned signature of
Pawan Khosla but he denied to put his signatures
on this document. The accused Vishwanath
Aggarwal has became member of the said society
within one month of revival of said society ( Ex
PW6/J). Though these proceedings were false
proceedings. All these facts shows that accused
Vishawanath Aggarwal was hand in glove with
accused S.P. Saxena (proceedings already stands
abated) by forging the signatures of Pawan Khosla.
All these proceedings contained in document D-22
exhibited (PW5/A colly) which are proved by PW6
and PW13 shows that accused Vishwanath
Aggarwal was indulged in conspiracy in reviving
of the said society on the basis of forged
document alongwith accused S.P Saxena
(proceedings already stands abated), Vide
proceedings dated 25.07.2002, decision was taken
for revival of the said society.
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224. The fact is also proved on record in the given
circumstances and evidence brought on record, that
land to the said society could not have been
allotted if that society could not have been revived.
It is admitted position that DDA was allotting the
land to the society on the basis of their date of
registration on priority basis i.e on seniority basis.
225. The argument of Ld Counsel for accused
Vishwanath Aggarwal that some of the office
bearers of the Management Committee were not
made either witness or accused; or argument that
investigation was not conducted fairly by the
investigating agency is not sustainable. While
dealing with the allegations against accused
Vishwanath Aggarwal this Court has to consider
the evidence which has been brought on record.
And whether these evidence are sufficient or not,
to give findings about the complicity of accused
Vishwanath Aggarwal for commission of offence.
226. So far as the argument of Ld Counsel for accused
Vishwanath Aggarwal that prosecution has not
placed on record the copy of FIR bearing No.57/05
being registered as PS Dabri, Palam Delhi qua
theft of some original record of the said society. In
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this regard a fact has been brought on record by
PW14 in his cross examination, being conducted
by Sr PP for CBI that accused Vishwanath
Aggarwal had told him that documents pertaining
to present society were stolen by someone. This
admission by accused Vishwanath Aggarwal does
not fall within the ambit of confession to PW 14.
Rather it proves the fact that accused Vishwanth
Aggarwal has disclosed this fact to PW14. In his
statement ( recorded U/S 313 Cr P C) accused
Vishwanath Aggarwal stated that he do not
remember the conversation he had with PW14 qua
this fact. It means that he has not specifically
denied the fact that he has not disclose the same to
PW 14. While on the other hand, PW14 deposed in
Court that fact of stolen of record of the said
society was told to him by accused Vishwanath
Aggarwal. This fact is admissible against accused
Vishwanath Aggarwal. It seems that accused
Vishwanth Aggarwal may have lodged that FIR to
conceal the facts from the Investigating agency qua
forgery in the documents. This observation also
got strength from D-22, as pages of register prior
to proceeding dated 23.06.2002 are being removed
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from the register ( D-22).
227. Though Accused Vishwanath Aggarwal has
examined two witnesses in his defence DW 4
Ramasray Singh and DW5 Shri Ram. DW 4
placed on record a newspaper namely Veer Arjun
dated 27.10.2010 while DW 5 placed on record a
copy of Newspaper The Statesman dated
27.12.2010. The purpose of accused Vishwanath
Aggarwal to examined these two Dws are that the
said society has published a public notice in the
newspaper to clarify the names of the members
who has already resigned and induction of new
members. The objection was called from the public
at large to file their objections to the publication,
if they have any objection. The document is not
helpful to accused Vishwanath Aggarwal as
alleged forgery was completed prior to publication
of public notice. Even it reveals that the public
notice was published to cover up the FIR being
registered against the accused persons.
228. So in view of the discussion above, I hold accused
Vishwanath Aggarwal guilty for the offence U/S
120 B r/w 420/468/471 IPC
APPRECIATION OF EVIDENCE AGAINST
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ACCUSED MOHIT SAXENA, ASHWANI
SHARMA, ASHUTOSH PANT AND NAVEEN
KAUSHIK.
229. Before discussing evidence against these four
accused persons. I deem it appropriate to specify
their role as per charge being framed against them.
ROLE OF ACCUSED MOHIT SAXENA.
230. The allegations against accused Mohit Saxena are
that in pursuance of the criminal conspiracy, the
letter of allotment of land was collected by him
from the DDA. As per the authorization by the
secretary dated 03.02.2003, he was authorized to
collect the allotment letter in pursuance of
resolution passed in the meeting held on
02.02.2003 by the said society. The said
authorization was forwarded to DDA by Ashutosh
Pant by forging the signatures of Anand Ballabh.
ROLE OF ACCUSED ASHWANI SHARMA .
231. The allegations against accused Ashwani Sharma are
that in pursuance of criminal conspiracy with other
co-accused persons he had forged the signatures
of the members of the Management Committee on
the proceedings purportedly held on 25.11.2002
and 2.2.2003. Vide these proceedings members
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were enrolled and resignation of some members
were accepted in the Management Committee
register. That register shows that the said
proceeding register was signed by Sh. V.N.
Aggarwal as the President of the Society.
Similarly without verifying the balance sheets
submitted by the society, accused Ashwani Sharma
got issued undated audit report by signing the
documents. The said documents bearing
signatures of Harish Bisht as Treasurer, Pawan
Khosla as President and Anand Ballabh as
Secretary. The allegations are that most of the
signatures of General Body Meeting purportedly
signed by accused Ashwani Sharma.
ROLE OF ACCUSED ASHUTOSH PANT
232. The allegations against accused Ashutosh Pant are
that in furtherance of the criminal conspiracy with
other co-accused persons he ( Ashutosh Pant ),
while impersonating as Anand Ballabh, has
submitted request for revival of Nishat CGHS. He
has submitted the application for revival to
Narayan Diwakar, RCS on 05.09.2002 under the
forged signatures of Pawan Khosla. Pawan Khosla
has been shown to be acting as a President of the
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said society. Though he was not even a member of
the said society.
ROLE OF ACCUSED NAVEEN KAUSHIK.
233. The allegations against accused Naveen Kaushik are
that he in furtherance of the criminal conspiracy
alongwith co-accused Ashwani Sharma made
forgery on all the documents submitted by accused
Ashutosh Pant for revival of the said society.
FINDING QUA ACCUSED MOHIT SAXENA,
ASHWANI SHARMA, ASHUTOSH PANT AND
NAVEEN KAUSHIK.
234. Considering the arguments of learned Counsel for
these four accused persons and Learned Sr PP for
CBI. It is clear that there is no direct evidence or
witness being produced by the prosecution which
can show or depose that the alleged forgery being
committed by these four accused persons were
done by them in his or her presence. The case of
the prosecution lies against these accused person
upon the sole evidence of hand writing expert
PW4. Sh S. Ahmed, who has submitted his report
vide Ex PW4/B, PW4/C, PW4/E and PW4/F.
235. Now question arises whether these four accused
persons can be held guilty on the basis of expert’s
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evidence. Before giving any observation I would
like to mention here the observations of Hon’ble
Superior Courts which guided how the hand
writing expert’s evidence has to be considered. I
would also like to mention here the certain basic
principles which are required to be considered
while acting upon the opinion of hand writing
expert.
236. The entire process of examination of documents by
an expert can be looked at three stages i.e i)
taking over of specimen signatures/handwriting
pertaining to the accused persons (ii) sending the
same to the GEQD alongwith questioned
documents and (iii) the report of the GEQD given
after examination, on the basis of material sent to
expert.
237. So far as the GEQD reports being given by the
hand writing expert is concerned. I would like to
mention here certain judgments being rendered by
the Hon,ble High Courts as well as by the Hon’ble
Supreme Court with respect to evidential value of
hand writing expert. The Hon’ble Supreme Court
of India in Ramesh Chandra Aggarwal Vs Regency
Hospital Ltd (2009) 9 SCC 709 has held that “
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Relevancy of Expert’s Opinion rest on the facts on
which it is based and his competency for forming a
reliable opinion. The validity of the process by
which the conclusion is reached by the expert is
also relevant”. The Hon’ble Supreme Court in
case titled State of H.P. Vs Jai Lal & Ors (1999) 7
SCC 280 has observed that “credibility of expert
witness depends on the reasons stated in support of
his conclusions and the data and materials
furnished which form the basis of his conclusions.
The report submitted by an expert does not go in
evidence automatically. He is to be examined as a
witness in Court and has to face cross
examination”. The Hon’ble High Court of Delhi in
case titled Sandeep Dixit Vs State Crl Rev
260/2011 decided on 27th April 2012 has observed
” that the opinion of an expert under section 45 of
the Indian Evidence Act is merely an opinion and
not a conclusive proof of the validity of the
handwriting in question and the learned ASJ
exceeded its jurisdiction by ordering the framing of
charge against the petitioner merely on the report
of the GEQD without corroboration.” Hon’ble
Supreme Court of India in case titled as Murari
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Lal S/O Ram Singh Vs. State of Madhya Pradesh
1980 AIR 531 has observed that “We are firmly of
the opinion that there is no rule of law, nor any
rule of prudence which has crystallized into a rule
of law, that opinion evidence of a handwriting
expert must never be acted upon, unless
substantially corroborated. But, having due regard
to the imperfect nature of the science of
identification of handwriting, the approach, as we
indicated earlier, should be one of caution.
Reasons for the opinion must be carefully probed
and examined. All other relevant evidence must be
considered. In appropriate cases, corroboration
may be sought. In cases where the reasons for the
opinion are convincing and there is no reliable
evidence throwing a doubt, the uncorroborated
testimony of an handwriting expert may be
accepted. There cannot be any inflexible rule on a
matter which, in the ultimate analysis, is 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.” The Hon’ble Supreme Court in
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case titled State of Maharashtra Vs Damu S/O
Gopinath Shinde & Others (2000) 6 SCC 269 has
observed that ” without examining the expert as a
witness in court, no reliance can be placed”.
238. In order to bring home the guilt against the accused
persons, prosecution was under obligation to
establish beyond all doubt that all the above
mentioned processes at different stages were done
and executed in accordance with law and there is
no doubt in either of the said processes. In case it
is found that there is a serious doubt in the story of
the prosecution at any stage of the process, then
obviously benefit would go to the accused
persons.
239. So in view of the discussion above firstly I will
consider whether taking of specimen signatures of
accused persons, to get compare with the
questionnaire document, is free from all
encumbrances.
240. The specimen signatures/initial/handwriting of
these four accused were obtained vide Ex PW15/F
( Colly). The Ex PW15/F( Colly) contains
documents started from S-1 to S-302.
241. The specimen signatures/handwriting of accused
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Mohit Saxena were obtained vide Specimen sheet
S-192 to S-277. These specimen handwriting and
signatures were sent to expert for his opinion with
the questioned document but on perusal these
specimen handwriting/signatures sheet it shows
that no independent witness was joined during the
investigation while obtaining these specimen
handwriting/signatures vide sheets S-192 to
S-277.
242. Similarly, the specimen signatures/initial/
handwriting of accused Ashwani Sharma were
obtained vide specimen sheet S-1 to S-117.
Though S-1 was obtained in the presence of Gian
Singh, Assistant Superintendent, Jail No.4 Tihar
Central Jail New Delhi. But S-2 to S-117 find
mentioned the initial of witness in whose presence
specimen signatures/initial/ handwriting of accused
Ashwani Sharma were obtained but the name,
address or particular of witness is not mentioned
243. Similarly, the specimen signatures/initial/
handwriting of accused Ashutosh Pant were
obtained vide specimen sheet S-118 to S-191. But
those specimen sheets find mentioned the initial of
witness in whose presence specimen
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signatures/initial/ handwriting of accused Ashutosh
Pant were obtained but the name, address or
particular of witness is not mentioned.
244. The specimen signatures/initial/ handwriting of
accused Naveen Kaushik were obtained vide
specimen sheet S-289 to S-293. But those
specimen sheets find mentioned the initial of
witness in whose presence specimen
signatures/initial/ handwriting of accused Naveen
Kaushik were obtained but the name, address or
particular of witness is not mentioned.
245. On perusal of these documents starting from S-1 to
S-293 Ex PW15/F ( colly) ) it reveals that S-1 is
having the name and address of the witness in
whose presence the specimen signature of Ashwani
Sharma were obtained. The specimen sheet S-2 to
S-293 shows that specimen signatures/handwiring
were obtained of above named four accused
persons in the presence of witness. But that witness
has not been examined by the prosecution.
Though, PW15 has identified the signatures of the
IO B.S. Jha, in whose presence specimen
signatures of accused persons were obtained. And
PW 15 has exhibited the document Ex PW15/F
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( colly). But merely identification of the signatures
of I.O on specimen sheets does not prove the fact
that the specimen signature were genuinely
obtained by the IO. The simple reason for that is
that the accused persons have no opportunity to
cross examine the IO on the fact of genuiness of
obtaining specimen signatures on these sheets. On
the other hand, these four accused have denied the
fact that their specimen signatures /initial/
handwriting were obtained. The prosecution has
not examined the person who has witnessed the
obtaining of specimen signatures
/initial/handwriting vide S-1. Even some of the
specimen sheets are having initial only of the
witness in whose presence specimen
signatures/initial/handwriting were obtained and
some of the specimen sheets were not having any
initial too of any witness.
So the obtaining of the specimen
signatures/initial/handwriting of these four accused
namely Mohit Saxena, Ashwani Sharma, Ashutosh
Pant and Naveen Kaushik is not proved beyond
reasonable doubt by the prosecution. In the given
circumstances, the opinion/report of handwriting
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expert cannot be considered against above named
four accused persons. So the prosecution has
failed to connect the above named four accused
person with the offence they are charged with.
Finding qua accused P.K. Thirwani
246. The allegations against accused P.K. Thirwani are
that while he was working as Auditor in the office
of R.C.S,Delhi and he fraudulently and dishonestly
abused his official position as public servant and
submitted a false undated audit report Ex PW6/C (
colly) of the said society for the period 1979-1980
to till 2002. The allegations are also there that the
Audit Report was signed by Ashutosh Pant by
impersonating himself as Anand Ballabh.
247. It is argued on behalf of accused P.K Thirwani that
he has filed Audit report on the basis of documents
only which were deposited in RCS office qua the
audit of the said society and he was not involved in
any criminal act.
248. On perusal of evidence on record there is no iota
of evidence which shows that Ashutosh Pant
appeared in person impersonating himself as
Anand Ballabh before accused P.K. Thirwani.
There is no witness who has deposed that he has
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seen that Ashutosh Pant has signed on the Audit
report in front of P.K. Thirwani. The prosecution
has also unable to brought on record any evidence
which shows that there was any manipulation in
the Audit report Ex PW6/C ( Colly) except alleged
signatures by the functionary of the said society.
The prosecution has also not adduced any evidence
on record that accused P.K. Thirwani was
authorized to interfere in the functioning of the
society except auditing the audit report. There is no
evidence at all on record which shows that accused
P.K. Thirwani was having any knowledge about
identification of original functionary of the said
society. There is no evidence on record that there
is any monetary benefit obtained by accused P.K.
Thirwani. There is also no evidence on record that
the person who has represented himself Anand
Ballabh has signed in presence of accused P.K.
Thiwani. The testimony of PW 6 Pawan Khosla is
no helpful to the prosecution to prove guilt of the
accused P.K. Thirwani. The testimony of PW6 is
only to the extent that he has not signed the Audit
report Ex PE6/C ( colly).
249. As per the chargesheet accused P.K. Thirwani has
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conducted the Audit of the said society in
pursuance of the order of R.C.S dated
01.11.2002( revival order of the said society)
250. Section 53 of The Delhi Co-operative Societies
Act 1972 prescribes the Audit of a Co-operative
society and also describes the powers of the
Auditor. The sub Section (4) of Section 53 of The
Delhi Co-operative Societies Act 1972 prescribes
that ” The directors, managers, administrators and
other officers of the society shall furnish to the
person auditing the accounts of a co-operative
society all such information as to its transactions
and working of such person may require.”
251. On perusal of sub Section (4) of Section 53 of The
Delhi Co-operative Societies Act 1972, it reveals
that it is not mandatory for the managing
committee to appear in person before the Auditor.
Which is required, as per Section 53 of The Delhi
Co-operative Societies Act 1972, is the record has
to be submitted to the Auditor and audit has to be
conducted qua the financial status of the Co-
operative society as describes in Sub Section 3 of
Section 53 of the Act. If that was the mandate of
law and accused P.K. Thirwani has took a defence
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that record was submitted by the management
committee and no person in his presence has put
signatures. Then this explanation of accused P.K.
Thirwani may be accepted in the absence of any
other evidence on record. The mens rea is one of
the essential ingredient for proving the guilty of a
person. Here in the present case mens rea is also
missing.
252. So the evidence adduced by the prosecution
against accused P.K. Thirwani is not sufficient to
prove his guilt beyond reasonable doubt for the
offence Under section 120 B r/w 420/468/471 IPC
and substantive offences U/S 13(2) r/w 13 (1) (d)
of PC Act,1988.
253. Moreover, to prosecute a public servant for the
offences under P.C Act, sanction U/S 19 of P.C
Act is essential for prosecution. In order to prove
sanction order against accused P.K. Thirwani the
prosecution has examined PW 3 Sh Rakesh Mehta,
Chief Secretary, Govt of NCT, Delhi.He has
deposed that on the basis of investigation,
documents and the statement of the witnesses
submitted by the CBI with a report, he has
accorded sanction order Ex PW3/A.
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254. The witness, PW 3 in the cross examination has
deposed as to how he has accorded sanction
against accused P.K.Thirwani. The relevant
portion of his cross examination is as follows:
” It is correct that the co-operative societies work under
the DCS Act. I had not read the DCS Act and Rules
before according sanction. Vol. I generally had
knowledge about them. I did not procure any legal
opinion whether I was competent to grant sanction or
not….I had granted sanction on the basis of the
documents and the statements of witnesses received
from CBI. I did not recommend any departmental
enquiry against A10 P. K. Thirwani for the irregularities
committed by him for which sanction for prosecution
was granted. It is correct that I have not mentioned in
the sanction order that there was any loss to the
government or any benefit derived by A10 P. K.
Thirwani. I have not mentioned in the sanction order that
A10 P. K. Thirwani violated the provisions of DCS
Act/Rules while auditing the society. I do not remember
today whether I came across any statement of any
witness or any document which was against A-10 P.K.
Thirwani. I do not remember whether I had seen the FIR
and the case diary file of this case before issuing
sanction order”
255. On the other hand, DW 2 Mukesh Kumar has
placed on record Ex DW2/A ( Colly). This
document is the record of sanctioning authority
which purported to had been perused by the
sanctioning authority before according sanction for
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prosecution against accused P.K. Thirwani. This
document Ex DW2/A ( colly) does not find
contained any material, statement of witnesses or
any document which could have been gone
through by the sanctioning authority before
according sanction for prosecution against accused
P.K. Thirwani. The record of Ex DW2/A ( colly )
indicates that only copy of S.P report, allegation in
brief, Calendar of evidence ( documentary ),
Calender of evidence ( oral) and draft sanction
order has been sent by the concerned DIG with
request letter for according sanction. The
allegation in brief, Calendar of evidence
( documentary ) and Calender of evidence ( oral)
cannot be substitute of material or statement of
witnesses and incriminating material for according
sanction for prosecution. The aforesaid documents
does not give an opportunity to the sanctioning
authority to apply its mind being a neutral person,
while granting or refusing sanction for prosecution.
So in view of the law as discussed in the preceding
paragraph coupled with the testimonies of PW3,
the prosecution has failed to prove the sanction
order against accused P.K.Thirwani.
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Finding qua accused Sandeep Sahni and Ashok
Kumar Choudhary.
256. The allegation against Sandeep Sahni and Ashok
Kumar Chaudhary are that as a part of the criminal
conspiracy, accused Sandeep Sahni and Ashok
Kumar Chaudhary financed the first installment
due to DDA, to the tune of Rs.20.00 lakhs on the
promise of award of contract for construction of 90
flats by the said society. Subsequently the contract
was allotted to M/S Prime Developers, a firm
owned by both of them. There are allegations that
M/s Prime Developers has constructed 90 dwelling
units and construction of all the flats was almost
completed. On consideration. Is the allegations and
evidences against accused Sandeep Sahni and
Ashok Kumar Chaudhary are sufficient to hold
them guilty. This has to be examined hereinafter.
257. There is no direct evidence against accused
Sandeep Sahni and Ashok Kumar Chaudhary that
they have participated in any process for getting
revive of the said society. The main allegations
against them are that they have financed a sum of
Rs.20.00 lakhs which was to be paid to the DDA
on the promise of award of contract for
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construction of flats of the said society.
258. But on perusal of charge sheet facts are also there
that the said society has also borrowed from
Excellent computers, Karma Automobiles,
Neelgiri Polymers, Sushil Raj & Company to the
tune of Rs. 18 lacs. The total amount was
borrowed to the tune of Rs.38 lacs. But the
document Audit report ie Balance Sheet as on
31st March 2004, (D-19) shows that Rs.38 lacs has
been returned to the aforesaid landers. If the
money was borrowed from some persons
/companies and the same was returned to them
then the evidence adduced on record is not
sufficient to hold guilty the accused Sandeep Sahni
and Ashok Kumar Chaudhary. And presume that
they were indulge in conspiracy.
259. One aspect is also there in the present case, the
investigating agency has not made other landers as
accused persons. It seems that accused Sandeep
Sahni and Ashok Kumar Chaudhary have been
made accused only on the fact that they have
constructed the said society. To construct a
construction in itself is not sufficient to consider
the indulgence of accused Sandeep Sahni and
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Ashok Kumar Chaudhary in a crime.
260. Moreover, as per the bye laws of said society Ex
PW7/B, it is stipulated in clause 10(b) of the by
laws, the capital shall composed of loans and
deposits from members and non-members. It
shows that said society may borrow loans from
non-members also.
261. There is no evidence on record at all which shows
that any monetary relief has been obtained by
Sandeep Sahni and Ashok Kumar Chaudhary in
addition to contract of construction of flat of the
said society. So in view of the above, the
prosecution has failed to prove its case beyond
reasonable doubt against accused Sandeep Sahni
and Ashok Kumar Chaudhary.
CONCLUSION:
262. In view of the foregoing discussions, I hold
accused Vishwanath Aggarwal guilty for the
offence U/S 120-B read with Section 420/468/471
IPC.
263. Since the evidence as brought on record is not
sufficient beyond reasonable doubt to hold
accused persons, namely Markandey Mishra,
Shakuntla Joshi, Narayan Diwakar, P.K. Thirwani,
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Mohit Saxena, Ashwani Sharma, Ashutosh Pant,
Naveen Kaushik, Ashok Kumar Choudhary and
Sandeep Sahni, as guilty of offences charged with.
The prosecution has also failed to prove on record
the sanction against accused Markandey Mishra,
Shakuntla Joshi and P.K. Thirwani. To prosecute
these thee accused persons the sanction is
foundation stone. And without proper sanction
U/S 197 Cr P.C against accused Narayan Diwakar
cognizance cannot be taken and case has to be
dropped against him for the offences charged
under IPC offences. So in view of the above
discussion, accused persons namely Markandey
Mishra, Shakuntla Joshi, Narayan Diwakar, P.K.
Thirwani, Mohit Saxena, Ashwani Sharma,
Ashutosh Pant, Naveen Kaushik, Ashok Kumar
Choudhary and Sandeep Sahni are acquitted. Bail
bonds of accused Markandey Mishra, Shakuntla
Joshi, Narayan Diwakar, P.K. Thirwani, Mohit
Saxena, Ashwani Sharma, Ashutosh Pant, Naveen
Kaushik, Ashok Kumar Choudhary and Sandeep
Sahni stand cancelled and their sureties also
stands discharged.
264. Let digitally signed copy of the judgment be
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uploaded on the Court’s official website,
Digitally signed by
JAGDISH
accordingly. KUMAR
JAGDISH KUMAR
Date: 2025.03.05
16:03:41 +0530
(Jagdish Kumar )
Special Judge (PC Act) (CBI) 16
Rouse Avenue District Courts
New Delhi
Announced in the Open Court
today :05.03.2025
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