Delhi District Court
Cbi vs Narayan Diwakar Etc.(Delhi Census … on 21 April, 2025
DLCT110007302019
IN THE COURT OF SPECIAL JUDGE (PC ACT) (CBI)-17
ROUSE AVENUE COURTS, NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068
In the matter of:
State (Central Bureau of Investigation)
versus
(1) Sh. Narayan Diwakar
son of late Chatti Lal
R/o G-30, Masjid Moth
Greater Kailash Part-II
New Delhi-48.
Permanent address:
Village and Post office Bairangnia,
Distt. Sitamarhi, Bihar.
(2) Sh. Sita Ram Goyal,
Son of Sh. Ram Dhari Goyal,
R/o 56-A, Suraj Nagar, Azadpur,
Delhi-33.
Permanent address:
Village & Post Office, Chandpur,
Delhi-81.
Proceedings qua him abated vide order dated 17.09.2012.
CBI vs Narayan Diwakar and Ors.
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FIR No. RC-DAI-2005-A-0068 page no 1 of 185
(3) Sh. Faiz Mohd.
son of Shri Gulam Mohd.
R/o House No. 4794, Ahata Kidara
Bara Hindu Rao, Delhi.
(4) Sh. R.B. Chauhan
son of Shri K.S. Chauhan
R/o House No. 8, Plot No. 47, Panch Mahal Apartment
Patpar Ganj, IP Extension, Delhi-92.
Permanent address:
Village and Post Office Kandola
Patti, Pangarsua, Dev Paryag, Distt.
Pouri Garhwal, (Utranchal).
(5) Sh. Deen Bandhu Prasad
son of Shri Dhora Prasad
R/o House No. A-45, Sitapuri, Part-2
Gali No.3, New Delhi-45.
Permanent address:
Village and Post Office Basdeela
Distt. Chhapra Saran,
PS Jalalpur Bazar (Bihar).
(6) Sh. P.K. Thirwani
son of Late Sh. Moti Ram Thirwani
R/o House No. 348-E, Pocket-II
Mayur Vihar, Phase-1, Delhi-91.
(7) Sh. Munna Lal Sharma
son of Sh. Chhote Lal
R/o House No. C-6/249, Yamuna Vihar
Delhi-53.
(8) Sh. Ashutosh Pant
son of Shri Mahesh Chander Pant
R/o House No. B-160, Sadatpur Colony
Karawal Nagar, Delhi-94.
............ Accused persons
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 2 of 185
Date of Institution : 27.12.2006
Arguments concluded on : 17.03.2025
Judgment Pronounced on : 21.04.2025
For State : Mr. Neel Mani, Ld. Public Prosecutor
(through CBI)
For Defence : Mr. S.K. Bhatnagar, Ld. Advocate for accused
Faiz Mohd., accused Raj Bhushan Chauhan
and accused Deen Bandhu Prasad
Dr. Sushil Kumar Gupta, Ms. Sunita Gupta and
Mr. R.S. Ahuja, Ld. Advocates for accused
Ashutosh Pant.
Mr. Abhishek Prasad, Ld. Advocate for
accused Narayan Diwakar and accused Prahlad
Kumar Thirwani.
Mr. Anil Kumar and Ms. Pinky Singh,
Ld. Advocates for accused Munna Lal Sharma.
JUDGMENT
INTRODUCTION
1. The genesis of this case can be traced to order dated
02.08.2005 in Yogi Raj Krishna Cooperative Group Housing Society
Ltd. vs Delhi Development Authority and others1 wherein the Delhi
High Court vide order dated 02.08.2005 directed, the CBI to conduct a
thorough investigation in all matters of 135 Co-operative Societies, on
1Writ Petition (Civil) No. 10066/2004
CBI vs Narayan Diwakar and Ors.
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an apprehension that in connivance with office of Registrar of Co-
operative Societies and office of DDA, the builders had taken over the
Co-operative Movement in Delhi. It was opined “Land in Delhi is
allotted at a pre-determined rate and not on the basis of the market value
of the land. Cooperative Societies were formed in order to have flats at
affordable prices by the middle income group and lower income group.
It is the element of profit making in view of difference of market value
of land and the value on which land is allotted to the Societies, have
resulted in the nexus of builders and officials to reap gain by unholy
alliance. If apartments are sold on the basis of market price the very
purpose of land given on concessional rate to the Cooperative Societies
stands defeated. Keeping in view the enormous amount of money
invested and involvement of influential persons, nature of crime,
voluminous records, we also direct Director, CBI to formulate a special
investigating team headed by an officer not below the rank of DIG with
adequate staff to investigate the whole matter. We also direct the Chief
Secretary, Govt of NCT of Delhi as well as Secretary, DOPT to provide
additional staff for this purpose to the special investigating team.” . Delhi
Census CGHS was one such Co-operative Group Housing Society
which was investigated.
COMPLAINT
2. Sh. Rajesh Kumar, Inspector of Police, CBI, BS&FC, Delhi
(hereinafter, referred to as ‘the complainant’) filed a complaint dated
22.12.2005 (D-2) before the Superintendent of Police, CBI, ACB
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alleging that pursuant to order dated 02.08.2005 in W.P. (C) No.
10066/2004, a Preliminary Enquiry bearing No. PE.BD1/2005 (E) 2005
was registered against six Societies on 08.08.2005 by CBI, BS&FC,
New Delhi and enquiry was conducted. Allegedly, as per the preliminary
enquiry, during 1970-1980 or thereafter, a number of Group Housing
Societies were registered at the office of Registrar, Co-operative
Societies, New Delhi but in due course became defunct for not
following mandatory requirements as per The Delhi Co-operative
Societies Act, 1972 (hereinafter, referred to as ‘DCS Act, 1972‘).
Thereafter, their winding up was ordered. However, a number of defunct
societies were revived by the Registrar of Co-operative Societies
(hereinafter, referred to as ‘RCS’) on the basis of false/fabricated
documents and were recommended to DDA for allotment of land. Thus,
allegedly, by abuse of Section 63(3) of DCS Act, 1972 the builders in
league with officials of RCS caused wrongful gain to themselves and
others.
2.1 As per enquiry, Delhi Census CGHS had been registered
with registration No. 128 on 31.05.1971 having office at Laxmi Bai
Nagar, New Delhi and was brought under liquidation on 23.03.1979 due
to non-compliance of various provisions of DCS Act,1972. Further
during enquiry, it was revealed that accused Narayan Diwakar, the then
RCS, accused Sita Ram Goyal (since deceased) the then Assistant
Registrar (West), accused Faiz Mohd., Group-II, Inspecting Officer,
accused R.B. Chauhan, Dealing Assistant and accused Deen Bandhu
Prasad, Election Officer (all officials working at the office of RCS, NCT
CBI vs Narayan Diwakar and Ors.
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of Delhi) conspired with unknown persons to revive Delhi Census
Cooperative Group Housing Society (hereinafter referred to as ‘Delhi
Census CGHS’). Allegedly in pursuance to the said conspiracy, accused
Narayan Diwakar got the file reconstructed by accused R.B. Chauhan
on latter’s report that the original file of the Society was not traceable,
on a letter dated 27.12.2003, of one Vishnu Rai, claiming to be the
Hony. Secy. of the Society, requesting for revival of the Society.
Accused Sita Ram Goyal (since deceased) allegedly, dishonestly
appointed accused Faiz Mohammad to conduct enquiry into the working
of the Society and accused Faiz Mohammad submitted a false inspection
report dated 27.01.2003, both with regards to the address of the Society
and its affairs. The said false inspection report was allegedly,
dishonestly accepted by accused Sita Ram Goyal (since deceased) and
accused Naryan Diwakar after which, accused Narayan Diwakar for
corrupt and illegal consideration, facilitated revival of Society vide
order dated 01.03.2004, on recommendation of accused R. B. Chauhan
and accused Sita Ram Goyal (since deceased). Thereafter, accused Sita
Ram Goyal (since deceased) sent the final list of members on
04.03.2004 to Assistant Registrar (Policy), Cooperative Societies, Govt.
of Delhi, Parliament Street, for onward submission to DDA for
allotment of land. Accused Deen Bandhu Prasad was appointed as the
Election Officer of the Society by accused Sita Ram Goyal (since
deceased) as per order dated 01.03.2004 of accused Narayan Diwakar
and accused Deen Bandhu Prasad thereafter, submitted a false report
about the elections of the Society.
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2.2 The complainant also alleged that accused Narayan
Diwakar had confirmed the presence of Sh. Vishnu Rai in February
2004, before him, in notings in RCS file but enquiry revealed that Sh.
Vishnu Rai, President and Sh. N.D. Pathak, Secretary of the Society
were not residing at the given addresses. Also, Sh. V. K. Taneja, Smt.
Uma Gupta and Smt. Poonam, all shown as members of the Managing
Committee of the Society denied any association with the Society and
the remaining members of the Management Committee were not
traceable. Therefore, an apprehension was also expressed that the
documents purportedly, executed by the Society were false and
fabricated.
2.3 Complaint also mentioned that the office of Delhi Census
CGHS was also not found to be existing at the given address at
WZ-1198/1, Main Bazar, Rani Bagh, New Delhi as the property
belonged to one Sh. V.K. Khanna, who had denied the existence of the
Society at the given address at any point of time.
FIR
3. On the aforementioned complaint, FIR No. RC-DAI-2005-
A-0068 (D-1) was registered on 22.12.2005, under Section 120B r/w
420, 467, 468, 471 IPC r/w 13(2) r/w 13(1)(d) of The Prevention of
Corruption Act 1988 (hereinafter referred as ‘P.C. Act‘) against the
accused persons and investigation was marked to Sh. S.C. Bhalla,
Inspector of Police, CBI, ACB, New Delhi.
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CHARGESHEET
4. Pursuant to the investigation, chargesheet under Section
120B IPC r/w 420, 468, 471 r/w 13(2) r/w 13(1)(d) of P.C. Act and
420/511 IPC, 468 and 471 Indian Penal Code (hereinafter, referred as
‘IPC‘) against accused persons namely Narayan Diwakar, Sita Ram
Goyal (since deceased), Faiz Mohd., R.B. Chauhan, Deen Bandhu
Prasad, P.K. Thirwani, Munna Lal Sharma and Ashutosh Pant, was filed
on 27.12.2006 before the then Duty Metropolitan Magistrate and was
made over for consideration before the concerned Court.
4.1 Chargesheet qua all accused persons except accused
Ashutosh Pant was filed without their arrest. Accused Ashutosh Pant
arrested during investigation had been ordered to be released on bail on
13.09.2006.
4.2 Ld. Predecessor of this Court, vide order dated 23.08.2007,
took cognizance of the offences and summoned all the accused persons.
4.3 All accused persons entered their appearance on
18.10.2007. Remaining accused persons also moved their bail
application which were allowed vide order dated 08.02.2008.
4.4 In compliance of Section 207 of The Criminal Procedure
Code, 1973 (hereinafter, referred to as ‘Cr.P.C.’), documents were
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supplied to the accused persons.
4.5 Thereafter, an application under Section 197 Cr.P.C. dated
31.07.2008 for discontinuing/dropping/terminating the prosecution was
moved by accused Narayan Diwakar for want of requisite sanction for
prosecution. The Ld. Predecessor of this Court vide detailed order dated
17.09.2008 dismissed the application observing as under:
“It was agitated on behalf of accused Narayan Diwakar that this Court
should enter in to meticulous assessment of facts to ascertain as to
whether he was discharging his official functions. At this juncture, the
Court has to see global aspect of facts to find out that all the
circumstances highlighted by prosecution form a complete chain of
evidence. As detailed above, events narrated by the investigating
agency show that accused Narayan Diwakar and his associates moved
with a conspiracy and then offences were committed. At this stage, it is
not possible to assess facts meticulously. Therefore, I do not find any
force in the application. In case accused succeeds, after trial of the
case, to show that he was not part of the conspiracy, he may raise issue
of protection under section 197 of the Code at that juncture. With these
observations, his application is declined.”
4.6 Accused P.K. Thirwani also moved an application dated
12.03.2009 seeking stay over proceedings in absence of sanction for
prosecution qua him under Section 197 Cr.P.C. However, Ld.
Predecessor of this Court vide order dated 06.08.2009 dismissed the
application opining as under :
“9. A defunct society was revived on the basis of an application of an
impersonator / non-existent person. Accused P.K. Thirwani filed a false
audit report, showing the address of the society as WZ 1198/1, Main
Bazar, Rani Bagh, Delhi but no society was functioning there nor
Vishnu Rai was its Honorary Secretary. These facts show that accused
P.K. Thirwani was a part of criminal conspiracy to commit criminal
misconduct. A sanction for his prosecution under Section 19 of the P.C.
Act under Section 120-B r/w Section 420/468/471 IPC and Section 13
(2) r/w 13(1)(d) of P.C. Act and Section 15 of P.C. Act is already on
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record. As such, there is no need for any sanction under Section 197
CrPC. The application is without merit and the same is dismissed,
subject to the costs of Rs.500/-.”
4.7 However, there is no material available on record which
shows that the order was subjected to any challenge before the superior
Court and as such, the issue qua him attained finality. Only an
application dated 03.09.2009 seeking waiver of cost was moved by
accused P.K. Thirwani.
4.8 Accused R.B. Chauhan also moved an application dated
26.03.2009 seeking to challenge the cognizance for want of sanction for
prosecution under Section 19 of P.C. Act. He had challenged the validity
of the sanction as the same had been granted by Sh. Anil Mehra,
Director, Family Welfare, Government of NCT of Delhi as he was not
competent to remove accused R.B. Chauhan from his office. On the
same, vide order dated 06.08.2009, Ld. Predecessor of this Court treated
the issue as triable.
CHARGE
5. Vide order dated 05.08.2010, the ld. Predecessor of this
Court framed charges against the accused persons as under:
S. No. Name of Accused persons Sections
1. All accused persons Section 120B IPC r/w Section
419/420/467/468/471/IPC r/w
Section 13(2) r/w 13(1)(d)CBI vs Narayan Diwakar and Ors.
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P.C. Act.
2. Accused Narayan Section 15 r/w Section 13(2)
Diwakar, accused Sita r/w Section 13(1)(d) P.C. Act.
Ram Goyal (since
deceased), Deen Bandhu
Prasad, Faiz Mohammad,
R. B. Chauhan, and P.K.
Thirwani.
3. Accused Ashutosh Pant Section 419 IPC, Section 468
IPC.
4. Accused Ashutosh Pant Section 120B IPC r/w section
and accused Munna Lal 420, 468 and 471 IPC.
Sharma
PROSECUTION EVIDENCE
6. In order to prove the allegation, the prosecution has
examined the following witnesses:
S PW Name of To prove Document Cross
No No. witnesses examination
1 PW1 Sh. Amar That he is not a Affidavit The accused
Singh member of Delhi dated persons did not
Census, CGHS but 16.02.2004 avail the
is or was a member Mark-X, opportunity to
of United India page No. 31 cross examine
Insurance CGHS and of D-13. this witness,
had never sworn any despite
affidavit to be given opportunity
to Delhi Census being granted.
CGHS.
2 PW2 Sh. Sansar That he is not a Affidavit The accused
Chand Sharma member of Delhi dated persons did not
Census CGHS but 21.02.2004 avail the
was a member of Mark-X1. opportunity to
United India Page No. 28 cross examine
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 11 of 185 Insurance CGHS but of D-13. this witness, subsequently despite resigned. He also opportunity deposed he had being granted. never sworn any affidavit to be given to Delhi Census CGHS. 3. PW3 Sh. Mangat That he is not a Affidavit The accused Ram member of Delhi dated persons did not Census CGHS but 16.02.2004, avail the
was a member of Mark -X2, opportunity to
United India Page No. cross examine
Insurance CGHS but 149 of D-13 this witness,
subsequently despite
resigned. He also opportunity
deposed he had being granted.
never sworn any
affidavit to be given
to Delhi Census
CGHS.
4. PW6 Sh. Ajay Jain That his father was a Affidavit The accused
on behalf of his member of United dated persons did not
father Late Sh. India Insurance 16.02.2004, avail the
Madan Lal Jain CGHS and expired Ex. PW6/B, opportunity to
on 17.06.1991. He Page No. cross examine
never became a 132 of D-13. this witness,
member of Delhi despite
Census CGHS and opportunity
his father also being granted.
deposed he had
never sworn any
affidavit to be given
to Delhi Census
CGHS.
5. PW7 Sh. Chander That he is not a Affidavit The accused
Mani Pathak member of Delhi dated persons did not
Census CGHS but 16.02.2004, avail the
was a member of Ex.PW7/A, opportunity to
United India Page No. 57 cross examine
Insurance CGHS but of D-13 this witness,
subsequently despite
resigned. He also opportunity
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 12 of 185 deposed he had granted. never sworn any affidavit to be given to Delhi Census CGHS. 6 PW8 Sh. Raj Kumar That he was an Affidavit The accused Manchanda employee of United dated persons did not India Insurance 16.02.2004, avail the
Company but never Ex. PW8/A opportunity to
became a member of Page No. 70 cross examine
Delhi Census of D-13 this witness,
CGHS. He also despite
deposed he had opportunity
never sworn any being granted.
affidavit to be given
to Delhi Census
CGHS.
7 PW9 Sh. Rajinder That he is a member Affidavit The accused
Kumar Sharma of United India dated persons did not
Insurance CGHS and 16.02.2004, avail the
never became a Ex.PW9/A opportunity to
member of Delhi Page No. cross examine
Census CGHS. He 122 of D-13 this witness,
also deposed he had despite
never sworn any opportunity
affidavit to be given being granted.
to Delhi Census
CGHS.
8. PW10 Sh. R.P. That he retired as Affidavit The accused
Malhotra Senior Divisional dated persons did not
Manager, United 16.02.2004, avail the
India Insurance Ex. opportunity to
company but never PW10/A, cross examine
became a member of Page No.143 this witness,
any CGHS. He also of D-13 despite
deposed he had opportunity
never sworn any granted.
affidavit to be given
to Delhi Census
CGHS.
9. PW11 Sh. Girish That he retired as Affidavit The accused
Chandra Senior Divisional dated persons did not
Chopra Manager, United 16.02.2004, avail the
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 13 of 185 India Insurance Ex.PW11/A opportunity to Company and he Page No. cross examine became a member 150 of D-13 this witness, of United India despite Insurance CGHS opportunity Limited. He also being granted. deposed he had never sworn any affidavit to be given to Delhi Census CGHS. 10. PW12 Sh. Deepak That he retired as Affidavit The accused Bahl Administrative dated persons did not Officer, United India 16.02.2004, avail the
Insurance Company Ex. PW12/A opportunity to
and he became a Page No. 77 cross examine
member of United of D-13 this witness,
India CGHS despite
Limited. He also opportunity
deposed he had being granted.
never sworn any
affidavit to be given
to Delhi Census
CGHS.
11. PW13 Smt. Prem Puri That she retired as Affidavit The accused
Assistant Manager, dated persons did not
United India 16.02.2004, avail the
Insurance Company Ex.PW13/A, opportunity to
and she became a page No. 76 cross examine
member of United of D-13. this witness,
India Insurance despite
CGHS. She also opportunity
deposed she had being granted.
never sworn any
affidavit to be given
to Delhi Census
CGHS.
12. PW14 Sh. Lal Chand That he retired as Affidavit The accused
Assistant, United dated persons did not
India Insurance 16.02.2004, avail the
Company and Ex.PW14/A opportunity to
became a member Page No. cross examine
of United India 141 of D-13 this witness,
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Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 14 of 185 Insurance CGHS. He despite also deposed he had opportunity never sworn any being granted. affidavit to be given to Delhi Census CGHS. 13. PW15 Sh. R.C. Sood He denied that he Affidavit This witness ever became a dated was only cross member of Delhi 16.02.2004, examined by Census CGHS Ex. PW15/A accused Page No. 26 Ashutosh Pant of D-13 and accused Deen Bandhu Prasad adopted the cross examination conducted by accused Ashutosh Pant. 14 PW16 Sh. Madan Lal That he retired as Affidavit This witness Thakur Assistant, United dated was only cross India Insurance 16.02.2004, examined by Company and is a Ex. accused member of United PW16/A, Ashutosh Pant India Insurance Page No. 43 and accused CGHS. He also of D-13 Deen Bandhu deposed he had Prashad. He never sworn any was re- affidavit to be given examined by to Delhi Census the Ld. Public CGHS. Prosecutor for the State. 15. PW17 Ms. Leena That she is a Affidavit This witness Baijal member of United dated was only cross India Insurance 16.02.2004, examined by
CGHS and never Ex. PW17/A accused Munna
became a member of Page No. 85 Lal Sharma and
Delhi Census of D-13 re-examined by
CGHS. She also (Objected to the Ld. Public
deposed she had on mode of Prosecutor for
never sworn any proof by the State.
affidavit to be given counsel for
to Delhi Census A-7 Munna
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Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 15 of 185 CGHS. Lal Sharma) 16. PW18 Sh. R.D. Joshi That he is a member Affidavit The accused of United India dated persons did not Insurance CGHS and 16.02.2004, avail the
never became a Ex. PW18/A opportunity to
member of Delhi Page No. 15 cross examine
Census CGHS. He of D-13. this witness,
also deposed he had despite
never sworn any opportunity
affidavit to be given being granted.
to Delhi Census
CGHS.
17. PW19 Sh. G.K. Gupta That he is a member Photocopy The accused
of United India of persons did not
Insurance CGHS and application avail the
never applied for and for opportunity to
paid subscription membership cross examine
fees or gave any Ex.PW19/A this witness,
affidavit to become (Objected to despite
a member of Delhi on mode of opportunity
Census CGHS. proof) being granted.
Photocopy
of Receipt
dated
10.01.1973
Ex.PW19/B
(Objected to
on mode of
proof)
Photocopy
of affidavit
dated
16.02.2004
filed by one
Vishnu Rai,
Ex.PW19/C
showing
witness as a
member at
Srl. No. 79
with
Membership
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Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 16 of 185 No. 93, Ex.PW19/C (Objected to on the mode of proof). Photocopy of Membership List for UPC Ex.PW19/D mentioning the witness at Srl. No. 93. Photocopy of proforma of submission of list of member for verification finding mention of the witness Ex.PW19/E. Photocopy of consolidated list of members showing the witness at Srl. No. 79 with Membership No. 93, Ex.PW19/F. (Objected to on mode of proof). CBI vs Narayan Diwakar and Ors. Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 17 of 185 Original affidavit dated 16.02.20204 executed by the witness Ex. 19/G but he denied his signatures therein (objected to as the affidavit is not signed by the witness). 18 PW20 Sh. V.S. That he retired as Photocopy The accused Chopra Director General- of persons did not Manager of United application avail the India Insurance for opportunity to Company. He membership cross examine became member of Ex. PW20/A this witness, United India (Objected to despite
Insurance CGHS but on mode of opportunity
later resigned and proof). being granted.
never applied for and
paid subscription or Photocopy
gave affidavit to of Receipt
become a member of dated
Delhi Census 16.08.1972
CGHS. Ex.PW20/B
(Objected to
on mode of
proof)
Affidavit
dated
16.02.2004
Ex.PW20/C
given for
membership
.
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FIR No. RC-DAI-2005-A-0068 page no 18 of 185
Photocopy
of affidavit
dated
16.02.2004
filed by one
Vishnu Rai,
Ex.PW19/C
showing
witness as a
member at
Srl. No. 26
with
Membership
No. 40,
Ex.PW19/C
(Objected to
on the mode
of proof).
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
mentioning
the witness
at Srl. No.
40.
Photocopy
of proforma
of
submission
of list of
member for
verification
finding
mention of
the witness
Ex.PW19/E.
Photocopy
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FIR No. RC-DAI-2005-A-0068 page no 19 of 185
of
consolidated
list of
members
showing the
witness at
Srl. No. 26
with
Membership
No. 40,
Ex.PW19/F.
(Objected to
on mode of
proof).
19. PW21 Sh. Hari Singh That he was a Photocopy The accused
member of United of persons did not
India Insurance application avail the
Company and never for opportunity to
applied for and paid membership cross examine
subscription or gave Ex. PW21/A this witness,
affidavit to become (Objected to despite
a member of Delhi on mode of opportunity
Census CGHS. proof). being granted.
Photocopy
of Receipt
dated
16.08.1972
Ex.PW21/B
(Objected to
on mode of
proof)
Affidavit
dated
16.02.2004
Ex.PW21/C
given for
membership
.
Photocopy
of affidavit
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 20 of 185
dated
16.02.2004
filed by one
Vishnu Rai,
Ex.PW19/C
showing
witness as a
member at
Srl. No. 13
with
Membership
No. 27,
Ex.PW19/C
(Objected to
on the mode
of proof).
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
mentioning
the witness
at Sl. No.
27.
Photocopy
of proforma
of
submission
of list of
member for
verification
finding
mention of
the witness
at Sl. No.27
Ex.PW19/E
Photocopy
of
consolidated
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 21 of 185
list of
members
showing the
witness at
Sl. No. 13
with
Membership
No. 27,
Ex.PW19/F.
(Objected to
on mode of
proof).
20. PW22 Sh. N.P. That he retired as Photocopy This witness
Upadhyay Senior Assistant, of was cross
United India application examined by
Insurance Company for accused
and is a member of membership Ashutosh Pant
United India Ex. PW22/A and accused
Insurance CGHS. He (Objected to Deen Bandhu
never applied for on mode of Prasad.
and paid proof).
subscription or gave
affidavit to become Photocopy
a member of Delhi of Receipt
Census CGHS. dated
16.08.1972
Ex.PW22/C
(Objected to
on mode of
proof)
Affidavit
dated
16.02.2004
Ex.PW22/B
given for
membership
.
Photocopy
of
Membership
List for
UPC
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 22 of 185
Ex.PW19/D
mentioning
the witness
at Srl. No.
42.
21. PW23 Sh. Ashok That he was a Affidavit This witness
Kumar Tandon member of United dated was cross
India Insurance 16.02.2004 examined by
Company Ltd. but Ex.PW23/A accused
resigned and given for Ashutosh Pant
thereafter, never membership and accused
applied and paid . (page no. Deen Bandhu
subscription or gave 142) Prasad.
affidavit to become
a member of Delhi Photocopy
Census CGHS. of list of
members for
verification
Ex.PW23/B
(colly)
showing the
witness at
Srl. No. 142.
Photocopy
of list of
members as
on
31.03.2003
Ex.PW23/C
showing the
witness at
Srl. No. 142.
Photocopy
of list of
members as
on
30.06.1978
Ex.PW23/D
(colly)
showing the
witness at
Srl. No. 142.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 23 of 185
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
mentioning
the witness
at Srl. No.
142.
22. PW24 Sh. Brij That he was a Affidavit This witness
Kishore Gupta member of United dated was only cross
India Insurance 16.02.2004 examined by
CGHS but later Ex.PW24/A accused
resigned and given for persons namely
thereafter, had never membership Ashutosh Pant,
applied and paid . Faiz Mohd and
subscription or gave P.K. Thirwani.
affidavit to become Photocopy
a member of Delhi of list of
Census CGHS and members for
never received any verification
communication from Ex.PW23/B
the RCS Office (colly)
pertaining to CGHS. showing the
witness at
To prove that he Srl. No. 72.
never attended any
meeting of the Photocopy
management of list of
committee. members as
on
To demonstrate that 31.03.2003
on perusal of list of Ex.PW23/C
members of Delhi showing
Census CGHS Ex. Palson Peter
PW23/B (Colly) at Sl.
(were his colleagues No.128 and
and friends who Madan Lal
were members of Jain at Srl.
United India No. 132
Insurance, CGHS). despite them
having
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 24 of 185
To prove that Sh. expired
Palson Peter and Sh. before 2000.
Madan Lal Jain had
already expired Photocopy
before the year 2000 of list of
and was still shown members as
as members in Ex. on
PW23/C as on 30.06.1978
31.03.2003. Ex.PW23/D
showing the
witness at
Sl. No. 72.
23. PW25 Sh. Umesh That his father was a Photocopy This witness
Aggarwal member of United of was only cross
(On behalf of India Insurance application examined by
his father late Company Ltd. and for accused Munna
Sh. J.N. never applied and membership Lal.
Aggarwal). paid subscription or in the name
gave affidavit to of Jai
become a member of Narayan
Delhi Census Aggarwal
CGHS. (his
deceased
The testimony of father)
this witness is also Ex.PW25/A
relevant to show that (Objected to
accused Faiz on mode of
Mohammad had proof).
never visited his
premises for Photocopy
physical verification of Receipt
of membership of dated
his late father who 15.03.1973
had already expired Ex.PW25/F
in May, 2003 and (D-14 Vol-
therefore, could not III)
have affirmed
affidavit dated Affidavit for
16.02.2004. membership
Ex.
PW25/B.
Affidavit
dated
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 25 of 185
16.02.2004
filed by one
Vishnu Rai,
Ex.PW25/C
showing the
father of
witness as a
member at
Sl. No. 98
with
Membership
No. 112.
(Objected to
on the mode
of proof)
Photocopy
of the same
is already
Ex.PW19/C.
Photocopy
of Ration
Card of his
father Mark-
PW25X.
Letter dated
09.02.2005
by accused
Faiz
Mohammad
to the
Assistant
Registrar
(West)
showing the
name of
father of the
witness at
Sl. No.2
Ex.PW25/D
(Objected to
on mode of
proof).
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 26 of 185
Photocopy
of
consolidated
list of
members
showing the
name of
father of
witness at
Sl. No. 98
with
Membership
No.112,
Ex.PW19/F.
Photocopy
of list of
members for
verification
Ex.PW23/B
(colly)
showing the
father of the
witness at
Sl. No. 112.
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
mentioning
the father of
the witness
at Sl. No.
112.
Photocopy
of list of
members as
on
31.03.2003
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 27 of 185
Ex.PW23/C
showing his
father at Sl.
No.112.
Photocopy
of list of
members as
on
30.06.1978
Ex.PW25/E
(Objected to
on mode of
proof)
Showing the
father of the
witness at
Sl. No.112.
24. PW26 Sh. Virender That he was a Photocopy This witness
Kumar Taneja member of United of was only cross
India Insurance application examined by
Company and never for accused
applied and paid membership persons namely
subscription or gave Ex. PW26/A Deen Bandhu
affidavit to become (Objected to Prasad and
a member of Delhi on mode of Ashutosh Pant.
Census CGHS. proof).
To prove that no Photocopy
communication was of Receipt
received from the dated
office of RCS 15.03.1973
pertaining to Delhi Ex.PW26/D
Census CGHS. (Objected to
on mode of
To establish that he proof)
never attended any (Inadvertent
meetings of Delhi ly exhibited
Census CGHS. as
Ex.PW26/C
To prove that ).
no physical
verification of his Affidavit
membership had dated
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 28 of 185
been carried out. 16.02.2004
Ex.PW26/B
given for
membership
.
Affidavit
dated
16.02.2004
filed by one
Vishnu Rai,
Ex.PW25/C
showing
witness as a
member at
Sl. No. 106
with
Membership
No. 120,
(Objected to
on the mode
of proof).
Photocopy
of Ration
Card
Ex.PW26/C
(Objected to
on mode of
proof).
Letter dated
09.02.2005
by accused
Faiz
Mohammad
to the
Assistant
Registrar
(West)
showing the
name of the
witness at
Sl. No.1
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 29 of 185
Ex.PW25/D
(Objected to
on mode of
proof).
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
mentioning
the witness
at Sl. No.
120.
Photocopy
of list of
members for
verification
Ex.PW23/B
(colly)
showing the
name of the
witness at
Sl. No. 120.
Photocopy
of list of
members as
on
31.03.2003
Ex.PW23/C
showing
him at Sl.
No.120.
Photocopy
of list of
members as
on
30.06.1978
Ex.PW25/E
(Objected to
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 30 of 185
on mode of
proof)
showing the
witness at
Sl. No.120.
Photocopy
of
consolidated
list of
members
showing the
witness at
Sl. No. 106
with
Membership
No. 120,
Ex.PW19/F
25. PW27 Sh. Anand To prove that his Affidavit This witness
(On behalf of grandfather was a dated was only cross
his grandfather driver in United 16.02.2004 examined by
Late Sh. India Insurance was not of accused
Krishan Lal) Company and had his persons namely
never acquired the grandfather Deen Bandhu
membership of Delhi and is Prasad and
Census CGHS. Ex.PW27/A. Ashutosh Pant.
Being illiterate, he
only appended his Photocopy
thumb impression of Ration
instead of signing. Card
Also to establish that Ex.PW27/B.
his grandfather had (Incorrectly
expired on endorsed as
25.12.2004. PW27/C in
the file.)
Photocopy
of death
certificate of
Sh. Kishan
Lal
Ex.PW27/C.
(Incorrectly
endorsed as
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 31 of 185
PW27/B in
the file.)
26. PW28 Sh. Tajinder To prove that his Affidavit for This witness
Pal on behalf father was member membership was only cross
of his deceased of United India dated examined by
father Sh. Insurance CGHS but 16.02.2004 accused
Roop Lal resigned from it and Ex. persons namely
never ever became a PW28/A. Deen Bandhu
member of Delhi Prasad and
Census CGHS as Carbon Ashutosh Pant.
shown and that he Copy of
had expired on death
22.07.1998, itself. certificate of
late Sh.
Roop Lal
Ex.
PW28/B.
27. PW29 Sh. Ashok To prove that his Affidavit for This witness
Bhasin wife Smt. Anita membership was cross
(On behalf of Bhasin was an in the name examined by
his wife) Assistant Accounts of Smt. accused
Officer with United Anita persons namely
India Insurance Bhasin Ex. Deen Bandhu
Company and PW29/A. Prasad and
became a member of Ashutosh Pant.
United India
Insurance CGHS,
only.
28. PW30 Sh. S.P. To prove that he was Photocopy His further
Chhatwal a member United of examination in
India Insurance application chief was
CGHS and never for deferred for
applied to become membership want of his
member of Delhi Ex. PW30/A specimen
Census CGHS. (Objected to signature but
on mode of thereafter the
proof). witness was
never
Photocopy examined.
of Receipt
dated
09.11.1972
Mark-30X
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 32 of 185
(Objected to
on mode of
proof)
Affidavit
dated
16.02.2004
Ex.PW30/B
given for
membership
.
Affidavit
dated
16.02.2004
filed by one
Vishnu Rai,
Ex.PW25/C
showing
witness as a
member at
Sl. No. 66
Ex.PW25/C
(Objected to
on the mode
of proof).
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
mentioning
the witness
at Sl. No.
80.
Photocopy
of proforma
of
submission
of list of
member for
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 33 of 185
verification
finding
mention of
the witness
at Sl. No.76
membership
No. 80
Ex.PW19/E.
Further
examination
of the
witness was
deferred on
09.05.2013.
29. PW34 Smt. Poonam To prove that neither Photocopy The accused
Vasudeva was she a member of of persons did not
Delhi Census CGHS application avail the
nor did she attend for opportunity to
any meeting of the membership cross examine
Society nor any in the name this witness,
physical verification of Poonam despite
of the membership Ex.PW34/A opportunity
was carried out. being granted.
Affidavit for
membership
Ex.
PW34/B.
Photocopy
of list of
members for
verification
Ex.PW23/B
(colly)
showing the
witness at
Sl. No. 119.
Photocopy
of
Membership
List for
UPC
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 34 of 185
Ex.PW19/D
mentioning
the name of
the witness
at Sl. No.
119.
Proceedings
of Special
General
Body
Meeting
dated
04.04.2004
Ex.PW34/C.
30. PW35 Sh. P. Raman To prove that he has Photocopy The accused
been a member of of persons did not
United India application avail the
Insurance CGHS for opportunity to
since 1980 and never membership cross examine
applied for the Ex. this witness,
membership of Delhi PW35/B. despite
Census CGHS. opportunity
Affidavit being granted.
He also deposed that dated
he never attended 16.02.2004
any meeting of Ex.PW35/A
CGHS nor seconded given for
any person in the membership
said Society as its .
office bearer.
List of
member as
on
30.06.1978
showing the
witness at
Sl. No. 140.
The list is
Ex.PW35/C.
Affidavit
dated
16.02.2004
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 35 of 185
filed by one
Vishnu Rai,
Ex.PW25/C
showing the
witness as a
member at
Sl. No. 126
(Objected to
on the mode
of proof)
Photocopy
of the same
is already
Ex.PW19/C.
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
(colly)
mentioning
the witness
at Sl. No.
140.
Photocopy
of proforma
of
submission
of list of
member for
verification
finding
mention of
the witness
at Sl.
No.129
Ex.PW19/E
31. PW36 Sh. Ummed To prove that he Photocopy This witness
Singh became a member of of was only cross
United India application examined by
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 36 of 185
Insurance CGHS in for accused
1979 and never membership persons namely
joined any other Ex. PW36/A Munna Lal
Housing Society or (Objected to Sharma and
attended its meetings on mode of Ashutosh Pant.
or received any proof).
communication from
the office of RCS
qua membership of Photocopy
Delhi Census of Receipt
CGHS. dated
21.09.1972
He denied Mark
acquaintance with PW36/X1
Sh. Vishnu Rai, (Objected to
alleged applicant. on mode of
proof)
To prove that list of
members of Delhi Affidavit
Census CGHS dated
Ex.PW23/B, Ex. 16.02.2004
PW19/F and Ex. Ex.PW36/B
PW25/C were given for
actually showing membership
members in United .
India Insurance
CGHS. Photocopy
of
proceeding
dated
16.08.1972
Mark
PW36/X2.
Photocopy
of
proceeding
dated
17.07.1977
Ex.PW36/C
(Objected to
on mode of
proof).
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 37 of 185
Photocopy
of
proceeding
dated
05.10.2003
Ex.PW36/D
(Objected to
on mode of
proof).
Photocopy
of
proceeding
dated
04.04.2004
already
Ex.PW34/C
(Objected to
on mode of
proof).
Photocopy
of proforma
of
submission
of list of
member for
verification
finding
mention of
the witness
at Sl. No.51
Ex.PW19/E
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
(colly)
mentioning
the witness
at Sl. No.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 38 of 185
55.
Affidavit
dated
16.02.2004
filed by one
Vishnu Rai,
Ex.PW25/C
showing the
witness as a
member at
Sl. No. 51
(Objected to
on the mode
of proof)
Photocopy
of the same
is already
Ex.PW19/C.
32. PW37 Sh. I.P.S. To prove that List of The accused
Sondhi members shown in members of persons did not
Delhi Census CGHS United India avail the
are members of Cooperative opportunity to
United India Group cross examine
Insurance CGHS. Housing this witness,
Society Ltd. despite
To also prove that he as on opportunity
had attested the 14.12.1981 being granted.
death certificate of Ex.PW37/A.
late Sh. Saminder
Nath Saha, affidavit Death
of Ashish Peter qua certificate of
death of his father, Saminder
death certificates of Nath Shah
late Sh. S.R. Handa Ex.PW37/B.
and late Sh. Kushal
Singh who were Attested
members of United copy of
India Insurance affidavit
CGHS. filed by
Ashish Peter
affirming
i.e. father
Polson Peter
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 39 of 185
had expired
Ex.PW37/C.
Death
certificate of
Sh. S.R.
Handa
Ex.PW37/D.
Death
certificate of
Sh. Kushal
Singh Ex.
PW37/E.
33. PW42 Sh. K.S. To prove that he was Photocopy This witness
Gandilok a member of United of was only cross
India Insurance application examined by
CGHS and never for accused
applied for membership Ashutosh Pant.
membership as Delhi Ex. PW42/A
Census. (Objected to
on mode of
proof).
Photocopy
of Receipt
dated
10.01.1973
Ex.PW42/B
(Objected to
on mode of
proof)
Affidavit
dated
16.02.2004
Ex.PW41/A
-54A given
for
membership
34. PW44 Sh. E.S.N. To prove that he The accused
Moorthy retired as Deputy List of persons did not
General Manager members of avail the
United India United India opportunity to
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 40 of 185
Insurance Company Cooperative cross examine
and became a Group this witness,
member of United Housing despite
India Insurance Society Ltd. opportunity
CGHS but never as on granted.
applied for 14.12.1981
membership as Delhi Ex.PW37/A.
Census.
Affidavit
dated
16.02.2004
Ex.PW44/A
given for
membership
35. PW45 Sh. Shiv Singh To prove that he was Affidavit This witness
Rawat a member of United dated was cross
India Insurance 16.02.2004 examined by
CGHS and never Ex.PW45/A accused
applied for given for Ashutosh Pant.
membership as Delhi membership
Census.
36. PW46 Smt. Vijay To prove that he was Affidavit The accused
Aggarwal a member of United dated persons did not
India Insurance 16.02.2004 avail the
CGHS and never Ex.PW46/A opportunity to
applied for given for cross examine
membership as Delhi membership this witness,
Census. despite
opportunity
being granted.
37. PW47 Sh. Chandan To prove that his Affidavit This witness
Singh on father late Sh. Paan dated was cross
behalf of his Singh was a 16.02.2004 examined by
father Late Sh. member of United in the name accused No.8
Paan Singh India Insurance of Sh. Paan Ashutosh Pant.
CGHS w.e.f. 1979 Singh, father
but had resigned of the
from its membership witness
in 1984 and never Ex.PW41/A
joined any other -8 given for
Housing Society. membership
of Delhi
Census
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 41 of 185
CGHS.
38. PW48 Ms. Indu Arora To prove that she has Photocopy This witness
been a member of of was cross
United India application examined by
Insurance CGHS form Mark accused No.8
since 1979 and never A/PW48. Ashutosh
took membership of Pant. .
any other Group Affidavit
Housing Society. dated
16.02.2004
Ex.PW41/A
-66 given
for
membership
of Delhi
Census
CGHS.
39. PW49 Sh. Suresh To prove that he has Photocopy The accused
Chand Jangla been a member of of persons did not
United India application avail the
Insurance CGHS form Mark opportunity to
since 1979 and never A/PW49. cross examine
took membership of this witness,
any other Group Affidavit despite
Housing Society. dated opportunity
16.02.2004 being granted.
Ex.PW41/A
-14 given
for
membership
of Delhi
Census
CGHS.
40. PW50 Sh. Sharad To prove that his Photocopy The accused
Aggarwal on father was not a of persons did not
behalf of father member of any Co- application avail the
Late Sh. operative Group form in the opportunity to
Dharam Chand Housing Society. name of Sh cross examine
Gupta Dharam this witness,
Chand despite
Gupta opportunity
(father of being granted.
the witness)
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 42 of 185
Mark
A/PW50.
Affidavit
dated
16.02.2004
in the name
of Dharam
Chand
Gupta
Ex.PW50/1
given for
membership
.
Attested
copy of
death
certificate of
Sh. Dharam
Chand
Gupta Mark
B/PW50.
41. PW54 Sh. Ved To prove that he Affidavit This witness
Sabharwal retired as Sr. dated was cross
Assistant from 16.02.2004 examined by
United India Ex.PW41/A accused
Insurance Company -50 given Ashutosh Pant.
and has been a for
member of United membership
India Insurance of Delhi
CGHS Census
CGHS.
** Photocopy of affidavit of Vishnu Rai dated 16.02.2004 which was
initially exhibited as Ex.PW19/C was during the deposition of PW25
Sh. Umesh Aggarwal allowed to be replaced by its original Ex. PW25/C
(On record in D-13).
6.1 Following witnesses were examined being the sanctioning
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 43 of 185
authority who passed the sanction orders as under:
S PW Name of witnesses To prove Document
No No.
1. PW4 Sh. Sanction order This witness was
R. Narayanaswami Ex. PW4/A cross examined by
qua accused accused P.K.
P.K. Thirwani. Thirwani. The
remaining accused
persons did not avail
the opportunity to
cross examine this
witness, despite
opportunity granted.
2. PW5 Brig. (Retired) Sanction order The accused persons
S.K. Chaudhary dated did not avail the
08.11.2006, opportunity to cross
Ex.PW5/A qua examine this witness,
accused Deen despite opportunity
Bandhu, LDC. granted.
3. PW39 Sh. Anil Mehra Sanction The accused persons
Ex.PW39/A did not avail the
qua accused R. opportunity to cross
B. Chauhan. examine this witness,
despite opportunity
granted.
6.2 PW31 Sh. Pradeep Kumar Kapoor, UDC was examined to
prove the signatures of accused Sita Ram Goyal (since deceased) having
seen him write and sign during his official duties. He identified the
signatures of accused Sita Ram Goyal (since deceased) as under:
Sl.No. File No. Nature of document Exhibit No.
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FIR No. RC-DAI-2005-A-0068 page no 44 of 185
1. D-12, Volume-I, Noting prepared on receipt Ex.PW31/A
F-47/128 from of application for revival. (Colly).
pages No. 1/N to
19/N in file Ex.
PW55/G (colly)
2. Page No. 138/C Order dated 05.02.2004 Ex.PW31/B
of D-1, Vol-I, passed by accused Sita
F-47/128 in file Ram Goyal (since
Ex. PW55/G deceased) for appointment
(colly) of accused Faiz Mohd. to
conduct physical
verification of members of
Delhi Census CGHS at
random and submit report
within three days.
3. Page No. 3/C to Notification No. Ex.PW31/C
5/C of D-12, F-47/128/Coop/GH/West/ (Colly)
Vol-I, F-47/128 42 dated 13.01.2004 sent
in file Ex. to Assistant Registrars of
PW55/G (colly) other Districts intimating
about the main file of
Delhi Census CGHS not
being traceable and
seeking reply from them
as to whether the file is
inadvertently lying in their
Zone.
Order No.
F.47/128/Coop/GH/W/40-
41 dated 13.01.2004 vide
which accused Faiz
Mohammad was appointed
as the Inspection Officer
to verify the records of the
Society and submit his
report within 15 days of
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FIR No. RC-DAI-2005-A-0068 page no 45 of 185
the order.
Letter No. F.47/128/Coop/
GH/W/78 dated 23.01.04
written by accused Sita
Ram Goyal (since
deceased) to the President/
Secretary of Delhi Census
CGHS directing him to
arrange for submission of
original records for re-
construction of the file.
4. Page No. 164 of Letter No. F.47/128/Coop/ Ex.PW31/D
D-12 Vol-I, GH/W/227-228 dated (Colly)
F-47/128 from 04.03.2004 sent by
pages No. 1/N to accused Sita Ram Goyal
19/N. (since deceased) to
Assistant Registrar
(Policy) forwarding the
list of 150 members of
Delhi Census CGHS
approved by the
competent authority for
onward transmission to
DDA for allotment of
land.
6.2.1 The witness also identified the signature of accused
Narayan Diwakar [on pages 5/N, 6/N and 18/N in the same file Ex.
PW55/G(colly) (D-12), Vol-I)]. He further identified the signature of
accused Narayan Diwakar on photocopy of order dated 01.03.2004 and
the order was marked as Mark A/31.The accused persons did not avail
the opportunity to cross examine this witness, despite opportunity being
granted.
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FIR No. RC-DAI-2005-A-0068 page no 46 of 185
6.3 PW51 Sh. Narendra Singh Khatri deposed on similar lines
as PW31 Sh. Pradeep Kumar Kapoor to prove his initials and of accused
Narayan Diwakar at pages 5/N, 18/N and 1/N of Ex. PW31/A (colly)
and that letter dated 30.01.2004 Ex.PW51/A signed by him at point A
was issued on approval of accused Narayan Diwakar2. The accused
persons did not avail the opportunity to cross examine this witness,
despite opportunity being granted.
6.4 PW52 Ms. Prem Gulati, UDC to prove signature of accused
Sita Ram Goyal (since deceased) at point A, his handwriting at point B,
initial of accused R. B Chauhan at point D on page 19/N of Ex.PW31/A
(Colly). She also identified the signature of accused Narayan Diwakar at
points B on pages 2/C, 4/C, 5/C, 138/C, 139/C to 144/C, 165/C and
169/C in Ex. PW31/C (colly) and of accused Sita Ram Goyal (since
deceased) at point A on page No. 2/C Ex. PW31/C (Colly). She further
identified the signature accused Sita Ram Goyal (since deceased) and
accused Narayan Diwakar on Ex. PW31/D (Colly) and Mark-A/31. In
addition she also tendered the following documents in evidence:
Sl. No. File No. Nature of document Exhibit No.
1. D-12, Vol-I, Inspection report under Ex.PW52/A.
F-47/128 from Section 54 of DCS
pages No.124C in Act,1972 of Delhi
file Ex. PW55/G Census Coop. Group
(colly). Housing Society Ltd.
2 Addressed to the President/Secretary of Delhi Census CGHS bearing Case No. RCS/021/04/130-
151
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FIR No. RC-DAI-2005-A-0068 page no 47 of 185
Regn. No.128 (GH).
2. D-12, Vol-I, Election of Managing Ex.PW52/B.
F-47/128 from Committee of Delhi
pages No.169C in Census Coop. Group
file Ex. PW55/G Housing Society Ltd.
(colly) WZ-1198/1, Main
Bazar, Rani Bagh,
Delhi.
This witness was cross examined by accused Narayan Diwakar. The
remaining accused persons did not avail the opportunity to cross
examine this witness, despite opportunity being granted.
6.5 PW32 Sh. Satya Prakash Sharma tendered the Production-
cum-Seizure Memo vide which he had handed over audit report of Delhi
Census CGHS from 1971-72 to 2002-03 to the CBI as Ex.PW32/A and
the audit file as Ex. PW32/B. This witness was cross examined by
accused P.K. Thirwani. Remaining accused persons did not avail the
opportunity to cross examine this witness, despite opportunity being
granted.
6.6 PW33 Sh. B.B. Vij testified that he had been residing at
House No. 103, Block-11, Subhash Nagar since 1978 and did not know
Sh. Kishan Chand Gupta shown as the member of Delhi Census CGHS
in Ex. PW23/B at Sl. No. 126 and denied that Sh. Kishan Chand Gupta
ever resided at 103/11, Subhash Nagar, New Delhi. He also denied that
any communication pursuant to UPC list Ex. PW19/D had been received
at his residence addressed to Sh. Kishan Chand. The accused persons
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FIR No. RC-DAI-2005-A-0068 page no 48 of 185
did not avail the opportunity to cross examine this witness, despite
opportunity being granted.
6.7 PW38 Sh Ashok Kumar to prove Production-cum-Seizure
Memo Ex. PW38/A vide which a letter No. F.1(Misc)/COS (HQ)/05/83
dated 30.03.2006 along with Non-Judicial Stamp Sale Register, were
handed over to the CBI. He tendered the letter bearing No.
F.1(Misc)/COS (HQ)/05/83 dated 30.03.2006 as Ex.PW38/B. However,
on 10.03.2014, his examination in chief was deferred at request of ld.
P.P. for the State (through CBI) for want of some document. Thereafter,
what is emerging from records is that the witness again appeared on
18.05.2022. Since, even then the document remained untraceable, he
was offered for cross-examination. The accused persons did not avail
the opportunity to cross examine this witness, despite opportunity being
granted to them.
6.8 PW41 Sh. Awanish Kumar to prove that he was a Sub
Vendor of stamps with Sh. P.R. Bhatia, Stamp Vendor and affidavit
Ex.PW41/A1 to Ex. PW41/A85 had been sold by him on 14.02.2004.
He also testified that one Sh. Anna Wankhade who used to get
documents typed from Ravi Robinson, Typist, was a regular purchaser
of stamp papers in bulk from the witness and other stamp vendors. The
accused persons did not avail the opportunity to cross examine this
witness, despite opportunity granted.
6.9 PW43 Sh. Virender Kumar Bansal, Assistant Registrar, Co-
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FIR No. RC-DAI-2005-A-0068 page no 49 of 185
operative Societies (Retired) to prove the procedures under DCS Act
1972, The Delhi Cooperative Societies Act 2005 and the Rules framed
there under for registration of New Group Housing Society, maintenance
of their business, audit of accounts, winding up and revival of
Cooperative Group Housing Society. Further, he also explained as to
how land is allotted to the group housing societies by the DDA. This
witness was cross examined by Ld. Counsels for accused Narayan
Diwakar, accused Faiz Mohd, accused R.B. Chauhan and accused P.K.
Thirwani. The remaining accused persons did not avail the opportunity
to cross examine this witness, despite opportunity being granted to
them.
6.10 PW53 Sh. Sanjeev Pathak (nephew of accused Munna Lal
Sharma) who claimed to be an insurance agent with Oriental Insurance
and LIC of India and in the past who has done electrical work in the
office of accused Munna Lal Sharma. He denied to have been a member
of Delhi Census CGHS or to have dealt with the work of the Societies.
He turned hostile and was cross examined by Ld. Public Prosecutor for
the State (through CBI). This witness was cross examined by accused
P.K. Thirwani. The remaining accused persons did not avail the
opportunity to cross examine this witness, despite opportunity being
granted.
6.11 PW55 Sh. S. C. Bhalla, Investigating Officer who deposed
regarding the investigation carried out by him and tendered the
following documents in evidence:
Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 50 of 185 Sl. Nature of document. Exhibited as Document No. No. 1. FIR RC-DAI-2005-A-0068 Ex.PW55/A D-1 dated 22.12.2005 2. Complaint dated 22.12.2005 Ex. PW55/B D-2 3. Production-cum-Receipt Ex. PW55/C D-3 Memo dated 10.01.2006 4. Letter dated 14.03.2006 Mark-PW55/1 D-4. issued by Sh. Umesh Kumar (Colly). Agarwal addressed to the IO alongwith photocopy of death certificate of Jai Narain. 5. Letter issued by accused Ex.PW55/D D-9. Munna Lal Sharma to SP CBI ACB, New Delhi 6. Letter dated 28.06.2006 Mark-PW55/2 D-10 issued by Sh. Sanjay Kotiyal (Colly). addressed to the IO along with photocopy of death certificate of S.R. Handa. 7. GEQD Report No. Ex.PW55/E D-17 DXC-305/2006. 8. Production-cum-Receipt Ex. PW55/F D-19 Memo dated 06.09.2006 9. Volume 1 file No. 47/128 Ex. PW55/G D-12 of Registrar Cooperative (Colly) Societies pertaining to Delhi Census CGHS. 10. Volume 2 File No. 47/128 of Ex. PW55/H D-13 Registrar Cooperative (Colly) Societies pertaining to Delhi Census CGHS. 11. Volume 3 File No. 47/128 of Ex. PW55/I D-14 CBI vs Narayan Diwakar and Ors. Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 51 of 185 Registrar Cooperative (Colly) Societies pertaining to Delhi Census CGHS. 12. File pertaining to Delhi Ex. PW55/J D-16 Census CGHS. (Colly) 6.11.1 He also relied upon the following documents: Sl. Nature of document. Exhibited as Document No. No. 1. Production-cum-Seizure Already D-8 Memo dated 31.03.2006. Ex.PW38/A 2. Production-cum-Seizure Already D-11 Memo dated 17.07.2006. Ex.PW32/A 3. Files pertaining to Delhi Already D-15 Census CGHS. Ex.PW32/B 4. Specimen signature/writing Already Part of of Ashutosh Pant from S-1 Ex.PW56/E. D-21. to S-1535.
This witness was cross examined by all accused persons.
6.12 PW56 Sh. S. Saha (Handwriting Expert) to prove the
following documents:
Sl. No. Nature of document. Exhibited as Document
No.
1. Letter dated 04.08.2006 Ex. PW56/A D-17
received by GEQD, (Objected to
Kolkata from SP CBI, on the mode
ACB, Delhi. of proof as the
said letter is
not on judicial
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FIR No. RC-DAI-2005-A-0068 page no 52 of 185
record and the
same was
produced by
the witness
during
deposition).
Objection is
overruled as
the permission
to take it on
record has not
been
challenged.
Also, it has
been relied
upon by the
defence to
show the
deficiencies in
the opinion of
the expert.
2. Opinion number Ex.PW56/B D-17
DXC-305/2006 dated
30.08.2006
3. Forwarding letter bearing Ex. PW56/C D-17
No. DXC-305/2006/1148
dated 30.08.2006
4. Reasons vide No. Ex.PW56/D D-17
DXC-305/2006. (Objected to
on the mode
of proof as the
said reasons
are not on
judicial record
and same was
produced by
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FIR No. RC-DAI-2005-A-0068 page no 53 of 185
the witness
during cross
examination).
However, in
the considered
view of this
Court, the
admissibility
and probative
value are
distinct
concepts. The
author himself
having proved
the same and
also, the
defence
counsels
reliance upon
the same to
assail the
opinion of the
expert, renders
the objection
futile. Thus,
objection is
overruled.
5. Specimen Ex.PW56/E. Part of
signature/writing of D-21.
Ashutosh Pant from S-1
to S-1535.
6. Forwarding letter dated Ex.PW56/
25.09.2006. DX1. (During
cross-
examination).
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6.12.1 He also relied upon the following documents:
Sl. No. Nature of Exhibited as Document
document. No.
1. Questioned already D-13
documents from Ex.PW41/A
Q-1 to Q-309
This witness was cross examined by Ashutosh Pant. The
remaining accused persons did not avail the opportunity to cross
examine this witness, despite opportunity being granted.
6.13 PW57 Sh. Sanjay Katyal to prove that he had provided
copy of death certificate of his father in law Sh. S. R. Handa to CBI vide
letter dated 28.06.2006 already Mark PW55/2 (Colly) (Part of D-10).
The accused persons did not avail the opportunity to cross examine this
witness, despite opportunity being granted.
6.14 PW58 Sh. Dhanesh Kumar Kakkar and PW59 Sh. Chob
Singh, independent witnesses in whose presence, specimen handwritings
/ signatures of accused Ashutosh Pant already bearing Ex.PW56/E
(Colly) had been taken. These witnesses were cross examined by Ld.
counsel for accused Ashutosh Pant. The remaining accused persons did
not avail the opportunity to cross examine this witness, despite
opportunity being granted.
6.15 PW40 Sh. Amar Das, Assistant Registrar in the Office of
RCS from 2005 to 2006 tendered his letter Ex. PW40/A (D-18) through
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FIR No. RC-DAI-2005-A-0068 page no 55 of 185
which he informed the Investigating Officer that registration register of
Delhi Census CGHS was not available in the office. However, copy of
registration certificate and revival order were already on file and their
original was not available. Despite opportunity he was not cross
examined by any of the accused persons.
7. Prosecution evidence was closed vide order dated
21.09.2003.
STATEMENT OF ACCUSED PERSONS UNDER SECTION 313
READWITH SECTION 281 CR.P.C.
8. Statement of accused Narayan Diwakar was recorded on
01.08.2023. He denied the incriminating evidences appearing against
him or claimed ignorance about the same. In his defence, he stated that
he had judiciously exercised his power as the Registrar of Cooperative
Societies in compliance of Vikas Co-Operative Group Housing Society
Ltd. Vs. Registrar Cooperative Societies & Others 3 as the winding up
proceedings, if not completed within three years of the winding up
orders, in view of Rule 105 of Delhi Cooperative Societies Rules, 1973
(hereinafter, referred to as ‘DCS Rules, 1973’), the winding up
proceedings automatically stood terminated. He also stated that sanction
under Section 19 of P.C. Act and under Section 197 Cr.P.C. had not been
obtained. He stated that both the sections are distinct and mandatory for
a retired public servant. He relied upon the amendment introduced in the
3 Civil Writ Petition 1767/1986 decided on 21.11.1986 by Delhi High Court
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year 2018 in P.C. Act which made it mandatory to seek sanction for
prosecution even for retired public servant. He urged that sanction being
a matter of procedure has retrospective effect. He also referred to M.
Soundararajan vs State4 to also state that in view of amendment in
paragraph 8 in part A of the Schedule to the Prevention of Money
Laundering Act, 2002 (hereinafter, referred to as ‘PMLA Act‘), certain
offences under P.C. Act are included in PMLA Act. Therefore, as the
offence alleged against the accused is analogous and already in statute
prior to the amendment, Chapter IV-A and Section 19 of P.C. Act, 2018
will fall away from the protection given under Article -20 (1) of the
Constitution of India.
8.1 Accused Faiz Mohammad when examined under Section
313 denied all the incriminating evidences against him. Qua the
testimonies of PW-25 (Sh. Umesh Agarwal), PW-26 (Sh. V. K. Taneja)
and PW-34 (Ms. Poonam Vasudeva) he pleaded that he used to verify
membership from the records of the Society and does not remember
whether he visited their given addresses to physically verify their
membership. He also stated that as per DCS Act, 1972, there is no
mandate for physical verification of members. He stated that he had
performed his duty in good faith. He mentioned that sanction under
Section 197 Cr.P.C. was mandatory qua him and even otherwise, he
pleaded protection under Section 95 of DCS Act, 1972. Summarily, he
also stated that his tenure with Govt. of NCT was untainted and that
4 Crl. A.(MD) No. 488 of 2018 and Crl. M.P. (MD) No. 8712 of 2018 decided on 30.10.2018 by
Madurai Bench of Madras High Court
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during trial of the present matter, no evidence had come on record to
reflect that the accused had obtained any pecuniary advantage or
cheated any person or used any forged document for cheating.
8.2 When statement of accused R. B. Chauhan was recorded on
10.07.2023, he denied the incriminating evidences appearing against
him and pleaded false implication and that witnesses had not stated
anything adverse against him. He challenged the order for sanction for
prosecution stating that PW-39 (Sh Anil Mehra) was not the competent
authority to remove the accused as at the relevant time, he was posted in
the office of RCS and also claimed that the order was without
application of mind.
8.3 Accused Deen Bandhu Prasad during his examination under
Section 313 on 01.08.2023 denied to have committed any of the alleged
offences. He stated that sanction for prosecution given by Brig. S. K.
Chaudhary (Retired) which is Ex. PW5/A was not given by competent
authority. He stated that he was LDC at the office of RCS and was
entrusted with the job of Diary and Dispatch. According to him, the
office bearers of Delhi Census CGHS had been elected unopposed and it
were the members of the Society who had visited the RCS office for the
election, who had prepared the requisite documents. He stated that he
had not violated the provision of DCS Act,1972 and DCS Rules, 1973.
He claimed that no departmental inquiry had been initiated against him.
He denied to have favoured any person or to have played any role in
revival of Delhi Census CGHS. He also claimed ignorance about the
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bogus records of the Society. He denied having demanded any bribe
from anyone. He asserted that he had discharged his duties in good faith
and was entitled to the protection under Section of DCS Act, 1972 and
no prosecution could be lodged against him.
8.4 Accused P.K. Thirwani was examined under Section 313
by the Ld. Predecessor of this Court on 10.07.2023. During
examination, he stated that sanction order under Section 19 of P.C. Act
(Ex. PW4/A) is not as per law as no receipt of document allegedly sent
by the CBI to the sanctioning authority has been proved. Also, as per
him, the order was mechanical and without application of mind. He
pleaded ignorance regarding the list of members of Delhi Census
CGHS. He also denied any role in the revival of Delhi Census CGHS
and claimed that the investigation was unfair, biased and manipulated.
He stated that he has been falsely implicated in the present case. He
stated that as a Departmental Auditor in the Audit Branch of the RCS
office from 13.05.2000 to 29.09.2004, it was his duty to conduct audit of
various societies. In the present case, the audit of Delhi Census CGHS
was marked to him by AR (Audit) Sh. J. S. Sharma after he obtained
approval from the RCS, for the period 1971-1972 to 2002 -2003.
Accordingly, he conducted the audit and submitted his report along with
deficiencies noticed by him, to the AR (Audit). He stated that he had
raised serious objections in his audit report which he would not have
done if he was in collusion, with anyone. He also stated that his report is
dated 15.12.2003 whereas, the freeze list of members of the Society was
already sent by AR (West) [then accused Sita Ram Goyal (since
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deceased)] to AR (Policy) (both at the RCS office) on 09.12.2003 for
onward transmission to the DDA. He stated that he was not in picture
till the revival of the Society and that since no land was allotted by the
DDA, no wrongful loss had been caused to anyone, as such, there is no
evidence of cheating or forgery or knowledge qua him. It has also been
submitted by him that there is no evidence of demand or obtainment of
pecuniary advantage and nothing incriminating was recovered during
search of his house. He claimed that he did his duty in good faith and
entitled to the protection under Section 197 of Cr.P.C. and under Section
19 of DCS Act, 1972.
8.5 Accused Munna Lal Sharma when examined under Section
313 by the Ld. Predecessor of this Court on 10.07.2023 claimed
ignorance about incriminating evidences put to him. He also stated that
he has been falsely implicated in the present case.
8.6 Accused Ashutosh Pant stated in his defence upon
incriminating evidence being put to him that he is innocent. He stated
that handwriting expert’s report Ex. PW56/B is not proper as it does not
justify the basis of his opinions. According to him, the reasons were
fabricated later and are full of contradictions. He also stated that the
investigation was perfunctory, biased, improper and shoddy. He also
claimed that his specimen handwritings/signatures had not been taken.
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9. In order to disprove the allegations, the accused persons
have summoned the following witnesses in their defence:
Sl. Defence witness To prove Documents, if
No. No. any
1. DW1 Sh. Yatin Sanction for prosecution Original file
Thapar, Assistant accorded against accused bearing No.
Section Officer, P.K. Thirwani. 7(A)/2/2006/DO
Directorate of V/part file
Vigilance and contains note
Anti Corruption, sheets from page
GNCT of Delhi 1/N to 17/N and
(summoned by correspondence
accused P.K. from page 1/C to
Thirwani.) 346/COriginal file
bearing No. and
7(A)/2/2006/DO
V contains note
sheets from page
1/N to 10/N and
correspondence
from page 1/C to
44/C.
2. DW2 Sh. Guru Sanction for prosecution File No.
Prasad Kardan, accorded against accused F3/709/05/DFW/
UDC, R. B. Chauhan (LDC) Estt/Pt containing
Department of one note sheet
Industries, Govt. pages 1/N and
of NCT of Delhi. 2/N along with
(summoned by correspondence
accused R.B. page No. 1/C to
Chauhan) 79/C.
3. DW3 Sh. Sanction for prosecution File No.
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Praveen Sharma, accorded against accused 5(10)/Vig./Ao.NC
Assistant Section Deen Bandhu Prasad, C/2014, Admn.
Officer, National UDC. Br/Vigilance Br.,
Cadet Corps, Chabiganj,
Headquarters, Kashmere Gate
Rohini, containing note
Sector-18,Delhi- sheet pages 1/N
89 to 7/N along with
(summoned by correspondence
accused Deen pages 1/C to
Bandhu Prasad) 47/C.
4. DW4 Sh. Saroj That accused Narayan Appreciation
Chandra Diwakar as the RCS had letter dated
Pradhan, lodged the website of the 25.07.2003 issued
Principal, Delhi office of RCS. by Smt. Shailaja
State Co- Chandra
operative addressed to Sh.
Training Center, N. Diwakar,
New Delhi. Registrar (Co-
(summoned by operative), Old
accused Narayan Court Building,
Diwakar). Parliament Street,
New Delhi,
Ex DW4/A.
5. DW5 Ms. Neha Letter No. Ex. PW5/1.
Kaushik, F.5/1/2006/Estt./Coop./35 (D-38)
Assistant 05 dated 18.10.2007
Ahlmad in the addressed by the Dy.
Court of ld. Registrar (Admn.), Govt.
Special Judge Of NCT of Delhi, Office
(P.C. Act) of the Registrar Co-
(CBI)-15, operative Societies,
RACC, New Parliament Street, New
Delhi. Delhi to Sh. S. K. Jha,
(summoned by Sub-Inspector of Police,
accused Raj CBI/EOU.IV, 5th Floor,
Bushan Block No. 03, CGO
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Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 62 of 185 Chauhan) Complex, Lodhi Road, New Delhi.
Information regarding the Ex. DW5/2 and
officers/officials and the Ex. DW5/3.
duty list of Registrar,
Joint Registrar, Deputy
Registrar, Assistant
Registrar etc .
FINAL ARGUMENTS
10. Final arguments on behalf of the State (through CBI) have
been led by Sh. Neel Mani, Ld. Public Prosecutor. He led the Court
through notings in file [(Ex. PW55/G (colly) (D-12), (Vol-I)] to
demonstrate the urgency with which the accused persons (who are
public servants) were dealing with the file suggestive of a predetermined
conspiracy alongwith accused Ashutosh Pant and accused Munna Lal
Sharma to revive Delhi Census CGHS on the basis of fabricated
documents. It has been canvassed that the hastiness with which the
reconstruction of the file was being considered is a circumstance which
cannot be ignored. For example, the Ld. Public Prosecutor for the State
(through CBI) drew the attention of the Court to noting dated
23.01.2004 [(on page no.2/N in file Ex. PW55/G (colly), (D-12), (Vol-
I)] to demonstrate that the fair letter to be issued to Delhi Census CGHS,
even before approval of re-construction of file had been ordered, shows
that the accused persons had the apparent intention to revive Delhi
Census CGHS. Thereafter, Ld. Public Prosecutor for the State (through
CBI) referred to inspection reports Ex.PW25/D and Ex.PW52/A
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prepared by accused Faiz Mohd. and argued that both the reports have
been established to be fabricated. It has been submitted that even though
PW Sh.Vishnu Rai, purported Secretary of the Society, could not be
examined, there still are other evidences to prove that the reports are
false. As regards report Ex.PW52/A, it has been submitted that the office
of Delhi Census CGHS was not found operational at WZ-1198/1, Main
Bazar, Rani Bagh, Delhi. Further, as regards report Ex.PW25/D, it has
been submitted that through the evidence of PW-25 (Sh. Umesh
Aggarwal), PW-26 (Sh. V.K. Taneja) and PW-34 (Smt. Poonam
Vasudeva), it has been proved that even though Sh J.K. Aggarwal, Sh.
V.K. Taneja and Ms. Poonam were shown as members of the Society
whose physical verification had been done, they were neither the
members of the Society nor had any physical verification being done
qua them. Thereafter, it has been submitted that the application for
revival of the Society [(page no. 1/C and 2/C of file Ex. PW55/G (colly)
(D-12), (Vol-I)] did not mention the name of the Secretary. However,
how did the accused persons discern that the Secretary of Delhi Census
CGHS / applicant was so called Vishnu Rai? It has been submitted that
noting dated 20.01.2004 [(page no. 5/N in file Ex. PW55/G (colly)
(D-12), (Vol-I)] mentions that the President of Delhi Census CGHS had
shown the documents/original records to the Assistant Registrar [then
accused Sita Ram Goyal (since deceased)] on the basis of which file had
been reconstructed by the Zone. However, Ld. Public Prosecutor for the
State (through CBI) submitted that there is no proceeding on record or
any other proof as to when the President had appeared before the
Assistant Registrar with the original record/documents. Hence, it has
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been submitted that all accused persons had connived with each other to
reconstruct the file on the basis of fabricated documents and revived the
defunct CGHS. So far as the role of accused P.K. Thirwani is concerned,
criminality in his acts have been inferred from the fact that audit report
since the year 1971-1972 to 2002-2003 were all prepared at one go and
all balance sheet and cash in hand certificates are print outs which was
not a medium for creating electronic records in the 1970s. Further, qua
accused Deen Bandhu Prasad, attention of the Court has been drawn to
CGHS Minutes of Meeting dated 28.08.2003 (Ex.PW34/C) along with
his election report (Ex.PW52/B) and to the testimonies of PW26 (Sh.
V.K. Taneja) and PW34 (Smt. Poonam Vasudeva) to show that neither of
them shown to have been elected to the post of Managing Committee,
had participated in the so called election of the Managing Committee
purportedly held on 04.04.2024. Qua the role of accused Ashutosh Pant,
much emphasis has been laid on the report Ex. PW56/B of the
handwriting expert PW56 (Sh. S.Saha) to urge that it has been
established that affidavits contained in file [(Ex. PW55/H (colly) (D-13),
(Vol-II)] of the office of Registrar of Cooperative Societies [(Ex.
PW55/H (colly) (D-13), (Vol-II)] and affidavits Ex. PW41/A-1 to Ex.
PW41/A-54, Ex. PW41/54A, Ex. PW41/A-55 to Ex. PW41/A-84,
Ex.PW18/A, Ex. PW29/A, Ex.PW27/A, Ex. PW28/A, Ex. PW15/A, Ex.
PW21/C, Mark DX/1, Mark DX, Mark DX2, Ex.PW44/A, Ex.PW20/C,
Ex. PW27/B, Ex.PW16/A, Ex. PW36/B, PW7/A, Ex. PW8/A,
Ex.PW24/A, Ex. PW13/A, Ex. PW12/A, Ex. PW17/A, Ex. PW19/G,
Ex. PW25/B, Ex. PW50/1, Ex. PW34/B, Ex. PW26/B, Ex. PW9/A, Ex.
PW6/8, Ex. PW35/A, Ex.PW14/A, Ex.PW23/A, Ex. PW10/A, Ex.
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PW11/A, Ex. PW25/C are not executed by the deponents and have been
forged by accused Ashutosh Pant. Also relying on letter Ex. PW55/D
(D-9) wherein accused Munna Lal Sharma acknowledged having
purchased the documents of Delhi Census CGHS from accused
Ashutosh Pant, it has been adumbrated that it is clinching enough to
prove conspiracy between them.
10.1 It has also been submitted that valid sanctions under
Section 19(1) P.C. Act qua accused P.K. Thirwani as Ex. PW4/A, qua
accused Deen Bandhu Prasad as Ex. PW5/A and accused R.B. Chauhan
as Ex. PW39/A have been obtained. So far as sanction under Section
197 (1) Cr.P.C. is concerned, it has been submitted that no such sanction
is warranted as committing offence of forgery and cheating cannot be in
discharge of official duty.
11. Final arguments on behalf of accused Narayan Diwakar
have been advanced on behalf of Counsel Sh. Abhishek Prasad. Written
submissions on his behalf have also been filed.
11.1 To begin with, attention of the Court was drawn to file [(Ex.
PW55/G(colly) (D-12), (Vol-I)] and in specific to noting part of Ex.
PW31/A(colly) [(Ex. PW55/G(colly) (D-12), (Vol-I)] which are dated
19.12.2004 and order dated 01.03.2004, passed by the accused as the
Registrar of Co-Operative Society. It has been argued that perusal of the
orders reveal that they were not only passed in the official capacity and
based upon justifiable grounds upon which the winding up order dated
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01.03.2009 (Mark A/31) has been cancelled. It has been vehemently
argued that except for the file noting, there is no iota of evidence
connecting the accused to the alleged conspiracy with the other accused
persons. It has been submitted that the orders upon which criminality is
attributed to the accused, were passed by him in discharge of his official
duty and for want of Sanction under Section 197(1) of Cr.P.C., the
accused could not have been summoned by the Court. Ld. Counsel
placing reliance upon Z.U. Siddiqui Vs. Bal Kishan Kapoor and Ors.5,
has argued that even if, the act complained of is malafide on the part of
the accused, the same remains to be an act done in discharge of his
official duty therefore, bar under Section 197 Cr.P.C. would be attracted.
Referring to Amal Kr. Jha Vs. State of Chattisgarh & Anr.6, it has been
further submitted that even any omission found to have been committed
by a public servant in discharge of his duty, should be given liberal and
vide construction so far as its official nature is concerned. Thereafter,
Ld. Counsel for the accused alluded to Surinderjit Singh Mand & Anr
Vs. State of Punjab & Anr.7 and vehemently submitted that the mandate
of Section 197(1) Cr.P.C. is clear and the cognizance could not have
been taken without sanction from the appropriate authority before
launching prosecution against the accused. The rigour of Section 197(1)
Cr.P.C. was further sought to be emphasized by drawing attention of the
Court to the latest judgment in Directorate of Enforcement Vs. Bibhu
Prasad Acharya, etc.8 wherein, the Apex Court has now also observed
5 2005 (82) DRJ 646
6 Criminal Appeal no. 396/2016 [Arising out of SLP[Crl.] No. 3584 of 2011] decided on
26.04.2016 by Supreme Court of India
7 Criminal Appeal No. 565/2016 (Arising out of SLP (Crl.) No. 3406 of 2008) decided on
05.07.2016 by Supreme Court of India
8 2024 INSC 843
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that cognizance of offence under Section 3 punishable under Section 4
of the PMLA also cannot be taken without a sanction under Section
197(1) Cr.P.C. for an act done in discharge of official duty. It has further
been adumbrated that it is no longer res integra that the question of
sanction under Section 197(1) Cr.P.C. can be raised at any time even
after the cognizance has been taken till the conclusion of the trial.
Relying upon Shreekantiah Ramayya Munipalli Vs. State of Bombay 9
Ld. Counsel for the accused has argued that the act alleged against the
accused could not have been done in any other way but in discharge of
his official duty and as a quasi judicial authority 10 and is thus, judicial
act which even if dishonest, could not have been taken cognizance of for
want of sanction under Section 197 (1) Cr.P.C. The purpose and
objective of Section 197 (1) Cr.P.C. was sought to be explained by
drawing attention of the Court to para no. 11 of Anjani Kumar Vs. State
of Bihar11 wherein it has been held as under :
“11. The protection given under Section 197 is to protect responsible
public servants against the institution of possibly vexatious criminal
proceedings for offences alleged to have been committed by them
while they are acting or purporting to act as public servants. The
policy of the legislature is to afford adequate protection to public
servants to ensure that they are not prosecuted for anything done by
them in the discharge of their official duties without reasonable
cause, and if sanction is granted, to confer on the Government, if they
choose to exercise it, complete control of the prosecution. This
protection has certain limits and is available only when the alleged
act done by the public servant is reasonably connected with the
discharge of his official duty and is not merely a cloak for doing the
objectionable act. If in doing his official duty, he acted in excess of
his duty, but there is a reasonable connection between the act and the
performance of the official duty, the excess will not be a sufficient
9 AIR 1955 SC 287
10 Relying upon Thakur Jugal Kishore Sinha Vs. Sitamarhi Central Co-Operative Bank Ltd. and
Anr., 1967 AIR 1494 decided on 13.03.1967
11 Appeal (Crl.) 413/2000 decided on 24.04.2008 by Supreme Court of India
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ground to deprive the public servant from the protection. The
question is not as to the nature of the offence such as whether the
alleged offence contained an element necessarily dependent upon the
offender being a public servant, but whether it was committed by a
public servant acting or purporting to act as such in the discharge of
his official capacity. Before Section 197 can be invoked, it must be
shown that the official concerned was accused of an offence alleged
to have been committed by him while acting or purporting to act in
the discharge of his official duties. It is not the duty which requires
examination so much as the act, because the official act can be
performed both in the discharge of the official duty as well as in
dereliction of it. The act must fall within the scope and range of the
official duties of the public servant concerned. It is the quality of the
act which is important and the protection of this section is available if
the act falls within the scope and range of his official duty. There
cannot be any universal rule to determine whether there is a
reasonable connection between the act done and the official duty, nor
is it possible to lay down any such rule. One safe and sure test in this
regard would be to consider if the omission or neglect on the part of
the public servant to commit the act complained of could have made
him answerable for a charge of dereliction of his official duty, if the
answer to his question is in the affirmative, it may be said that such
act was committed by the public servant while acting in the discharge
of his official duty and there was every connection with the act
complained of and the official duty of the public servant. This aspect
makes it clear that the concept of Section 197 does not get
immediately attracted on institution of the complaint case.”
11.2 Finally, relying upon A. Srinivasulu Vs. The State Rep. By
the Inspector of Police12, it has been submitted that it has now been
verified by the Apex Court as under :
“…..the observation contained in paragraph 50 of the decision of this
Court in Parkash Singh Badal vs. State of Punjab13. It reads as
follows:-
50. The offence of cheating under Section 420 or for that
matter offences relatable to Sections 467, 468, 471 and 120-B
can by no stretch of imagination by their very nature be
regarded as having been committed by any public servant
while acting or purporting to act in discharge of official duty.
In such cases, official status only provides an opportunity for
12 Criminal Appeal No. 2417 of 2010 decided on 15.06.2023
13 2007 (1) SCC 1
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commission of the offence.
49. On the basis of the above observation, it was contended by the
learned counsel for the respondent that any act done by a public
servant, which constitutes an offence of cheating, cannot be taken to
have been committed while acting or purporting to act in the discharge
of official duty.
50. But the above contention in our opinion is far-fetched. The
observations contained in paragraph 50 of the decision in Parkash
Singh Badal (supra) are too general in nature and cannot be regarded
as the ratio flowing out of the said case. If by their very nature, the
offences under sections 420, 468, 471 and 120B cannot be regarded as
having been committed by a public servant while acting or purporting
to act in the discharge of official duty, the same logic would apply
with much more vigour in the case of offences under the PC Act.
Section 197 of the Code does not carve out any group of offences that
will fall outside its purview. Therefore, the observations contained in
para 50 of the decision in Parkash Singh Badal cannot be taken as
carving out an exception judicially, to a statutory prescription. In fact,
Parkash Singh Badal cites with approval the other decisions (authored
by the very same learned Judge) where this Court made a distinction
between an act, though in excess of the duty, was reasonably
connected with the discharge of official duty and an act which was
merely a cloak for doing the objectionable act. Interestingly, the
proposition laid down in Rakesh Kumar Mishra (supra) was
distinguished in paragraph 49 of the decision in Parkash Singh Badal,
before the Court made the observations in paragraph 50 extracted
above.
51. No public servant is appointed with a mandate or authority to
commit an offence. Therefore, if the observations contained in
paragraph 50 of the decision in Parkash Singh Badal are applied, any
act which constitutes an offence under any statute will go out of the
purview of an act in the discharge of official duty. The requirement of
a previous sanction will thus be rendered redundant by such an
interpretation.”
Hence, it has been canvassed that the trial against the accused
stands vitiated.
11.3 On merits, after the Court was led through aforementioned
orders of the accused, it has also been adumbrated that there is no
illegality in them for the following reasons :
(a) Drawing the attention of the Court to Section 63(3) of DCS Act,
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1972 read with Section 105 of DCS Rules, 1973 and placing reliance
upon Vikas Co-Operative Group Housing Society Ltd. Vs. Registrar
Cooperative Societies & Others (supra), it has been submitted that even
if the winding up order dated 01.03.2004 (Mark A/31) had been passed,
there is no material on record to prove that the liquidation proceedings
had been taken to its logical end and thus, the only inference which can
be drawn is that after the order of winding up of Delhi Census CGHS
had been passed, the proceedings were neither closed within the
mandated period of 3 years (after expulsion) and as such would be
deemed to have been terminated and the society anyways stood revived.
(b) That the order categorically records the reasons upon which the
revival of the society was necessitated and is as per law.
(c) That the order mentions that as the Registrar of Co-operative
Society has relied upon reports which were duly forwarded by the
Assistant Registrar of Cooperative Society and after due application of
his mind and as the Registrar of Cooperative Society, which is a dispute
resolving authority (proved vide testimony of PW43 (Sh. Virender
Kumar Bansal), no role can be attributed to the accused in preparation of
the list of members and records of Delhi Census CGHS.
(d) That from the testimony of PW-55 (Inspector S.C. Bhalla), it is
further apparent that neither the aforementioned orders of the accused
were challenged before the appropriate forum (as is provided under law
qua dissatisfaction if any qua such orders) and there is no iota of
evidence of any personal gain or advantage had been received by the
accused.
(e) That by virtue of Section 93 (3) of DCS Act, 1972, the order of
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the RCS is not amenable to scrutiny before any Court and hence, the
merits of it cannot be adjudicated herein to affix liability upon the
accused. Further reliance has been placed upon the following
judgments :
(iii) The Jungpura Coop. Transport Dev. Society Vs. Govt of NCT of
Delhi and Ors.16
(v) Madhu Koda Vs. State through CBI18
(vi) Soma Chakravarty Vs. State through CBI19
(vii) Jose @ Pappachan Vs. the Sub-Inspector of Police, Koyilany &
Another20
12. Final arguments on behalf of accused Munna Lal Sharma
have been advanced on behalf of Counsel Sh. Anil Kumar. Written
submissions on his behalf has also been filed.
12.1 It has been argued that when the FIR was registered, the
accused was not mentioned, therein. It has further been argued that out
of the 59 witnesses examined by the prosecution, there is nothing
incriminating which has been brought on record qua the accused. It has
been adumbrated that the prosecution case qua the accused hinges upon
handwritten letter which is Ex. PW55/D (D-9). However, the said letter
14 2024 INSC 967
15 1996 AIR 901
16 W.P.(C) 13358/2004 decided on 11.09.2006 by High Court of Delhi
17 Crl Appeal no. 131/2007 decided on 10.05.2016 by Supreme Court of India
18 Crl. A. 1186/2017 decided on 22.05.2020 by High Court of Delhi
19 Crl. Appeal No. 710/2007 (Arising out of SLP (Crl.) no. 552/2006) decided on 10.05.2007 by
Supreme Court of India
20 Crl. Appeal no. 919/2013 decided on 03.10.2016by Supreme Court of India
21 Crl. M.C. 4572/2018, Crl. M.A. 31715/2018(stay) decided on 17.01.2025 by High Court of Delhi
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is stated to be inadmissible in evidence for not having been duly proved.
It has been submitted that during the investigation, there was no
specimen handwriting of the accused which had been taken and
subjected to forensic analysis. The only medium through which the
document came to be exhibited is the testimony of PW-55 (Inspector
S.C. Bhalla) and he was not competent to prove that it was in the
handwriting of the accused. Also, it has been submitted that documents
has interpolations where endorsements of purportedly, the then SP has
been made, therein. Also, the prosecution failed to lead any cogent
evidence to even substantiate the contents of the aforementioned letter
and as such there is no material on record which corroborates the
contents therein that the records of the society was sold to the accused
by co-accused Ashutosh Pant for a sum of Rs.4 lacs which was
subsequently, further sold by the accused to accused S.S. Chadha of
Reliance Properties for Rs.4.25 lacs. Also, it has been argued that even
though PW-55(Inspector S.C. Bhalla) deposed before the Court that the
endorsement, therein, was made by Sh. N.M. Singh, the then concerned
S.P. CBI. However, Sh. N.M. Singh was not examined and the custody
of the documents and how it was procured has not been established.
Additionally, it has been canvassed that the document would be
inadmissible in evidence being hit by Section 25 of The Indian Evidence
Act, 1892 (hereinafter, referred to as ‘The Evidence Act‘) having been
written by the accused to the police officials. Thereafter, the Court was
led through the testimony of PW53 [(Sh. Sanjeev Pathak) (nephew of
the accused)] and it has been submitted that the prosecution was unable
to elicit any incriminating material from his testimony and the witness
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did not support the case of the prosecution. Finally, on the aspect of
invocation of Section 120B of IPC, reliance has been placed upon Ram
Sharan Chaturvedi Vs. State of Madhya Pradesh 22 to emphasize the
principal ingredients of criminal conspiracy and how the same is
required to have been proved. It has been submitted that prosecution has
failed to substantiate all its allegations against the accused by leading
lead cogent and legally admissible evidence and there is no
incriminating circumstance which is reliable and clinching to form chain
of events which irresistibly points towards the guilt of the accused.
Hence, it has been submitted that the accused cannot be convicted on the
basis of mere conjectures and surmises and on fallible inference.
13. Dr. Sushil Kumar Gupta, Ld. Counsel for accused Ashutosh
Pant led arguments on his behalf. The challenge to the handwriting
expert’s report (Ex. PW-56/B) is two pronged. Firstly, the Ld. Counsel
for the accused has assailed the specimen handwritings / signatures
purportedly taken from accused Ashutosh Pant and sought to be proved
through PW58 (Sh. Dhanesh Kumar Kakkar) and PW-59 (Sh. Chob
Singh) in whose presence they were purportedly taken by urging (a)
That in all, during investigation there were about 1497 specimen
writings taken of which, 1435 specimens were purportedly taken from
accused Ashutosh Pant, therefore, it suggests biased investigation. (b)
That testimony of PW58 (Sh. Dhanesh Kumar Kakkar) is not reliable as
(i) during cross examination, he deposed that he had visited CBI Office
only once on 12.07.2006, whereas, drawing the attention of the Court to
22 Criminal Appeal No. 1066 of 2010
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the specimen Ex. PW56/E (colly), it was demonstrated that the template
on which the specimen writings23 have been taken is typed and mentions
that the specimen writings have been taken on 11.07.2006. (ii) He did
not check the identity of the person whose specimen writings were being
taken (iii) He could not explicate how the specimen writings were taken
i.e. whether on dictation or by seeing some paper or by on his own. (iv)
That some specimen sheets have also not been signed by him and the
Investigating Officer24. Also, it has been adumbrated that approximately
800 sheets signed by the witness were exhibited by him, all of the same
date and therefore, it is suggestive of the fact that no individual lest,
accused Ashutosh Pant would voluntarily write 800 pages in one day. As
regards, PW59 (Sh. Chob Singh), it has been argued that he too is not
reliable as (i) even though, he has stated that he has visited the CBI
Office twice for the purpose, all the specimen writings tendered by him
in evidence is of the same date. (ii) The witness deposed that he had
checked the ID proof of the persons whose sample writings were being
taken in his presence, however, it is evident from the arrest cum seizure
memo that on 13.07.2006 when accused Ashutosh Pant had been
arrested, no ID card was recovered from him. Therefore, the witness did
not truthfully depose. (iii) He deposed that sample writings were taken
on plain paper with nothing written or typed, thereon. However, the
papers on which the samples were taken were typed. (iv) The witness
also could not prove the signatures at points D on sheets S-91 to S-597
23 Sheets S-1 to S-89, S-49/1 to S-54/1, S85/1 to S-89/1, S-90, S-598 to S-262, S-262/1, S-627 to
S-708, S-708/1, S-709 to S-750, S-856 to S-863, S-863/1, S-864 to S-908, S-912 to S-932, S-936
to S-938, S-942 to S-944, S-948 to S-1049, S-1049/1, S-1050 to S1089, S-1090 to S-1459 [All
Part of Ex. PW56/E (colly)]
24 S-1090 to S-1459
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and S-797 to S-855 which are that of the Investigating Officer. (v) As
sheets S-91 to S-348, S-52 to S-363, S-367 to S-380, S-379/1, S-381 to
S-404, S-505 to S-597 were shown to have been signed on 13.07.2006
after cutting the typed dated of 11.07.2006 in the template on the top and
as S-751 to S-826 and S-830 to S-855 were dated 11.07.2006 and signed
by the witness on 13.07.2006, material contradiction emerged in his
testimony as to when the specimen writings witnessed by him actually
had been taken or that he had not been present during the process and
subsequently, signed the same. Additionally, Ld. Counsel for the
accused also, lamented on the casual manner in which the purported
specimen writings had been taken on account of contradictions in the
testimonies of the independent witnesses and of the Investigating
Officer and submitted that since there is enough material emerging from
record casting doubts on the voluntariness of accused Ashutosh Pant to
have even given the sample writings. Also, drawing the attention the
Court to the testimony of PW55 (Inspector S.C. Bhalla), as he admitted
that he had not enquired from Inspector Rajesh Kumar the source from
which he had collected Ex. PW55/C (D-3), that he had not arrested
accused Ashutosh Pant in this case, that specimen writings were taken
by shown accused the documents and asking him to give his writings
naturally, that no admitted writing and signature of accused Ashutosh
Pant were taken, as dates on S-91 to S-348/1, S-352 to S-363, S-367 to
S-404, S-505 to S-595 and S-1406 to S-1505 were over written without
being explained, as he admitted that S-984 and S-1090 to S-1458 were
not signed by him, S-1460 to S-1465, did not bear any date and S-1506
to S-1535 were neither signed by the witnesses nor the Investigating
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Officer, once again, the sample writings on which opinion was obtained
was casual, not voluntary and fabricated.
13.1 Reliance has been placed upon State of Rajasthan Vs. Dr.
J.P. Sharma25 and Amarjit Singh Vs. State of U.P. 26 to urge that the onus
is upon the prosecution to first establish that the specimen writings are
of the accused. Further, alluding to M. Durga Prasad Vs. State of A.P.27 it
has been impressed upon this Court that since the case is based upon
circumstantial evidence, the principles governing the appreciation of
evidence in a case of circumstantial evidence should be applicable and
yet again that conviction should not be based solely upon
uncorroborated testimony of the handwriting expert, moreso, as the
specimen signatures were not obtained in open Court but during
investigation by the CBI.
13.2 Secondly, Ld. Counsel for the accused then questioned the
report and urged the Court to discard the same on account of following
reasons:
(a) His reasons Ex. PW56/C were not a part of his opinions Ex.
PW56/B as it was not filed with the same and as such, the reasons were
subsequently fabricated.
(b) Even though, he did prepare rough notes but did not make it a part
either of his reasons or opinions.
(c) He admitted to have described / marked the documents by himself
25 1983 Crilj 858 decided on 01.03.1982 by Rajasthan High Court
26 1998 8 SCC 613
27 2003 (2) ALD (Crl) 545
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but not so appearing from his opinions / reasons and as such, the
outcome of the questionnaire given to him by the CBI changes. For
example Q-310 to Q-340 and Q-322A, Q-323A, Q-324A and Q-324/1
were not found on the judicial record. Thereafter, as per Annexure Ex.
PW56/A, only documents Q-1 to Q-324, Q 324A and Q-340 were sent
by the CBI whereas in the abstract of opinion Ex. PW56/B, the witness
has mentioned to have received exhibits Q-1 to Q-340, Q-322A to
Q-324 A and Q-324/1 and also admitted that Q-325 to Q-329 and
Q-322A, Q-323A and Q-324/1 were not mentioned in annexure A of
questionnaire Ex. PW56/A, though mentioned in the query sheet. Also,
specimen mentioned in case abstract in the report Ex. PW-56/B under
the heading of details of standard documents are from S-1 to S-1593,
S-49/1 to S-54/1, S-85/1 to S-89/1, S-379/1, S-626/1, S-708/1, S-863/1,
S-1049/1, S-1118/1 and S-1211/1 whereas S-49/1 to S-54/1, S-85/1 to
S-89/1, S-379/1, S-626/1, S-708/1, S-863/1, S-1049/1, S-1118/1 and
S-1211/1 do not find mention in Annexure B of Ex. PW56/A which the
witness stated are sub markings which were supplied alongwith original
standard documents and the said markings were given by the witness at
the time of the examination of the original documents. But thereafter,
the attention of the witness was drawn to Ex. PW56/DX1 which is dated
25.09.2006, only documents Q1 to Q-340, S-1 to S-404, S-505 to S-765,
S-767 to S-1170, S-1172 to S-1593 alongwith sub markings all in 567
sheets and one file running into 567 sheets had been returned to the
CBI.
(d) He admitted to have examined photocopies of documents, but did
not ascertain their source, admitted that line quality determination is
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difficult from photocopies and pen stroke, pen lifts, re-touching,
tremors, hesitation etc are difficult to determine from the photocopies.
(e) As, when the attention of the witness was drawn to Para 2 (10) of
his reasons Ex. PW56/D, he admitted that he had not mentioned the
alphabets of the words / signatures examined by him and even though he
volunteered that the reason reflected the overall execution, formation of
different letters and their commencement including combinations
alongwith underscoring and other features, he also admitted that he had
not recorded in his opinion the words “overall” and “other features”.
(f) Similarly, his reasons from Para 2 (1) to 2 (9) when questioned he
admitted that he has not mentioned the characteristics specifically word-
wise or letter-wise. Considering that, he has given opinion in general, it
has been advocated that his report is vague, inconclusive, incomplete
and should not be relied upon by this Court.
13.3 Thereafter, relying upon Malay Kumar Ganguly Vs. Dr.
Sukumar Mukherjee28, State of Himachal Pradesh Vs. Jai Lal29 and
Ramesh Chand Aggarwal Vs. Regency Hospital Limited 30, it has been
argued by the Ld. Counsel for the accused that this Court should not rely
upon the report of the handwriting expert as it is not supported by proper
reasonings and as from cross examination, the lack of expertise of the
witness is also exposed as he has ignored basic principles of comparison
of handwriting examination i.e. like is to be compared with like, as he
has given opinion on general features and he also defied the
28 (2009) 9 SCC 221
29 1999 7 SCC 280
30 (2009) 9 SCC 709
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fundamentals of handwriting examination as settled in Bhargav
Kundalik Salunkhe Vs. State of Maharashtra31 and Ravjaippa Vs.
Nilkanta Rao32. Reliance has also been placed upon Ram Narain Vs.
State of U.P.33, Fakhruddin Vs. State of MP 34, Devi Prasad Vs. State35,
Pandit Ishwari Prasad Misra Vs. Mohammad ISA36, Magan Bihari Lal
Vs. State of Punjab37, Padum Kumar Vs. State of U.P.38 and Murari Lal
Vs. State of M.P.39 to urge that opinion of the handwriting expert is not
conclusive evidence and should not be relied upon without
corroboration, in the facts and circumstances of the present case as
demonstrated above.
13.4 So far as the allegation against accused Ashutosh Pant of
having sold the fabricated documents of Delhi Census CGHS to accused
Munna Lal Sharma is concerned, it has been argued that the only
evidence to that effect which has been relied upon by the prosecution is
Ex. PW55/D (D-9) purportedly a letter written in 2004, by accused
Munna Lal Sharma to the Superintendent of Police. However, it has
been submitted that the letter if written in 2004, as portrayed leads to a
suggestion that it pre-empted the inquiry ordered by the Delhi High
Court and the pending FIR. Even otherwise, it is hit by Section 25 of
the Evidence Act being a confession given to the police officer and even
31 1995 SCC Online Bom 483
32 1960 SCC Online Kar 55
33 1973 2 SCC 86
34 AIR 1967 SC 1326
35 1964 SCC Online All 381
36 1962 SCC Online SC 88
37 1977 2 SCC 210
38 (2020) 3 SCC 35
39 1980, SCC (1) 704
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if, it is treated as a statement given to the police under Section 161 of
Cr.P.C., it is a signed statement contrary to the mandate of law under
Section 162 (1) of Cr.P.C. Also, the letter was sought to be proved by the
testimony of PW55 (Inspector S.C. Bhalla) and he was not competent to
prove the same as he was neither the author nor had it been written in
his presence. The source of the document also could not be established
by PW55 (Inspector Sh. S.C. Bhalla). Thus, the document not having
been proved and being inadmissible cannot be relied upon.
14. Sh. Abhishek Prasad, Ld. Counsel for accused P.K.
Thirwani has submitted on his behalf that prosecution has failed to
prove its case against accused P.K. Thirwani and he should be acquitted
of the offences he has been charged. Drawing the attention of the Court
to page no. 106 [(of file Ex. PW32/B, (D-15)], it has been argued that as
per the same, the accused was appointed as the auditor on 02.03.2004
whereas the revival order Mark A/31 was already passed on 01.03.2004.
Therefore, it has been canvassed that the audit report was never the
premise upon which the revival of Delhi Census CGHS was passed and
as such, there was also no meeting of minds of accused P.K. Thirwani
with the remaining accused persons. Thereafter, the Court was led to
Annexure ‘A’ from the brief summary of society given by the accused
P.K. Thirwani (running from pages no. 98 to pages no. 108) of file Ex.
PW32/B wherein, accused P.K. Thirwani gave 08 suggestions to
improve the shortcoming he had noted during the audit for the period
1971-1972 to 2002-2003 of Delhi Census CGHS. It has been submitted
that the prosecution did not examine even a single witness to prove that
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audit reports were false. The only relevant witness qua accused
P.K.Thirwani is PW32 (Sh. Satya Prakash Sharma) who merely proved
handing over of the files pertaining to Delhi Census CGHS [Ex.
PW32/B (D-15)] to the CBI vide production cum seizure memo dated
17.07.2006 (Ex. PW32/A). Further, it has been adumbrated that on page
no. 107 of file Ex. PW32/B, it can be observed that the audit report was
countersigned by Assistant Registrar (Audit) on 10.03.2004. Thus, it has
been suggested that the report is much later to the issuance of revival
order and was prepared under the supervision of the Assistant Registrar
(Audit) who has not even been examined by the prosecution in this case.
Finally, it has been also argued that the submission of the Ld. Public
Prosecutor that the auditing was done for 24 years at one go and
computerized balance sheets were prepared even though, for the relevant
periods, the use of computes were not known, it has been rebutted that
the accused has never denied that the audit report was prepared
subsequently and it has to be borne in mind that the society was under
liquidation pursuant to liquidation order dated 23.03.1979 till its revival.
Also, it has been submitted that since no land was allotted to Delhi
Census CGHS, they could not have been major financial transactions of
the society. Hence, it has been submitted that merely on the aforesaid
ground, the documents cannot be presumed to be fabricated when in
fact, the investigating agency did not seize any of the records of the
society like cash book, voucher etc to show that the reports were not
premised upon credible material.
14.1 Also, on the aspect of sanction under Section 19(1) of P.C.
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Act, the only witness examined is PW-4 (Sh. R. Narayanaswamy). It has
been submitted that perusal to his testimony shows that it is not apparent
that he had applied his independent mind to the grant of sanction for
prosecution as no material upon which his opinion was premised was
adduced in evidence. As regards sanction for prosecution under Section
197(1) of Cr.P.C., it has been reiterated that it was mandatory as what
ever was done by the accused was in discharge of his official duty. It has
been submitted that prosecution has not led any evidence to show any
criminality which can be attributed to accused P.K. Thirwani and the
least, if the report was deficient in any manner, the maximum that could
have been done was that departmental action could have been proposed
against accused P.K. Thirwani.
15. Sh. S.K. Bhatnagar, Ld. Counsel for accused Faiz Mohd.
has taken certain legal objections to the power of CBI to investigate the
matter and also as to whether by virtue of Section 5 of the IPC, offences
already catered to under DCS Act, 1972 could have been investigated
and taken cognizance of. It is his submission that CBI could not have
investigated the present allegations under Section 3 of the Delhi Police
Establishment act as there is no notification authorizing it to investigate
offences under DCS Act, 1972. Further, it has been submitted that DCS
Act, 1972 is comprehensive in itself which also provides for punitive
action under Section 82 of the Act and immunity from prosecution under
Section 95 of DCS Rules, 1973 to the RCS and its officials. Hence, it
has been canvassed that the initiation of criminal proceedings itself was
illegal. Thereafter, another legal proposition was put forth by him to the
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effect that statement under Section 313 Cr.P.C. condenses the evidence
recorded during trial and as per the same it is apparent that no evidence
of commission of offences under Section 15 read with 13(1)(d) read
with Section 13(2) of P.C. Act were put to the accused persons and as
such, it is apparent that no such incriminating material is available on
record.
15.1 On merits, it has been argued that accused Faiz Mohd. has
been attributed the role of preparing false inspection report in
furtherance of the conspiracy. However, it is submitted that as per
Section 63(3) of DCS Act, 1972, there is no requirement of seeking any
such inspection report to pass revival order nor are its modalities
mentioned anywhere, which the accused allegedly violated. Drawing the
attention of the Court to the revival order dated 01.03.2004 (Mark A/31)
it has further been submitted that it does not take into account the
inspection report of accused Faiz Mohd. and therefore, it could not be
said that his report was the premise upon which the revival of Delhi
Census CGHS took place. It has further been argued that Vishnu Rai the
purported secretary of Delhi Census CGHS was neither examined by the
prosecution during trial nor were his signatures/writings sent to CFSL
for examination. Also, it has been adumbrated that the list of the
members of Delhi Census CGHS was prepared on 03.02.2004 whereas
the physical verification by accused was done on 05.02.2004. The
physical verification report (Ex. PW25/D) is also not countersigned by
any of the officers of RCS office and thus, it has been once again
canvassed that his report was not material to the passing of the
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impugned revival order (Mark A/31). Further, it has been submitted that
PW-25 (Sh. Umesh Aggarwal) and PW-26 (Sh. Virender Kumar Taneja)
during cross-examination also could not explain how the ration cards
came into the possession of accused Faiz Mohd. and so, it could not be
definitively said that he did not conduct physical verification. It has
been submitted that there is no iota of evidence that Delhi Census
CGHS had become defunct as per Section 2(8) of The DCS Rules, 1973
and also, as per Section 93(3) of DCS Act, 1972, no revival order can
be challenged before any forum least by way of this case. It has been
argued that there is no evidence that the list of members was sent to
DDA or that the land was allotted or that any wrongful loss / gain had
been caused to anyone. It has been submitted that the conviction cannot
be premised upon presumptions and assumptions without credible
evidence. Finally, it has also been argued that sanction for prosecution
under Section 197(1) fo Cr.P.C. should have been taken as the accused
was acting in discharge of his official duties. It has also been
adumbrated that there is no iota of material brought on record that
accused Faiz Mohd. made any demand of bribe or received any bribe.
To sum up, it has been argued that no departmental enquiry was also
ever recommended by CBI against accused Faiz Mohd.
16. On behalf of accused R.B. Chauhan, written submission
dated 23.09.2024 has been filed and has been relied upon. As per the
written submissions, it has been averred that the prosecution has
miserably failed to prove its case against the accused even on the test of
preponderance of probabilities even though, they were required to prove
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it beyond reasonable doubts. It is stated that none of the prosecution
witnesses have established that the accused submitted a suggested note
in the file of Delhi Census CGHS which he dealt with in routine as the
LDC. It is stated that there is no documented procedure / rule or
convention established, orally, that the file of Delhi Census CGHS was
required to be processed in a particular manner and therefore, there has
been illegality in the actions of the accused also, the prosecution has not
proved any law/ rule/ circular/ guideline mandating physical verification
of resigned and enrolled members and to verify the correctness of the
documents produced by the Society by the Dealing Assistant (LDC).
Relying upon cross examination of PW55 (Inspector S. C. Bhalla), it has
been stated that no complaint had been received against the accused,
during investigation and that no departmental action had been
recommended against the accused.
16.1 Much emphasis has been made upon the role of the accused
as the Dealing Assistant (LDC) as in such capacity, he was at the lowest
rank and had produced the notes without any addition or concealment
before his superior Assistant Registrar. He has relied upon duty chart
Ex.DW6/A (colly)40 to show that he was carrying out work assigned by
the Superior Officers. He has therefore, stated that the Society had
shown records to the Assistant Registrar (West), the directions were
issued by the RCS to the Assistant Registrar (West) for verification of
the records of the Society and to conduct spot verification which as per
proceedings dated 19.02.2004, was claimed by the Assistant Registrar
40 However, no such document was tendered in evidence.
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(West) to have been done by him and the revival order dated
01.03.2004 was passed by the RCS on such verification of records
claimed by the Assistant Registrar (West) and therefore, no role is
attributable to the accused. Thereafter, objection has been raised for
want of sanction for prosecution under Section 197 (1) Cr.P.C. to urge
that the accused had executed his official duties and as such, the act or
omission, if any, is indisputably traceable to the discharge of his official
duties. He has relied upon Indra Devi vs. State of Rajasthan and Anr. 41
and State of Rajasthan vs Yogesh Acharya42 to argue that protection
Under Section 197(1) Cr.P.C is available to the junior most placed
employee.
16.2 It has been also averred that there is no evidence on record
to show that the accused had any knowledge about the alleged forgery of
documents. It has also been stated that there is no evidence on record to
prove that the accused demanded or obtained or attempted to obtain any
pecuniary advantage for himself or any other person. Thus, relying upon
K.R. Purushothaman vs. State of Kerala 43 it is stated that the accused
cannot be convicted for commission of offence under Section 13(1)(d)
of P.C. Act.
16.3 A contentious issue according to the accused is also the
sanction order (Ex.PW39/A) issued under Section 19(1) of P.C. Act.
41 Criminal Appeal No. 593 of 2021 [ Arising out of SLP (Crl) No. 1605 of 2018 D. No.7196 of
2019] decided on 23.07.2021 by Supreme Court of India
42 (Vide which the Court gave protection as provided u/s 197 Cr. P.C to Jr. placed employee (Clerk).
43 (2005) 12 SCC 631
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Relying upon CBI vs Ashok Kumar Aggarwal44, State of Tamilnadhu vs
M.M. Rajendran45, Vineet Narain & Ors. vs Union of India & Anr.46,
Mansukhlal Vithaldas Chauhan vs State of Gujarat47, Circular No.
21/33/98-PD dated 06.05.1999 and the CBI Manual, it has been averred
that the sanction order is without application of mind and cannot be
acted upon due to following reasons:
(a) DW2 Sh. Guru Prasad Kardam produced the file bearing No.
F3/709/05/DFW/Estt/Pt regarding Sanction for prosecution of accused
R. B. Chauhan (LDC), containing one note sheet pages 1/N and 2/N
along with correspondence page No. 1/C to 79/C which establishes that
the draft sanction order sent by the CBI was signed by the sanction
authority without going through the relevant document.
(b) The prosecution failed to establish that entire relevant facts qua
the accused had been placed before the sanctioning authority.
(c) Except SP’s report, no relevant material particularly the note
prepared by the accused/applicant in the file of revival of Delhi Census
CGHS, was placed before and discussed by the sanctioning authority.
(d) The sanction order sent by the CBI was placed before the
sanctioning authority on 02.11.2006 by the Dealing Assistant by
inserting the name and designation of the sanctioning authority at the
blank portion of the concluding page of the draft and thereafter, the
sanctioning authority had merely signed on it and no order number is
also mentioned thereupon.
44 Criminal Appeal No. 1838 of 2013 decided on 22.11.2013 by Supreme Court of India
45 (1998) 9 SCC 268.
46 AIR 1998 SC 889.
47 (1997) 7 SCC 622.
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16.4 Further, relying upon State of Maharashtra Through Deputy
Superintendent of Police ACB Nagpur vs Devidas 48, it has been stated
that signing of a mere draft sanction order indicates non-application of
mind. Also, referring to Shri Anand Murlidhar Salvi vs The State of
Maharashtra49, it has also been stated that conviction cannot be sustained
if the draft sanction order was prepared by the junior officer of the
sanctioning authority who merely carried out grammatical corrections
and did not apply his mind and consciously scrutinized the records.
Also, alluding to Nanjappa vs State of Karnataka50, it has been canvased
that question of validity of sanction under Section 19(1) of P.C. Act can
be raised at any stage as it goes to the competency of the Court trying
the matter.
16.5 Apart from assailing the sanction order (Ex. PW39/A) on
the ground of non-application of mind, it has also been challenged for
not having been issued by the competent authority as during the relevant
period when the alleged offence is stated to have occurred, the accused
was officiating as the LDC at the office of the RCS and therefore, only
the RCS would be the competent authority to remove him from service.
16.6 Finally, on the aspect of conspiracy, placing reliance upon
K.R. Purushottam Vs. State of Kerala 51 and Ram Sharan Chaturvedi vs
48 Criminal Appeal No. 345 of 2002 decided on 08.09.2014 by High Court of Judicature of
Bombay, Nagpur Bench
49 Crl. Appeal No. 1107 of 2004 decided on 23.02.2021 by High Court of Judicature at Bombay
Criminal Appellate Jurisdiction
50 Crl. Appeal No. 1867 of 2012 decided on 24.07.2015 by Supreme Court of India
51 Criminal Appeal No. 495 of 2004 decided on 25.10.2005 by Supreme Court of India
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The State of Madhya Pradesh52, it has been argued that the prosecution
has failed to complete the chain of events to rule out a reasonable
likelihood of innocence of the accused and therefore, conviction for
offence of conspiracy cannot be premised upon conjectures and
surmises.
17. On behalf of accused Deen Bandhu Prasad, Ld. Counsel Sh.
S. K. Bhatnagar has argued that the role assigned to him in the criminal
conspiracy is to have given a false election report that Ex. PW52/B
whereby, the following office bearers were elected in the Managing
Committee of Delhi Census CGHS on the basis of elections held on
04.04.2004:
Sl. For the post of Name of the candidates MS
No. No.
1. President Sh. Vishnu Rai 118
2. Vice President Sh. N.D. Pathak 111
3. Managing Committee Member Sh. Dharam Chand 114
4. Managing Committee Member Sh. Rakesh Sharma 106
5. Managing Committee Member Sh. V. K. Taneja 120
6. Managing Committee Member Smt. Poonam 119
7. Managing Committee Member Smt. Uma Gupta 117
17.1 It has been canvassed that the report was submitted on
07.04.2004 which is much after the order of revival which is dated
01.03.2004 and therefore, there is no nexus of actions or meeting of
mind with remaining accused persons, which has been proved by the52 Criminal Appeal No. 1066 of 2010 decided on 25.08.2022 by Supreme Court of India
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prosecution. Relying upon note on page No. 19/N [in file Ex.PW55/G
(colly) (D-12), (Vol-I)], it is stated that the report was considered on
13.04.2004 and was merely taken on record. Thereafter, it has been
submitted that the report has been assailed to be false. However, it has
been argued that there is no material evidence adduced by the
prosecution to establish that the report Ex.PW52/B was false. It is stated
that it has not been proved as to what rules and modalities were required
to have been followed by the accused which have been violated. It has
thereafter, being submitted that the report mentions that the election was
unopposed and therefore, there was no occasion for casting a votes. The
Ld. Counsel for the accused alluded to previous election proceedings
dated 05.10.2003 to submit that procedure followed was similar. It has
been submitted that the affidavit furnished by the members of the
Managing Committee have not been proved to be false as even the
Notary, who attested those affidavits has been cited or examined as a
witness.
17.2 Once again, it has been argued that sanction for prosecution
under Section 197(1) Cr.P.C. was mandatory qua the accused who
admittedly, is a public servant and was discharging his duty when he
conducted the elections. It has also been submitted that sanction under
Section 19(1) of P.C. Act is not valid as firstly, it has not been issued by
the competent authority who by virtue of Section 19(2) of P.C. Act, was
not competent to remove the accused from service at the time the
offences are alleged to have been committed and secondly, it has been
issued mechanically with no application of mind as even there is no
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evidence of what documents were put up before the sanctioning
authority.
17.3 It has also been submitted that due process of law has not
been followed causing miscarriage of justice as there is no explanation
for non-compliance of Section 5 of IPC, Section 82 (3) and Section 95
of DCS Act, 1972 and Section 197 and Section 314 of Cr.P.C. It has
been submitted that as the CBI did not recommend any vigilance action
against the accused, it implies that there was no criminality imputed
upon the accused.
17.4 So far as the allegation of attempt to commit offences is
concerned, relying upon Malkiat Singh vs State of Punjab53 it has been
submitted that since mere sending of the list of members to DDA, would
not have been sufficient for allotment of land and as, payment was
required to be made and there is no evidence to establish that there was
guarantee of payment for the allotment of land, the penultimate act was
not complete to invoke even the allegations of attempt.
18. During the course of rebuttal arguments, Ld. Public
Prosecutor for the State (through CBI) placed reliance upon the
following judgments:
(a) Choudhury Praveen Sultana vs State of West Bengal 54, Prakash
Singh Badal and Anr. vs State of Punjab and Ors.55, Sambhoo Nath53 AIR 1970 SC 713
54 2009 Cri. L.J 1318, decided by Supreme Court on 07.01.2009
55 Appeal (Civil) 5636 of 2006 decided by SC on 06.12.2006
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Misra vs State of U.P.56, Rakesh Kumar Mishra vs State of Bihar and
others57, Amal Kumar Jha vs State of Chhatisgarh 58, Station House
Officer, CBI/ACB /Bangalore vs B.A. Srinivasan and Anr. 59, K. Satwant
Singh vs State of Punjab60, Raghunath Anant Govilkar vs State of
Maharashtra61 and Harihar Prasad vs State of Bihar62 to urge that
sanction under Section 197(1) Cr.P.C. is not required in the present case
as it is not in discharge of official duty that the accused persons (who
occupied public officers) entered into a conspiracy to indulge in criminal
activities.
(b) Chittaranjan Das vs State of Orissa63 to submit that sanction under
Section 19 of P.C. Act is not necessary qua public servants if they have
retired.
(c) State of Maharashtra vs Sukhdeo Singh,64 Yash Pal Mittal vs
State of Punjab65, State of Tamilnadu vs Nalini and 25 others 66, Kehar
Singh vs State (Delhi Admin.)67, Baliram, Tikaram Marathe vs
Emperor68, Bimbadhar Pradhan vs The State of Orissa 69 and Noor
Mohammad Mohd. Yusuf Momin vs State of Maharashtra 70 to explain
how conspiracy can be proved as it is hatched in private or in secrecy
56 Appeal (Crl.) 318 of 1997 decided by SC on 14.03.1997
57 Appeal (Crl.) 12 of 2006, decided by the SC on 03.01.2006
58 AIR 2016 Supreme Court 2082
59 Criminal Appeal No. 1837 of 2019 decided by the Supreme Court of India on 05.12.2019.
60 1960 Crl. L.J 410, Supreme Court decided on 28.10.1959
61 2008 AIR SCW 1375, Special Leave Petition (Crl. ) 5453 of 2007 decided by the Supreme
Court on 08.02.2008
62 (1972) 3SCC89 decided by the Supreme Court of India
63 2011 Cri. L. J 4306 decided by Supreme Court on 04.07.2011.
64 1992 AIR 2100 Supreme Court decided on 15.07.1992
65 1977 AIR 2433
66 (1999) 5 SCC 253
67 1988 AR 1883 SCC
68 Crl Appeal No. 176, 209, 210, 211, 212 decided by the Court of Nagpur on 02.11.1944.
69 1956 AIR 469
70 1971 AIR 885
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and it is not material that each conspirator would be known to the other,
as even though, they worked with unity of object or purpose, there may
be plurality of means achieving the goal.
(d) Murari Lal vs State of M.P. (supra) to canvas that the report of the
handwriting expert without corroboration can be accepted.
(e) Ashok Debbarma @ Achak Debbarma vs State of Tripura 71 and
Collector of Customs, Madras and others vs D. Bhoormul 72 to expound
that the meaning of “beyond reasonable doubt” in criminal
jurisprudence does not imply proof of impossible.
(f) Ram Narayan Popli vs CBI 73to define forgery,
(g) Neera Yadav vs CBI74 and Runu Ghosh vs CBI75 on what
constitute criminal misconduct on the part of public servants.
ANALYSIS, APPRECIATION OF EVIDENCE AND REASONS
19. As the Court now proceeds to analyze the charge and
evidence adduced to prove the same, it would be expedient to
recapitulate alleged acts of the accused persons step by step.
19.1 Admittedly, the genesis of cancellation of the winding up
order dated 01.03.2004 (Mark 31/A) of Delhi Census CGHS is an
application dated 27.12.2003 [(pages no. 1/C and 2/C of file Ex.
PW55/G(colly) (D-12), (Vol-I)], purportedly, submitted by the Secretary
71 Criminal Appeal Nos. 47-48 of 2013 decided by The Supreme Court of India on 04.03.2014.
72 1974 AIR 859
73 AIR 2003 Supreme Court 2748
74 AIR 2017 Supreme Court 3791
75 Crl. A. 482/2002 decided on 21.12.2011 by High Court of Delhi
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of Delhi Census CGHS before the RCS and copy submitted to the
Assistant Registrar (West) vide diary no. 2591 dated 09.01.2004 [page
2/C of file Ex. PW55/G (colly) (D-12), (Vol-I)]. (It is the case of the
prosecution that the said letter has not been issued by Sh. Vishnu Rai,
the so called Secretary of Delhi Census CGHS but has been forged by
accused Ashutosh Pant and it was he who appeared before the RCS by
impersonating as Vishnu Rai.)
19.2 Thereupon, it was marked to Assistant Registrar (West)
accused Sita Ram Goyal (since deceased) by RCS accused Narayan
Diwakar [as per page no. 1/N of file Ex. PW55/G(colly) (D-12), (Vol-I),
also Ex. PW31/A (colly)]. The Dealing Assistant i.e. accused R.B.
Chauhan vide note dated 09.01.2004 put up the file before Assistant
Registrar (West) accused Sita Ram Goyal (since deceased) and the note
said as under :
“May kindly see the PUC received from the Secretary of the society
reg cancellation of wind-up order and approve the list of members
of Delhi Sensus CGHS Ltd., WZ-1198/1, Main Bazar, Rani Bagh,
Delhi. The society vide PUC requested that they already removed all
the short-comings on which the wind-up order were issued,
therefore the society may be revived.
It is submitted here that the main file of the society is not
available in the zone. If agreed, we may issue circular to all zones in
this regard & in the meantime we may also initiate inspection u/s 54
of the DCS Act, 72 to verify the present status of the society.
Submitted for approval of ‘XA’ pl.”
19.3 Thereafter, on 13.01.2004, accused R.B. Chauhan put up
the note [page no. 2/N of file Ex. PW55/G(colly), (D-12), (Vol-I)]
recording as under :
“As approved on pre-page, accordingly circular is placed apposite for
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sig. pl. Further as regard to inspection u/s 54 is concerned, we may
appoint Sh. Faiz Mohd, Gr-III(N/W) as an Inspection Officer to verify
the records of the society & submit the report within 15 days.
Accordingly letter is also placed apposite for approval/ sig, pl.”
and Assistant Registrar (West) accused Sita Ram Goyal (since deceased)
signed the draft circular on the same date i.e. on 13.01.2004. The
circular no. F.47/128/Coop/GH/West/42 dated 13.01.2004 [(page no.
3/C of Ex. PW55/G(colly), (D-12), (Vol-I)] was issued by Assistant
Registrar (West) accused Sita Ram Goyal (since deceased) requiring the
other branches / zonal offices of the office the RCS to trace the file of
Delhi Census CGHS and report the same to the West Zone within a
week or else, it would be presumed that no such file is lying with them.
19.4 On 13.01.2004, order [(Page 4/C, of file Ex. PW55/G
(colly) (D-12), (Vol-I)] was also issued, appointing accused Faiz Mohd.
as “Inspecting Officer” to verify the records of the Society and submit
his report within 15 days of this order.
19.5 Thereafter, on 23.01.2004 accused R.B. Chauhan put
another note [(page 2/N in file Ex. PW55/G (colly), (D-12), (Vol-I)] as
under:
“May kindly see a circular dtd 13-1-04 (P-3/C) was issued to all zones
after getting approval from Competent Authority at 1/N, to search
their zones & returned the main file, if found, within one week, since
the main file of the society was not available, but till date, no
reference is received from any zone in this regard.
In view of the aforesaid & as per approval of the Competent
Authority dtd 9-1-04 (P-1/N), if agreed, we may go ahead accordingly
& the society may be requested to submit / furnish the original records
alongwith copy of Registration Certificate, Bye-laws & other relevant
documents of the society for the reconstruction of the file of the
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society.
Fair letter to society is also placed apposite for approval / sig.
pl.”
and Assistant Registrar (West) i.e. accused Sita Ram Goyal (since
deceased) noted “Issue Pl.” on the same date. Accused Faiz Mohd., on
27.01.2004 submitted his report [(page no. 124/C of file Ex. PW55/G
(colly) (D-12), (Vol-I), also Ex. PW52/A)] as under :
“To
The Asst. Registrar (West)
Cooperative Societies,
Govt. of NCT of Delhi,
Parliament Street,
New Delhi – 110001.
SUB:- Inspection Report U/s 54 of Delhi Coop. Societies Act, 1972
of the Delhi Sensus Coop. Group Housing Society Ltd.
Regn.No.128(GH)Sir,
In compliance of this office order no. F.47/128/GH/Coop/W/41
dated 13.01.2004 vide which under signed was appointed an
Inspecting officer submission are as under :
1. I have visited at the office address of the society i.e. WZ-1198/1,
Main Bazar, Rani Bagh, Delhi on 16.01.2004 and there I met Sh.
Vishun Rai, Secretary of the Society.
2. Sh. Vishnu Rai, Secretary of the Society informed that no
liquidation order has been received by the society from RCS officer,
it is only came to know when he was visited at RCS office to know
the status of the society.
3. As per record of the society the office address of the society was
shifted from Opp. 1242, Laxmi Bai Nagar, New Delhi to
WZ-1198/1, Main Bazar, Rani Bagh, Delhi vide managing
committee resolution passed on 03.05.77 and subsequently approved
by Special General Body meeting held on 17.07.77.
4. The Membership Register is complete in all respect.
5. The Audit of the society is pending since its registration i.e.
31.05.72 and the copy of unaudited accounts from 31.05.72 to
31.03.2003 enclosed.
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6. The proceeding register is also complete and the last Managing
Committee meeting was held on 21.12.2003.
7. As per the records of the society the last election was held
on05.10.2003 as per DCS rules (copy of General Body Meeting
enclosed).
8. All the society records are found under the safe custody of the Sh.
Vishnu Rai, Secretary of the society.
Dated : 27-1-04
– sd –
(Sh. Faiz Mohd.)
Inspecting Officer
Encl : 1. As mentioned above.
2. Inspection Report”
This report has been endorsed on 27.01.2004 by Assistant Registrar
(West) accused Sita Ram Goyal (since deceased) stating as “urgently put
up on file” .
19.6 Relying upon the inspection report Ex. PW52/A [(page no.
124/C, of file Ex. PW55/G(colly), (D-12), (Vol-I)], a note dated
28.01.2004 [(page no. 3/N, of file Ex. PW55/G(colly), (D-12), (Vol-I)]
was put up by accused R.B. Chauhan as Dealing Assistant and it
mentions the findings of the report and in addition, stipulates that the
Secretary of Delhi Census CGHS had submitted photocopy of the
Registration Certificate, Bye-laws of the Society and Minutes of first
meeting of the promoters. Permission was sought for taking the
aforesaid documents on record to reconstitute the file mentioning about
the revival letter and that the Secretary of Delhi Census CGHS had
stated that all the short-comings has been removed on the basis of which
the Society has been wound-up. He noted that the file of the Society
may be forwarded to the RCS for consideration and request to revive the
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Society under Section 63 of DCS Act, 1972 and initiate quasi judicial
proceedings in this regard. Upon the same, Assistant Registrar (West)
accused Sita Ram Goyal (since deceased) stated that ” for kind
consideration of the Ld. RCS, the details are test checked and found to
be in order. For order Pl.” and the file was sent to the Reader to the
RCS. As per note dated 20.01.2004 (page no. 5/N, of file Ex.
PW55/G(colly), D-12, Vol-I), Reader to the RCS sought permission of
accused Narayan Diwakar, RCS for issuance of notice to the President /
Secretary of the Society for initial hearing on 03.02.2004 before the
RCS. The same was approved by the RCS on 30.01.2004 [(page no.
5/N, of file Ex. PW55/G(colly), (D-12), (Vol-I)]. Thereafter, on
03.02.2004 [(page no. 6/N of file Ex. PW55/G(colly), (D-12), (Vol-I)],
the proceedings recorded are as under :
“Sh. Vishnu Rai, Hony, Secretary of the society present.
Reader is directed to send the file to the concerned zone for
verification of records pertaining to membership, audit and election.
Besides, concerned AR is directed to conduct a spot verification of
member and submit the report to this court.
In view of above, case is adjourned for 19.02.2004.”
19.7 On 04.02.2004, the matter was marked by the Assistant
Registrar (West) accused Sita Ram Goyal (since deceased) to the
Dealing Assistant accused R.B. Chauhan to put up a note dated
05.02.2004 alongwith the draft of order for spot verification. Assistant
Registrar (West) accused Sita Ram Goyal (since deceased) thereupon,
endorsed it stating that “Fair is signed Ask Mr. Faiz Mohd, Gr-III to
expedite Pl.” on 05.02.2004. Accordingly, accused Faiz Mohd.
submitted his report dated 09.02.2004 [(in file Ex. PW55/I(colly)
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(D-14), (Vol III) also Ex. PW25/D)] which stated as under :
“In compliance to your letter/order dtd 05-2-04 the undersigned
visited the residence the residence of the following members of the
Society as per list submitted by the Society and they have
confirmed that they are the member of the Delhi Sensus CGHS and
also given the photocopy of their residence proof:-
s.no. M.No. Name of the
Member
01. 120 VK Taneja
02. 112 JN Aggarwal
03. 111 ND Pathak
04. 113 RP Sharma
05. 115 DG Gupta
06. 117 Uma Gupta
07. 119 Poonam
08. 118 Vishnu Rai
09. 121 Mahender Kumar
19.8 Subsequently, the Dealing Assistant accused R.B. Chauhan
put up the case for revival of Delhi Census CGHS relying upon copies
of the Registration Certificate, registered Bye-laws [(page no. 125 to
page no. 130 of file Ex. PW55/G(colly), (D-12), (Vol-I)], liquidation
order dated 23.03.1979 [(page no.132 of file Ex. PW55/G(colly),
(D-12), (Vol-I)], application for cancellation of winding up order dated
01.03.2004 [(page no. 1/C to page no. 2/C of file Ex. PW55/G(colly),
(D-12), (Vol-I)] and copy of minutes of meeting of the Special General
Body Meeting dated 05.10.2003 [(page no. 109 to page no. 113 of file
Ex. PW55/G(colly), (D-12), (Vol-I)], six point affidavit of President /
Secretary [(page no. 152 to page no. 153/C of file Ex. PW55/G(colly),
(D-12), (Vol-I)], inspection report of accused Faiz Mohd. dated
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27.01.2004 [(page no. 123/C to page no. 124/C of file Ex.
PW55/G(colly), (D-12), (Vol-I)], Bye-laws [(page no.125/C to page no.
130/C of file Ex. PW55/G(colly), (D-12), (Vol-I)], list of 150 members
Ex. PW23/B [(page no.139/C to 144/C of file Ex. PW55/G(colly),
(D-12), (Vol-I)], consolidated list of members as on 30.06.1986 [(page
no. 211/C to page no. 214/C of file Ex. PW55/I(colly), (D-14), (Vol-
III)], photocopy of application of members [(page no. 1/C to 136/C of
file Ex. PW55/I (colly), (D-14), (Vol-III)], photocopies of receipts of
share money [(page no. 137/C to 203/C of file Ex. PW55/I (colly),
(D-14), (Vol-III)], photocopies of minutes of managing committee
meetings in which enrollments of members were approved (Mark
36/X-2) [(page no. 204/C to 210/C of file Ex. PW55/I (colly) (D-14),
(Vol-III)], spot verification report of accused Faiz Mohd. [(Page no.
235/C, of file Ex. PW55/I(colly) also Ex. PW25/D, (D-14), (Vol-III)],
affidavits of 150 members [(page no. 1/C to page no. 150/C of file Ex.
PW55/H(colly) (D-13), (Vol-II)], affidavits [(page no. 145/C to page no.
150/C of file Ex. PW55/G(colly), (D-12), Vol-I)] and affidavit of the
Secretary of the Society [(page no. 151/C of file Ex. PW55/G(colly),
(D-12), (Vol-I)], unaudited accounts of society of March, 2003 [(page
no. 6/C to page no. 102/C of file Ex. PW55/G(colly), (D-12), (Vol-I)],
agenda notice dated 25.08.2003 for holding of Special General Body
Meeting of Society on 05.10.2003 [(page no. 116/C to page 114/C of file
Ex. PW55/G(colly), (D-12), (Vol-I)] and service proof of agenda notice
to all members of the society [(Page no.103/C to 108/C of file Ex.
PW55/G(colly), (D-12), (Vol-I)] to withdraw liquidation order dated
23.03.1979 and for revival of the society and approval of final list of
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150 members [(page no. 7/N to page no. 17/N of file Ex. PW55/G
(colly) (D-12), (Vol -I)]. The note dated 16.02.2004 was endorsed on
17.02.2004 by Assistant Registrar (West) mentioning ” for kind perusal
and approval of the RCS, N. Delhi” and sent to the Reader of the RCS.
On 19.02.2004, a hearing was held before the RCS and the following
order was passed :
“Sh. Vishnu Rai, Hony. Secretary of the Society present.
The concerned zonal AR is also present and stated that an inspection
U/s 54 of the DCS Act, 1972 was done by an Inspector of the
Department who has given his favorable report. He further stated that
he has checked up and verified each and every paper submitted by
the society. The society has also submitted list of members as on
date. The documents regarding holding of election are also
scrutinized and found the same in order and as per DCS Act and
Rules. He further stated that the society has prepared its books of
accounts and submitted un-audited accounts till 31.03.2003. The
concerned zonal officer finally recommended the case for the revival
of the society.
The winding up order passed by the then Dy. Registrar shows
that proper procedure was not followed while winding up the society
as the reasons given were not adequate for initiating such an extreme
step for winding up the society. If there was any mis-management in
the society, it was appropriate to initiate action U/s 32 for setting the
right working of the Society and then restoring the cooperative
management. Such orders for winding up without proper application
of mind is not conducive for revitalization and re-strengthening of
the cooperative movement in Delhi.
During the course of arguments, the Secretary of the society
also mentioned that Dy. Registrar who had passed order U/s 63 of
DCS Act, 1972 was not competent to decide the matter U/s 63.
There is nothing on record that such powers U/s 63
exercisable by Registrar were delegated to the Dy. Registrar by the
competent authority. It appears that during the time order was passed,
large number of societies were wound up without any valid and
convenient reasons. It also appears that the society was not given
sufficient opportunity either to reply to the SCN issued or to rectify
the shortcomings mentioned in the notice issued by the RCS.
In view of the above, case is reserved for orders.”
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The detailed order dated 01.03.2004 was also subsequently, placed on
the file. The letter was then marked by Assistant Registrar (West)
accused Sita Ram Goyal (since deceased) to the Dealing Assistant i.e.
accused R.B. Chauhan on 03.03.2004, who as per the note dated
03.03.2004 drafted the letter to Assistant Registrar (Policy) which was
thereafter, signed and directed to be issued by Assistant Registrar (West)
i.e. accused Sita Ram Goyal (since deceased), on 04.03.2004.
19.9 On 13.04.2004, another note was put up by the Dealing
Assistant accused R. B. Chauhan [(page no.19/N of file Ex.
PW55/G(colly), (D-12), (Vol-I)] stating that the Election Officer
accused Deen Bandhu Prasad has submitted his report alongwith list of
elected members of the managing committee and the same was to be
approved to be taken on record by Assistant Registrar (West) accused
Sita Ram Goyal (since deceased).
19.10 Accused Deen Bandhu Prasad gave his report Ex. PW52/B
on 07.04.2004, as per which, he reported that he was appointed as
Election Officer vide Order bearing Case No. RCS/021/04/306-011
dated 01.03.2004 [(page no 159/C to 163/C of file Ex. PW55/G(colly),
(D-12), (Vol-I) also Mark A/31)] and he had conducted the election on
04.04.2004 and results had been pronounced on the same day and the
minutes of the Special General Body Meeting [(page 167 of file Ex.
PW55/G(colly), (D-12), (Vol-I) also Ex. PW34/C)], had been recorded.
According to the election result, the following persons had been
appointed as Office Bearers in the managing committee of Delhi Census
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CGHS :
S.No. Name of Member M.No. Post
1. Vishnu Rai 118 President
2. N.D. Pathak 111 Vice-President
3. V.K. Taneja 120 Member
4. Dharam Chand 114 -Do-
5. Uma Gupta 117 Member (Women)
6. Poonam 119 -Do-
7. Rakesh Sharma 106 Member
19.11 A letter which had been issued to Assistant Registrar
(Policy) Ex. PW31/D dated 04.03.2004 bearing no.
F.47/128/Coop/GH/W/227-28 [(page no. 164/C of file Ex.
PW55/G(colly), (D-12), (Vol-I)] was also sent by the Assistant
Registrar (West) accused Sita Ram Goyal (since deceased).
ALLEGATIONS OF FORGERY, USE OF FORGED DOCUMENTS
AND CONSPIRACY TO FORGE AND USE FORGED
DOCUMENTS.
20. As per the prosecution, letter for revival of Delhi Census
CGHS [(pages 1/C and 2/C of file Ex. PW55/G(colly), (D-12), (Vol-I)],
affidavits of purported members contained [(in file Ex. PW55/H(colly)
(D-13), (Vol-II)], application forms [(page no. 1/C to page no 136/C of
file Ex. PW55/I(colly), (D-14), (Vol-III)], subscription receipts [(page
no. 137/C to page no. 203/C of file Ex. PW55/I(colly) (D-14), (Vol-III)],
minutes of meeting of Delhi Census CGHS and list of members of Delhi
Census CGHS are false documents.
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20.1 The allegations in specific are that accused Ashutosh Pant
has forged 150 affidavits of different persons for which he is facing trial
under Section 468 IPC. Accused Ashutosh Pant and accused Munna Lal
Sharma have been charged for criminal conspiracy of forging and using
the affidavits, fake membership records and other documents for
reviving the society and thus to have cheated the office of RCS. All
accused persons are also facing charges of criminal conspiracy for
forgery and use of forged documents. Thus, it is material to first delve
upon what constitutes the offence of forgery and the use of forged
documents.
20.2 Section 467, 468 and 471 of IPC stipulate as under :
“467. Forgery of valuable security, will, etc.–Whoever forges a
document which purports to be a valuable security or a will, or an
authority to adopt a son, or which purports to give authority to any
person to make or transfer any valuable security, or to receive the
principal, interest or dividends thereon, or to receive or deliver any
money, movable property, or valuable security, or any document
purporting to be an acquittance or receipt acknowledging the
payment of money, or an acquittance or receipt for the delivery of
any movable property or valuable security, shall be punished with
[imprisonment for life], or with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to
fine.
468. Forgery for purpose of cheating.–Whoever commits forgery,
intending that the 1 [document or electronic record forged] shall be
used for the purpose of cheating, shall be punished with
imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.
471. Using as genuine a forged document or electronic record.–
Whoever fraudulently or dishonestly uses as genuine any
[document or electronic record] which he knows or has reason to
believe to be a forged 3 [document or electronic record], shall be
punished in the same manner as if he had forged such [document
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or electronic record].”
20.3 While defining forgery, the Apex Court in Md. Ibrahim &
Ors. Vs. State of Bihar & Anr.76, has held as under :-
“9. The term “forgery” used in these two sections is defined in
section 463. Whoever makes any false documents with intent to
cause damage or injury to the public or to any person, or to
support any claim or title, or to cause any person to part with
property, or to enter into express or implied contract, with intent
to commit fraud or that the fraud may be committed, commits
forgery. Section 464 defining “making a false document” is
extracted below :
“464. Making a false document.-A person is said to make a false·
document or false electronic record –
First.-Who dishonestly or fraudulently –
(a)makes, signs, seals or executes a document or part of a
document;
(b)makes or transmits any electronic record or part of any
electronic record;
(c)affixes any digital signature on any electronic record;
(d)makes any mark denoting the execution of a document or the
authenticity of the digital signature, with the intention of causing it
to be believed that such document or a part of document,
electronic record or digital signature was made, signed, sealed,
executed, transmitted or affixed by or by the authority of a person
by whom or by whose authority he knows that it was not made,
signed, sealed, executed or affixed; or
Secondly.-Who, without lawful authority, dishonestly or
fraudulently, by cancellation or otherwise, alters a document or an
electronic record in any material part thereof, after it has been
made, executed or affixed with digital signature either by himself
or by any other person, whether such person be living or dead at
the time of such alternation; or
Thirdly.-Who dishonestly or fraudulently causes any person to
sign, seal, execute or alter a document or an electronic record or to
affix his digital signature on any electronic record knowing that
such person by reason of unsoundness of mind or intoxication
cannot, or that by reason of deception practised upon him, he does
not know the contents of the document or electronic record or the
nature of the alteration.
Explanation 1 – A man’s signature of his own name may amount to
76 (Criminal Appeal No.1695 of 2009) (2009) 13 (ADDL.) S.C.R. 1254
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forgery.
Explanation 2 – The making of a false document in the name of a
fictitious person, intending it to be believed that the document was
made by a real person, or in the name of a deceased person,
intending it to be believed that the document was made by the
person in his lifetime, may amount to forgery.
[Note: The words ‘digital signature’ wherever it occurs were
substituted by the words ‘electronic signature’ by Amendment Act
10 of 2009).”
The condition precedent for an offence under sections 467 and
471 is forgery. The condition precedent for forgery is making a
false document (or false electronic record or part thereof). This
case does not relate to any false electronic record. Therefore, the
question is whether the first accused, in executing and registering
the two sale deeds purporting to sell a property (even if it is
assumed that it did not belong to him), can be said to have made
and executed false documents, in collusion with the other
accused.
10. An analysis of section 464 of Penal Code shows that it divides
false documents into three categories:
(10.1.) The first is where a person dishonestly or fraudulently
makes or executes a document with the intention of causing it to
be believed that such document was made or executed by some
other person,· or by the authority of some other person, by whom
or by whose authority he knows it was not made or executed.
(10.2.) The second is where a person dishonestly or fraudulently,
by cancellation or otherwise, alters a document in any material
part, without lawful authority, after it has been made or executed
by either himself or any other person.
(10.3.) The third is where a person dishonestly or fraudulently
causes, any person to sign, execute or alter a document knowing
that such person could not by reason of (a) unsoundness of mind;
or (b) intoxication; or (c) deception practised upon him, know the
contents of the document or the nature of the alteration.
11. In short, a person is said to have made a ‘false document’, if (i)
he made or executed a document claiming to be someone else or
authorised by someone else; or (ii) he ‘ a document; or (iii) he
obtained a altered or tampered document by practicing deception,
or from a person not in control of his senses.”
20.4 To drive home the criminality of act of forgery, it is
incumbent upon the prosecution to prove beyond reasonable doubt (a)
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that the document is false (b) that the accused has prepared the false
document (c) with the intention to defraud.
21. For convenience, the alleged forged documents can be
classified as under :
(a) Application for revival of Delhi Census CGHS [(page 1/C and
2/C of file Ex. PW55/G (colly) (D-12), (Vol-I)]
(b) Photocopies of applications for membership [(file Ex. PW55/I
(colly)(D-14 Vol-III)]
(c) Subscription receipts [(in file Ex. PW55/I (colly)(D-14), (Vol-III)]
(d) Affidavits of purported member making declarations of being
eligible to become a member of Delhi Census CGHS [(Ex.
PW55/H(colly) (D-13), (Vol-II)]
(e) Minutes of Meeting dated 16.08.1972, 09.11.1972, 10.01.1973,
15.03.1973, 21.05.1973 and 16.08.1977.
(f) Consolidated list of members of Delhi Census CGHS (Ex.
PW19/F)
(a) Application for revival of Delhi Census CGHS [ (page no. 1/C
and page no. 2/C of file Ex. PW55/G (colly) (D-12), Vol-I)]
21.1 To begin with, the application for revival is stated to have
been forged and moved by accused Ashutosh Pant, impersonating as
Vishnu Rai. However, no evidence has been led on the aforesaid aspect.
The best evidence to prove the same, could have been examination of
PW Vishnu Rai however, he could not be examined on behalf of the
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prosecution as on account of his medical condition, the witness was
dropped from the array of witnesses vide order dated 28.07.2022 77 at
request of Ld. Public Prosecutor for the State (through CBI). The other
means to have established that the letter was forged by accused
Ashutosh Pant was either the report of a handwriting expert or a witness
who was acquainted with the handwriting and signature of Vishnu Rai
but no such evidence was tendered by the prosecution during trial.
Further, by examination of any other witness who was present during
hearing before the RCS, it could have been established that accused
Ashutosh Pant had appeared before the RCS impersonating as Vishnu
Rai. But, no evidence has been gathered other than the statement of PW
Vishnu Rai during investigation and the same could not be proved.
Hence, there is no iota of material to establish that the application for
revival of Delhi Census CGHS has been forged and that accused
Ashutosh Pant is the author of the application for revival of Delhi
Census CGHS (on page 1/C and 2/C of file Ex. PW55/G (Colly) (D-12
Vol-I) impersonating as PW Vishnu Rai.
(b) Photocopies of applications for membership [(file Ex. PW55/I
(colly) (D-14), Vol-III)]
21.2 The next set of documents purportedly forged are the set of
photocopies of applications for membership contained in file [Ex.
PW55/I(colly), (D-14), (Vol-III)]. Through the examination of PW19
(Sh. G.K. Gupta), PW20 (Sh. V.S. Chopra), PW21 (Sh.Hari Singh),
77 Witness was summoned on 11.02.2021, 05.07.2022 and 28.07.2022 but it was reported that he
was confined to bed and on liquid diet. Further, that he was not able to speak and was frail.
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PW22 (Sh. N.P. Upadhyay), PW25 (Sh. Umesh Aggarwal), PW26 (Sh.
Virnder Kumar Taneja), PW30 (Sh. S.P. Chatwal), PW34 (Ms. Poonam
Vasudeva), PW35 (Sh. P. Raman), PW36 (Sh. Umed Singh), PW42 (Sh.
K.S. Gandilok), PW48 (Ms. Indu Arora), PW49 (Sh. Suresh Chand
Jangla) and PW50 (Sh. Sharad Aggarwal), it has been demonstrated by
the prosecution that application forms Ex. PW19/A, Ex. 20/A, Ex.
PW21/A, Ex. PW22/A, Ex. PW25/A, Ex. PW26/A, Ex. PW39/A, Ex.
PW34/A, Ex. PW35/B, Ex. PW36/A, Ex. PW42/A, Mark A/PW48,
Mark A/PW49 and Mark A/PW50 are false documents as they have not
been given by the purported applicants. However, there is no iota of
evidence vide which prosecution has been able to establish that the
application forms have been forged by accused Ashutosh Pant, only, as
from the questionnaire Ex. PW56/A, it is observed that no examination
of the handwriting on the application forms was sought and PW56 (Sh.
S. Saha) has also during his testimony not proved the same to have been
written by either accused Ashutosh Pant or accused Munnalal Sharma.
Therefore, there isn’t material on record to conclusively opine that
accused Ashutosh Pant and accused Munna Lal Sharma, only have
prepared the false application forms in furtherance of their conspiracy.
An objection has been taken qua mode of proof of some of the
applications namely Ex. PW19/A, Ex. PW20/A, Ex. PW21/A, Ex.
PW22/A, Ex. PW25/A, Ex. PW26/A, Ex. PW36/A and Ex. PW42/A.
The aforesaid applications forms part of report Ex. PW25/D submitted
by accused Faiz Mohd. who also as the Inspecting Officer claimed that
he had checked the Society records (as mentioned in Ex. PW52/A) and
found them to be in the custody of Sh. Vishnu Rai. However, it has been
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the case of the prosecution that during investigation the original records
were not recovered and accused Ashutosh Pant only, had impersonated
as Vishnu Rai, the non production of original application forms has been
sought to be explained by the prosecution. Even otherwise, the
documents have been marked for identification and it has sufficiently
been established that they have not been given by the mentioned
applicants. Hence, the objection stands overruled.
(c) Subscription receipts [(in file Ex. PW55/I (colly) (D-14), (Vol-
III)]
21.3 The other set of documents which are claimed by the
prosecution to be false are the subscription receipts contained in file
[(Ex. PW55/I (colly), (D-14), (Vol-III)]. Once again testimonies of
PW19 (Sh. G.K. Gupta), PW20 (Sh V.S. Chopra), PW21 (Sh. Hari
Singh), PW22 (Sh. N.P. Upadhyay), PW25 (Sh. Umesh Aggarwal),
PW26 (Sh. Virender Kumar Taneja), PW36 (Sh. Umed Singh) and
PW42 (Sh. K.S. Gandilok) are not controverted to the effect that copies
of subscription receipts Ex.PW19/B, Ex. PW20/B, Ex. PW21/B, Ex.
PW22/C and Ex. PW42/B respectively, have not been issued to them
and no payments have been made by them against the receipts.
Therefore, the factum that the receipts are false documents has been
established. The genuineness of the receipts is also assailed in view of
the fact that all the aforementioned witnesses have not been traversed on
their testimonies that they have never applied to become a member of
Delhi Census CGHS and therefore, the occasion for them to have paid
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the subscription fees would not have arisen against which the
subscription receipts have purportedly been issued.
21.4 Fabrication of the subscription receipts has been attributed
to accused Ashutosh Pant in conspiracy with accused Munna Lal
Sharma in furtherance of a larger conspiracy with other accused persons
to revive Delhi Census CGHS based upon the false documents.
Therefore, the next onus which the prosecution is required to discharge
is that the subscription receipts have been made by accused Ashutosh
Pant and accused Munna Lal Sharma. However, from the questionnaire
Ex. PW56/A, it is observed that no examination of the handwriting on
the subscription receipts was sought and PW56 (Sh. S. Saha) has also
during his testimony not proved the same to have been written by either
accused Ashutosh Pant or accused Munna Lal Sharma. Therefore, there
isn’t material on record to conclusively opine that accused Ashutosh
Pant and accused Munna Lal Sharma, only have prepared the false
subscription receipts in furtherance of their conspiracy.
(d) Affidavits of purported member making declarations of being
eligible to become a member of Delhi Census CGHS [(Ex.
PW55/H(colly), (D-13), (Vol-II)]
21.5 To prove that the declaratory affidavits contained in file
[(Ex. PW55/H(colly), (D-13), (Vol-II)], are false documents, the
evidence led can be categorized as under :
(a) Evidence of witnesses who have deposed that the either they or their
family members have not affirmed the affidavits. PW1 (Sh. AmarCBI vs Narayan Diwakar and Ors.
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Singh), PW2 (Sh. Sansar Chand Sharma), PW3 (Sh. Mangat Ram), PW6
(Sh. Ajay Jain) to PW30 (Sh. S.P. Chatwal), PW34 (Ms. Poonam
Vasudeva) to PW36 (Sh. Umed Singh), PW42 (Sh. K.S. Gandilok),
PW44 (Sh. E.S.N. Moorthy) to PW50 (Sh. Sharad Aggarwal) and PW54
(Sh. Ved Sabharwal) have testified that affidavits Mark X, Mark X/1,
MarkX2, Ex. PW6/B, Ex. PW7/A, Ex. PW8/A, Ex. PW9/A, Ex.
PW10/A, Ex. PW11/A, Ex. PW12/A, Ex. PW13/A, Ex. PW14/A, Ex.
PW15/A, Ex. PW16/A, Ex. PW17/A, Ex. PW18/A, Ex. PW19/G, Ex.
PW20/C, Ex. PW21/C, Ex. PW22/B, Ex. PW23/A, Ex. PW24/A, Ex.
PW25/B, Ex. PW26/B, Ex. PW27/A, Ex. PW28/A, Ex. PW29/A, Ex.
PW34/B, Ex. PW35/A, Ex. PW36/B, Ex. PW41/A-54A, Ex. PW44/A,
Ex. PW45/A, Ex. PW46/A, Ex. PW41/A8, Ex. PW41/A-66, Ex.
PW41/A-14, Ex. PW50/1 and Ex. PW41/A50, respectively are
therefore, false documents.
(b) PW 41 Sh. Awanish Kumar (sub-vendor of stamp papers working
with Sh. P.R. Bhatia, vendor of stamps), has deposed that the affidavits
(Ex. PW41/A1 to Ex. PW41/A85, Ex. PW36/B, Ex. PW6/B, Ex.
PW7/A, Ex. PW8/A, Ex. PW9/A, Ex. PW10/A, Ex. PW11/A, Ex
PW24/A, Ex. PW13/A, Ex. PW12/A, Ex. PW13/B, Ex. PW14/A, Ex
PW17/A, Ex. PW19/G, Ex. PW23/A and Mark X2) are on stamp papers
purchased in bulk by one person whose name the witness could not
recall. (The prosecution has also examined PW38 Sh. Ashok Kumar to
prove that the aforesaid affidavits had been issued to stamp vendor Sh.
PR Bhatia however, as already recorded above, the non judicial stamp
sale register remained untraceable during trial and the witness was
offered for cross examination on 18.05.2022 but despite opportunity he
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was not cross examined. However, as also none of the accused persons
have cross examined PW41 Sh. Awanish Kumar that the stamp papers
had been sold by PW 41 Sh. Awanish Kumar, as sub-vendor of Sh. PR
Bhatia, to one person in bulk in the considered view of this Court, the
non production of non judicial stamp sale register would not be fatal to
the case of the prosecution so far as the issue of non-judicial stamp
papers to the purported deponents is concerned.)
(c) Handwriting expert’s report Ex. PW56/B and opinion Ex. PW56/D
being incriminatory for forgery of the affidavits [(in file Ex. PW55/H
(colly), (D-13, Vol-II)] qua accused Ashutosh Pant who has allegedly
forged them in pursuance of the larger conspiracy with the remaining
accused persons.
21.6 The prosecution has heavily relied upon handwriting
expert’s report Ex. PW56/B and reasons Ex. PW56/D to prove that the
declaratory affidavits have been forged and created by accused Ashutosh
Pant, only. However, Ld. Counsel for accused Ashutosh Pant has
assailed the report with opinions as already mentioned in paragraph no.
12 to 12.3. The objections raised by Ld. Counsel for accused Ashutosh
Pant are now being discussed as under :
(a) Firstly, that sample specimen writings and signatures are
not admitted and have not been proved to have been taken from accused
Ashutosh Pant lest voluntarily.
21.6.1 Section 45 of the Evidence Act, provides as under :
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” 45. Opinions of experts.–When the Court has to form an opinion
upon a point of foreign law or of science, or art, or as to identity of
handwriting 2 [or finger impressions], the opinions upon that point of
persons specially skilled in such foreign law, science or art, 3 [or in
questions as to identity of handwriting] 2 [or finger impressions] are
relevant facts. Such persons are called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison
by which A is supposed to have died, are relevant.
(b) The question is, whether A, at the time of doing a certain act, was,
by reason of unsoundness of mind, incapable of knowing the nature
of the act, or that he was doing what was either wrong or contrary to
law. The opinions of experts upon the question whether the
symptoms exhibited by A commonly show unsoundness of mind, and
whether such unsoundness of mind usually renders persons incapable
of knowing the nature of the acts which they do, or of knowing that
what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A.
Another document is produced which is proved or admitted to have
been written by A.
The opinions of experts on the question whether the two
documents were written by the same person or by different persons,
are relevant.”
Thus, when the opinion of a handwriting expert whether A has written a
document, is relied upon, it is also a relevant fact that the document
from which the comparison of the disputed writing has been made is
either proved or admitted to have been written by A.
21.6.2 In State of Rajasthan Vs. Dr. J.P. Sharma (Supra), it has
been held as under :
“17. It is the duty of the prosecution to prove that the specimen
writings are of the accused and only then the question can arise as
to whether the opinion of the handwriting expert who compared the
specimen writings with the writing on the questioned documents
that they are of the same person, should be relied upon or not…..”
emphasis supplied
21.6.3 The material witnesses to establish that the specimen
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writings and signatures S-1 to S-1535 of accused Ashutosh Pant had
been taken voluntarily are PW55 (S.C. Bhalla), PW58 (Sh. Dhanesh
Kumar Kakkar) and PW59 (Sh. Chob Singh). Ld. Counsel for accused
Ashutosh Pant has laid emphasis on inability of PW58 (Sh. Dhanesh
Kumar Kakkar) to explicate how specimen writings were taken, his
failure to check the identity of accused Ashutosh Pant, omission to sign
S-1090 to S-1459 both by him and the Investigating Officer and to have
signed the remaining specimen writings / signatures purportedly taken in
his presence on 12.07.2006 whereas, the template on which specimens
were taken mention the date as 11.07.2006 as grounds to discard his
testimony. Similarly, from cross examination of PW59 (Sh. Chob
Singh), it has been sought to be demonstrated that he may not have been
a witness to the specimen writings and signatures purportedly taken
from accused Ashutosh Pant as he did not truthfully depose on the
identity of accused Ashutosh Pant having been verified by him, inability
to clarify whether the specimen writings and signatures were taken on
plain paper or typed template, of how they were taken and also his
failure to identify the signature of the investigating officer on sheets
S-91 to S-597 and S-797 to S-855. Also, Ld. Counsel for the accused
raised doubts on the witness being present when the purported specimen
writings and signatures were taken as S-751 to S-755 shown to have
been taken on 11.07.2006 have been signed by the witness on
13.07.2006 and S-839 to S-841 shown to be dated 12.07.2006 have been
signed on 13.07.2006. As already mentioned above, the Investigating
Officer has not appended his signatures on the specimen / writings.
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21.6.4 So far as, specimen writings and signatures S-91 to S-597
and S-797 to S-855 taken in presence of PW59 (Sh. Chob Singh) are
concerned, it is observed from records that S91 to S-597 signed by
PW59 (Sh. Chob Singh) on 13.07.2006 have been obtained on even date
(as mentioned after correction on the template above) and S-797 to
S-838, S-842 to S-855 signed on 13.07.2006 have been obtained as per
template on 11.07.2006, S 839 to S841 signed by the witness on
13.07.2006 has been obtained on 12.07.2006. Even though he stated that
he had attended the office of CBI twice for the aforesaid purpose and
with surety stated on 13.07.2006, it has not been cleared whether his
other visit was on 11.07.2006 or 12.07.2006. It can also be seen from
records that S-1 to S-89/1, S-599 to S-750 and S-856 to S-1459 are all
purportedly taken on 11.07.2006 but PW58 (Sh. Dhanesh Kumar
Kakkar) had signed them on 12.07.2006. The witness maintained during
his cross examination that he had visited the CBI Office only on
12.07.2006. These discrepancies assume importance because PW-55
(Inspector S.C.Bhalla) also stated as under during his cross examination:
“XXXXX A-8 Ashutosh Pant
….
…The specimen handwriting and signatures of Ashutosh Pant were
taken once as per normal practice. I do not remember if any admitted
signatures / handwriting of Ashutosh Pant were procured…
…
“There is overwriting on the date on S-91 to S-348/1, S-352 to S-363,
3-367 to S-404, S-505 to S-595 and S-1466 to S-1505. I do not
remember who made the overwriting. (Vol. The date was mentioned
on the printed specimen sheets and the overwriting of the date had
occurred as the actual date was mentioned after overwriting when the
witness and the person whose specimen handwriting / signatures were
taken appeared). It is correct that S-984, S-1090 to S-1458 do not bear
my signatures. (Vol. It might have left inadvertently). It is correct that
S-1460 to S-1465 do not bear my signatures and of the witness and
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further that it do not bear any date. It is correct that S-1506 to S-1535
do not bear my signatures and of the witness. (Vol. Some sheets
contained signatures of Ashutosh Pant).”
Thus, material contradiction has been elicited from the examination of
independent witnesses which raise doubt regarding their presence when
the specimen writings and signatures had been taken. Hence, through
them, it also could not be established beyond reasonable doubts that the
specimen writings and signatures were given voluntarily. Therefore, the
Court is constrained to observe that the specimen writings and
signatures have been taken callously and on behalf of accused Ashutosh
Pant reasonable doubts have been raised as regards the identity of the
specimen writings and signatures being his, only.
(b) Secondly, reliability of handwriting expert’s report Ex. PW56/B
22. It is no longer res integra that report of a handwriting expert
is admissible provided it is also shown ” that he has made special study
of the subject or acquired a special experience therein or in other words
that he is skilled and has adequate knowledge of the subject. Also, an
expert is not a witness of fact. His evidence is really of an advisory
character.” It is also his duty to provide the Court with the necessary
scientific material for testing the accuracy of his conclusion and
enabling the Court to form an independent opinion. His credibility is
dependent upon the reasons given to support his conclusions and the
data and material furnished which form the basis of his conclusions.
Reliance is placed upon Malay Kumar Ganguly Vs. Sukumar
Mukherjee (supra), State of H.P. Vs. Jailal and ors (Supra), Ramesh
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Chandra Agrawal V. Regency Hospital Limited78.
22.1 In Fakhruddin Vs. State of Madhya Pradesh (Supra), qua
proof of identity of handwriting, it has been observed as under :
“10. Evidence of the identity of handwriting receives treatment in
three sections of the Indian Evidence Act. They are Section 45, 47
and 73. Handwriting may be proved on admission of the writer, by
the evidence of some witness in whose presence he wrote. This is
direct evidence and if it is available the evidence of any other kind
is rendered unnecessary. The Evidence Act also makes relevant the
opinion of a handwriting expert (Section 45) or of one who is
familiar with the writing of a person who is said to have written a
particular writing. Thus besides direct evidence which is of course
the best method of proof, the law makes relevant two other modes.
A writing may be proved to be in the handwriting of a particular
individual by the evidence of a person familiar with the
handwriting of that individual or by the testimony of an expert
competent to the comparison of handwritings on a scientific basis.
A third method (Section 73) is comparison by the court with a
writing made in the presence of the Court or admitted or proved to
be the writing of the person.
11. Both Under Section 45 and Section 47 the evidence is an
opinion, in the former by a scientific comparison and in the latter
on the basis of familiarity resulting from frequent observations
and experience. In either case the court must satisfy itself by such
means as are open that the opinion may be acted upon. One such
means open to the court is to apply its own observation to the
admitted or proved writings and to compare them with the
disputed ones, not to become an handwriting expert but to verify
the premises of the expert in the one case and to appraise the value
of the opinion in the other case. This comparison depends on an
analysis of the characteristics in the admitted or proved writings
and the finding of the same characteristics in large measure in the
disputed writing. In this way the opinion of the deponent whether
expert or other is subjected to scrutiny and although relevant to
start with becomes probative. Where an expert’s opinion is given,
the court must see for itself and with the assistance of the expert
come to its own conclusion whether it can safely be held that the
two writings are by the same person. This is not to say that the
court must play the role of an expert but to say that the court may
accept the fact proved only when it has satisfied itself on its own
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observation that it is safe to accept the opinion whether of the
expert or other witness.”
emphasis supplied.
22.2 In Ram Naraian Vs. State of Uttar Pradesh (supra) , the
Apex Court held as under:
“6. In our view, the legal position enunciated in Fakhruddin
(supra) cannot be said to be inconsistent with the ratio of any one
of the earlier decisions to which reference has been made therein.
Now it is no doubt true that the opinion of a hand-writing expert
given in evidence is no less fallible than any other expert opinion
adduced in evidence with the result that such evidence has to be
received with great caution. But this opinion evidence, which is
relevant, may be worthy of acceptance if there is internal or
external evidence relating to the document in question supporting
the view expressed by the expert. If after comparison of the
disputed and the admitted writings by the Court itself, when the
Presiding Officer is familiar with that language, it is considered
safe to accept the opinion of the expert then the conclusion so
arrived at cannot be assailed on special leave on the mere ground
that comparison hand-writing is generally considered as hazardous
and inclusive and that the opinion of the hand-writing expert has
to be received with considerable caution. …”
22.3 Also, in Murari Lal Vs. State of Madhya Pradesh (supra)
which has been relied upon by the Ld. Public Prosecutor for the State
(through CBI) as well as Ld. Counsel for accused Ashutosh Pant, it has
been opined as under :
“”11. We are firmly of the opinion that there is no rule of law, nor
any rule of prudence which has crystallised into a rule of law, that
opinion evidence of a handwriting expert must never be acted upon,
unless substantially corroborated. But, having due regard to the
imperfect nature of the science of identification of handwriting, the
approach, as we indicated earlier, should be one of caution. Reasons
for the opinion must be carefully 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
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accepted. There cannot be any inflexible rule on a matter which, in
the ultimate analysis, is no more than a question of testimonial
weight. We have said so much because this is an argument frequently
met with in subordinate courts and sentences torn out of context from
the judgments of this Court are often flaunted.”
22.4 However, while acting on the report of a handwriting
expert, the caution to be exercised has been clearly explained in Devi
Prasad Vs. State (supra) as under :
“26. … Indeed, Section 73 of the Indian Evidence Act empowers
courts of law to compare admitted and disputed writings for the
purposes of forming their own opinions. The rule of caution is not to
base a conclusion entirely upon the courts own comparison because
the court’s function is distinct from and above the role of an expert
witness giving evidence on handwriting which is tested by cross-
examination: (See Bhagwandin v. Gouri Shankar, AIR 1957 All 119
and Fazaladdin Mandal v. Panchanau Das, AIR 1957 Cal 924). The
court is, however, bound to form its own opinions with the aid of all
the permissible methods, and to arrive at a conclusion where a
conclusion can safely be arrived at. Such a conclusion can safely be
arrived at where the conclusions of a court, after comparing the
admitted and disputed writings, coincide with the opinions of the
expert and are further corroborated by other pieces of evidence. In
other words, the method contemplated by Section 73 of the
Evidence Act can and ought to be employed by courts in order to
test and find corroboration or contradiction of the opinion of the
expert. The court does not, in such a case, function as a handwriting
expert itself, but it acts as the authority charged with the duty of
arriving at a conclusion with the aid of all the data upon the record
by all legally permissible means at its commands (See Bisseswar
Poddar v. Nabadwip Chandra, AIR 1961 Cal 300). With great
respect, I find myself in complete agreement with what was laid
down in Fazaladdin‘s case, AIR 1957 Cal 92 (supra) by the Calcutta
High Court per K. C. D. Gupta, j. (see p. 93):
“It is true, if there was no evidence before the court as regards the
genuineness of the signature, the court could not, in law, rely on its
own examination of the signature to supply the evidence because the
learned Judge could not treat himself as au expert. I am unable to
find anything in principle or authority which bars the judge of facts
from using his own eyes and looking at the admitted signature along
with the disputed signature in deciding whether the evidence that
has been given as regards the genuineness of the document should
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be believed or not.”
27. If the opinion of the handwriting expert is found by a court to be
honest and reliable, after subjecting it to the recognised tests of
soundness, it can even be considered better evidence than the
evidence of indifferent witnesses whose motives are often mixed
and whose powers of observation and recollection are very faulty.
The observations of the expert are far more careful and guided by
scientific knowledge and skill which, where they exist must be duly
appreciated. Prof. Wigmore, the celebrated authority on the law of
Evidence wrote, in 1910, in his introduction to Mr. Cabora’s book on
“Questioned Documents” 2nd Edition: “A century ago the science of
handwriting study did not exist. A crude empiricism still prevailed.
This hundred years past has seen a vast progress. All relevant
branches of modern science have been brought to bear. Skilled
students have focussed upon this field a manifold of appurtenant
devices and apparatus. A science and an Art have developed. A firm
place has now been made for the expert witness who is emphatically
scientific and not merely empiric.”
28. An objection put forward to the opinion of the expert in this case
is that he has admitted that there are deliberate attempts at disguise
in a number of writings. The existence of disguise certainly makes
the task of the expert and of the court more difficult. The obstacles
placed by it are, however, not insurmountable. Certain rules have
been formulated and discussed by Dr. Harrison, the Director of the
Home Office Forensic Science Laboratory in Britain in his book on
“Suspect Documents” (1958), as guides for piercing the disguise.
These are as follows:
1. “Most Disguise is Relatively Simple in Nature.
2. “Disguised Handwriting Exhibits less Fluency and Poorer Rythm
than the Normal Hand.
3. “Any Change in Slope Introduced as Disguised is Rarely
Constant.’
4. “Disguised Handwriting often Contains Altered Letters”
5. ‘The Internal Consistency of Handwriting is Disturbed by the
Introduction of Disguise.”
6. “Originality in Disguise is Rare.”
7. ‘Disguise is Rarely Consistent.”
8. ‘Certain Features are Rarely Disguised.”
29 Another objection put forward against Mr. Gregory as an expert
witness in this case was that he had been acting as a consulting
expert of the C. I. D. of Uttar Pradesh. It was, therefore argued that
he could not be impartial in his opinions but must be presumed to be
interested in making the prosecution case successful. It has also
been suggested that experts are bound to give opinions in favour of
parties consulting them. The duty and interest of an expert, if he
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wants his individual opinion to carry some weight and enjoy a good
reputation is to be scrupulous and impartial. If the expert has some
professional pride or even regard for his own self interest, he will
not, for the sake of some small immediate advantage, jeopardise the
value of his opinion and degrade the status of his profession by
making his knowledge and skill serve as tools of dishonest parties.
An expert who gives dishonest opinions is quite certain to be
exposed by ruthless cross-examination and to be soon found out by
astute courts which do not and should not readily accent expert
opinions without rigorously testing what an expert has to say. I do
not think that a presumption is a legitimate weapon for demolishing
the testimony of an expert with such a back-ground and standing as
those revealed by Mr. Gregory. His opinions could certainly be
demolished by superior reasons to support contrary conclusions or
by convincing proof that they are not honest.
30. One of the ways in which the honesty of an expert can be tested
is to consider the number of instances in which he has given
opinions contrary to the opinions which those who consult him may
be presumed to desire. I find that Mr. Gregory has given quite a
number of opinions rejecting the disputed handwritings sent to him
after comparing them with the admitted handwritings. In other
cases, I have also found that his opinions are not dogmatic or
obstinate. It has been held in Subodh Kumar v. Soshi Kumar, AIR
1958 Cal 264 at p. 268 that an expert is entitled to more credit if his
answers indicate that he appreciates the other side of the case, and
can and does look at the problems before him impartially. The
general impression created by the replies to the cross-examination of
Mr. Gregory, from this point of view also, is quite favourable.
31 The worth of the expert’s opinions with regard to the handwriting
of each appellant can only be judged by examining his reasons and
comparing the admitted and the disputed writings about which the
opinion was given. As I have already indicated, I propose to adopt
this method of judging the reliability of the evidence of the
handwriting expert with reference to each accused person. Another
test which I propose to employ is to see whether the effect of the
expert evidence is corroborated by other kinds of evidence in the
case from other sources such as the approver’s evidence about
handwritings, the confession, and the evidence of other witnesses. I
have already held that the evidence of the approver and the
confession of Abdul Hameed can be used in this case for the
purpose of finding corroboration for the evidence of handwriting as
they are not so unreliable as to merit total rejection even if the part
of the approver’s statement relating to the two alleged meetings of
conspirators is so thoroughly unreliable that it must be rejected.
32. The 4th and 5th classes of evidence mentioned above–the
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witnesses who proved the handwritings and the document upon
which the writings exist–will be considered by me in relation to
each accused appellant as no general question relating to all the
evidence of either of these two types, not covered by other questions
already discussed, has been raised in this case except one involving
an interpretation of the explanation to Section 47 Indian Evidence
Act. It was argued that fee witnesses who had not seen the accused
persons writing so much or in such a way as to become familiar with
their writings could not be said to be really acquainted with me
handwritings of the accused. In my opinion, the degree to which a
person is acquainted with the handwriting of another is really a
question of fact which can only affect the value of his evidence.”
Emphasis supplied
22.5 Also, in Padum Kumar Vs. State of UP (supra) it has been
held as under:
“16. It is fairly well settled that before acting upon the opinion of
the hand-writing expert, prudence requires that the court must see
that such evidence is corroborated by other evidence either direct or
circumstantial evidence. In Murari Lal v. State of Madhya Pradesh
(1980) 1 SCC 704, the Supreme Court held as under:
4….True, it has occasionally been said on very high authority that it
would be hazardous to base a conviction solely on the opinion of a
handwriting expert. But, the hazard in accepting the opinion of any
expert, handwriting expert or any other kind of expert, is not
because experts, in general, are unreliable witnesses – the quality of
credibility or incredibility being one which an expert shares with all
other witnesses – but because all human judgment is fallible and an
expert may go wrong because of some defect of observation, some
error of premises or honest mistake of conclusion. The more
developed and the more perfect a science, the less the chance of an
incorrect opinion and the converse if the science is less developed
and imperfect. The science of identification of finger-prints has
attained near perfection and the risk of an incorrect opinion is
practically non-existent. On the other hand, the science of
identification of handwriting is not nearly so perfect and the risk is,
therefore, higher. But that is a far cry from doubting the opinion of a
handwriting expert as an invariable Rule and insisting upon
substantial corroboration in every case, howsoever the opinion may
be backed by the soundest of reasons. It is hardly fair to an expert to
view his opinion with an initial suspicion and to treat him as an
inferior sort of witness. His opinion has to be tested by the
acceptability of the reasons given by him. An expert deposes and not
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decides. His duty “is to furnish the Judge with the necessary
scientific criteria for testing the accuracy of his conclusion, so as to
enable the Judge to form his own independent judgment by the
application of these criteria to the facts proved in evidence (Vide
Lord President Cooper in Davis v. Edinburgh Magistrate, 1953 SC
34 quoted by Professor Cross in his evidence).”
5. …….
6. Expert testimony is made relevant by Section 45 of the Evidence
Act and where the Court has to form an opinion upon a point as to
identity of handwriting, the opinion of a person “specially skilled”
“in questions as to identity of handwriting” is expressly made a
relevant fact……… So, corroboration may not invariably be insisted
upon before acting on the opinion of an handwriting expert and
there need be no initial suspicion. But, on the facts of a particular
case, a court may require corroboration of a varying degree. There
can be no hard and fast rule, but nothing will justify the rejection of
the opinion of an expert supported by unchallenged reasons on the
sole ground that it is not corroborated. The approach of a court
while dealing with the opinion of a handwriting expert should be to
proceed cautiously, probe the reasons for the opinion, consider all
other relevant evidence and decide finally to accept or reject it.”
23. In the light of the above enunciations, the Court shall now
proceed to appreciate the opinion / report Ex. PW55/C of the
handwriting expert examined as PW56 (Sh. S. Saha).
24. At the outset, opinion expressed in paragraph no. 3 to 16 of
Ex. PW56/C qua signatures Q-34 of Sh. P. Kaul, Q-42 of Sh. Somnath,
Q-52 of Sh. R.C. Sood (on affidavit Ex. PW15/A), Q-54 of Sh. Hari
Singh Sharma (on affidavit Ex. PW21/C), Q-62 of Sh. Amar Singh (on
Mark X), Q-74 of Sh. Jalaur Singh, Q-76 of Sh. Manohar Lal Malik,
Q-86 of Sh. Madan Lal Thakur (on affidavit Ex. PW16/A), Q-140 of Sh.
R.K. Manchanda (on affidavit Ex. PW8/A), Q-170 of Ms. Leena Baijal
(on affidavit Ex. PW17/A), Q-182 of Sh. K.D. Joshi (on affidavit Ex.
PW41-A/A46), Q-192 of Smt. Ved Sabharwal (Ex. PW41/A50), Q-196
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of Sh. Kashmiri Lal (on affidavit Ex. PW41/A52) and Q 244 of Sh.
Rajender Kumar Sharma on affidavit Ex. PW9/A is excluded from
consideration as no admitted specimen beyond S-1535 have been
adduced in evidence for the Court to appreciate the grounds on which
the opinion has been given upon the aforementioned questioned
signatures. However, what is relevant for the prosecution is the opinion
expressed in paragraph no. 2 of the report Ex. PW56/C which is as
under :
“The person who wrote the blue enclosed writings stamped and
marked S1 to S49, S49/1, S50, S50/1, S51, S51/1 , S52, S52/1, S53,
S53/1, S54, S54/1, S55 to S85, S85/1, S86, S86/1, S87, S87/1, S88,
S88/1, S89, S89/1, S90 to S379, S379/1, S380 to S626, S626/1, S627
to S708, S708/1, S709 to S863, S863/1, S864 to S1049, S1049/1,
1050 to S118, S118/1, S1119 to S1211, S1211/1, S1212 to S1535 also
wrote the red enclosed writings similarly stamped and marked Q1 to
Q15, Q17 to Q21, Q23, Q28, Q30, Q32, Q34, Q36, Q38, Q40, Q42,
Q48, Q50, Q52, Q54, Q58, Q60, Q62, Q66, Q68, Q76, Q78, Q80,
Q84, Q86, Q88, Q90, Q92, Q94, Q96, Q100, Q102, Q104, Q106,
Q114, Q116 to Q135, Q137 to Q141, Q143 to Q145, Q150, Q152,
Q154, Q156, Q158, Q160, Q162, Q164, Q166, Q168, Q170, Q172,
Q174, Q178, Q182, Q184, Q188, Q190, Q192, Q194, Q196, Q198,
Q200, Q202, Q212, Q214, Q216, Q218, Q220, Q244, Q248, Q250,
Q252, Q254, Q258, Q260, Q262, Q264, Q266, Q268, Q270, Q272,
Q274, Q280, Q282, Q284, Q286, Q288, Q296 as well as the writings
whose photostatic reproduction have bee marked Q324A, Q325 to
Q336, Q338, Q339 and Q340 (subject to the condition that they are
the true reproduction of their respective originals).”
24.1 In the considered view of this Court, the opinion given in
paragraph no.2 of the report Ex. PW56/C and reasons Ex. PW56/D are
not convincing due to following reasons :
(a) The identity of the admitted specimen writings and
signatures has not been established as that of accused Ashutosh Pant for
reasons already discussed in paragraph no. 20.6.5.
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(b) The questioned writings on the declaratory affidavits are
from Q-1 to Q-309. The reasons upon which the opinion is premised is
“cumulative consideration of various similarities in the writings habit
occurring in them.” Thereafter, minute similarities and inconspicuous
details information of the letters have been lifted from words like “the ,
that, this, therefore, of, following, society, hereby, Bye-laws, day, only,
office, president, authorized, declaration, etc., which are not appearing
in affidavits and probably have been lifted from Q-310 and beyond
which are not on record for the perusal of this Court and reasonable
doubts on their examination has been demonstrated by Ld. Counsel for
the the defence through the following cross examination :
“As per letter sent by CBI to our Lab Ex. PW56/A the questioned
documents sent to us as mentioned in annexure A are from Q-1 to
Q324, Q-324-A and Q-340 and the specimen sent to us as mentioned
in annexure B were from S-1 to S-1593
It is correct that in the case abstract of my opinion Ex.
PW56/B, I have mentioned that the documents received by lab under
the heading details of exhibits are from Q-1 to Q-340 and Q-322A,
Q-324A and Q-324/1 as per forwarding letter.
It is correct that Q-325 to Q-329 and Q-322A, Q-323A and
Q-324/1 are not mentioned in annexure A of Ex. PW56/A. Vol. These
are mentioned in the query sheet of the said forwarding letter.
The specimen as mentioned in the case abstract under the
heading details of exhibits of standard documents are from S-1 to
S-1593, S-49/1 to S-54/1, S-85/1 to S-89/1, S-379/1, S-626/1,
S-708/1, S-863/1, S-1049/1, S-1118/1 and S-1211/1 as per forwarding
letter.
It is correct that S-49/1 to S-54/1, S-85/1 to S-89/1, S-379/1,
S-626/1, S-708/1, S-863/1, S-1049/1, S-1118/1 and S-1211/1 are not
mentioned in annexure B of Ex. PW56/A. Vol. These are the sub
marking which were supplied alongwith the original standard
documents and the same were marked by me with the said numbers at
the time of examination of the original documents.
It is correct that vide forwarding letter dated 25.09.2006 the
lab had returned the original documents to the forwarding authority
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through special messenger. The forwarding letter is Ex. PW56/DX1.
The writings on this letter are in the handwriting of Mr. N.L. Paite and
then Assistant Central Grade-1 officer working in our office and I
have identified his handwriting and signature in the said letter as he
has worked with me and I am well acquainted with his handwriting
and signature.
The documents which have been returned back by the lab to
the forwarding authority has been mentioned at point A to A in
encircled in red on Ex. 56/DX1.
…
It is correct that the reasons given by me in sub para 10 of para
2 of my reasons Ex. PW56/D is related to fixing authorship of certain
signatures of the concerned persons. It is correct that in these reasons
I have not mentioned the alphabets of the words/signatures examined
by me. Vol. However, this particular para reflects the overall
execution, formation of different letters and their commencement
including combinations alongwith underscoring and other features
related to the concerned persons. It is correct that I have not
mentioned the word “other features” and “overall” in the above para.
…
Witness has been shown S-91 to S-348, S-352 to S-363, S-367
to S-378, S-379 to S-380, S-381 to S-404, S-505 to 597.
Q. In these specimen writing sheets there is a cutting of the date at the
top of the sheet. Were these cutting their at the time when you
examined these specimen signatures.
A. I do not remember.
It is correct that the reasons mentioned by me from sub para 1
to sub para 9 of para 2 of Ex.56/D pertains to writing.
It is wrong to suggest that the words selected in sub para 1 to
sub para 8 of para 2 of Ex.56/D are nowhere there in Q-1 to Q-309.
…”
(c) The witness has acknowledged that he did not ascertain the
generation of the photocopy of mark Q 324 A, Q 325 to Q 336 to Q 340
(though not available on record for appreciation by this Court) and that
there are limitations in examination of handwritings on the basis of
photocopies as he admitted during his cross examination as under :
“…
It is correct that I did not ascertain the generation of the photocopy
and I have examined a zerox copy. Sometimes it is true that in the case
of a photocopy, line quality determination is difficult. It is correct that
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the features like pen stroke, pen lifts, re touching, tremors, hesitation
etc., are difficult to determine in case of a photocopy.
…”
(d) The expert has given a general overview and admitted that he has not
mentioned that he has compared a particular writing with a particular
questioned specimen when he also admitted the following :
“It is correct that I have not mentioned that the particular questioned
writing was matched with particular questioned specimen writing. Vol.
I have examined overall features.
…
It is correct that in the general writing characteristics like movement,
alignment, speed, spacing, relative size and proportion of letters, I
have not given any details of these characteristics in my reasons. Vol.
Although I have not mentioned the above characteristics specifically
word wise or letter wise but the same has been mentioned in my
reasons as on overall features related to the examination of the
handwriting which was mentioned already in the above question.”
(e) There is contradiction evident from questionnaire Ex. PW56/A,
report Ex. PW56/C and letter Ex. PW56/D1 as to what data and material
were supplied by the investigating agency and examined by the
handwriting expert.
(f) The prosecution also could not prove that it was accused Ashutosh
Pant only who had impersonated as Vishnu Rai and that accused
Ashutosh Pant had also forged the aforementioned documents.
24.2 Thus, this Court is compelled to be circumspect on
accepting the report of the handwriting expert Ex. PW55/C without
corroboration. It has not been established that the opinion of the
handwriting expert in the present case is infallible. Hence, it has also
not been conclusively proved that accused Ashutosh Pant had forged the
declaratory affidavits, either.
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(e) Minutes of Meeting dated 16.08.1972, 21.09.1972, 09.11.1972,
10.01.1973, 15.03.1973, 21.05.1973 and 16.08.1977.
25. As regards aforementioned minutes of meeting from
16.08.1972 to 16.08.1977, it is observed from record that all have been
conducted under the Presidentship of Sh. K.L. Soni. However, the falsity
of the minutes of meeting is established by the testimony of PW-36 (Sh.
Umed Singh) who clearly stated that Sh. K.L. Soni was the original
member of United India Insurance CGHS. It has also been deposed by
the witness that he himself had never participated in the meetings dated
16.08.1972 (Mark PW36/X2), 17.07.1977 (Ex. PW36/C)(objected to on
mode of proof), 05.10.2003 (Ex. PW36/D)(objected to on mode of
proof) and 04.04.2004 (Ex. PW34/C)(objected to on mode of proof).
(However, the documents though objected on mode of proof being
photocopies, the prosecution has explained the reason for reliance on
photocopies. Also their relevance so far as evidencing the presence or
not of PW36 (Sh.Umed Singh) is explained. They are also the
documents once again taken on record during inspection by accused
Faiz Mohd. therefore, the objection is overrulled). Even PW34 (Ms.
Poonam Vasudeva) has deposed that she never participated in meeting
dated 04.04.2004 even though she was shown as one of the participant
at sl. no. 14. It has also been demonstrated from the testimony of PW1
(Sh. Amar Singh), PW2 (Sh. Sansar Chand Sharma), PW3 (Mangat
Ram), PW7 (Sh. Chandermani Pathak), PW8 (Sh. R.K. Manchanda),
PW9 (Sh. Rajinder Kumar Sharma), PW10 (Sh. R.P. Malhotra), PW14
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(Sh. Girish Chander Chopra), PW12 (Sh. Deepak Bahl), PW13 (Sh.
Prem Puri), PW-14 (Sh. Lal Chand), PW15 (Sh. R.C. Sood), PW16 (Sh.
Madan Lal Thakur), PW17 (Ms. Leena Baijal), PW18 (Sh. R.D. Joshi),
PW19 (Sh. G.K. Gupta), PW20 (Sh. V.S. Chopra), PW21 (Sh. Hari
Singh), PW22 (Sh. N.P. Upadhyay), PW23 (Sh. Ashok Kumar Tandon),
PW24 (Sh. B.K. Gupta), PW25 (Sh. Umesh Aggarwal s/o Late Sh. Jai
Narayan Aggarwal), PW26 (Sh. Virender Kumar Taneja), PW27 (Sh.
Anand grandson of Late Krishan Lal), PW29 (Sh. Ashok Bhasin
husband of Late Anita Bhasin), PW34 (Ms. Poonam Vasudev), PW35
(Sh. P. Raman), PW36 (Sh. Ummed Singh), PW42 (Sh. K.S. Gandilok),
PW44 (Sh. E.S.N. Moorthy), PW45 (Sh. Shiv Singh Rawat), PW47 (Sh.
Chandan Singh on behalf of his father Late Pan Singh), PW49 (Sh.
Suresh Chand Jangla), PW50 (Sh. Sharad Aggarwal on behalf of his
father Sh. D.C. Aggarwal) and PW54 (Sh. Ved Sabharwal) that though
they were shown to have been introduced as the member of Delhi
Census CGHS through the aforesaid minutes of meetings, they denied to
have ever acquired the membership of Delhi Census CGHS. Thus, it has
been proved that the minutes of meetings are fabricated.
25.1 Be that as it may, there is no iota of evidence through which
the prosecution has been able to establish that the minutes of meeting
are in the handwriting of accused Ashutosh Pant, only. As already
discussed above, the handwriting expert’s report (Ex. PW56/B) is not
convincing to be acted upon.
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(f) Consolidated list of members of Delhi Census CGHS (Ex.
PW19/F)
26. So far as the consolidated lists of 150 members are
concerned, there are lists which the prosecution has relied upon as
under :
(a) Ex. PW19/C photocopy of affidavit dated 16.02.2004 filed
by Vishnu Rai affirming 135 members who had joined Delhi Census
CGHS on 16.08.1972, 21.09.1972, 09.11.1972, 28.11.1972, 10.01.1973,
15.03.1973, 21.05.29173 and 16.08.1977, respectively. (The same was
objected to on mode of proof. However, considering that it forms part of
admitted Inspection Report Ex. PW25/A and Ex. PW25/D wherein the
accused Faiz Mohd. claimed to have checked the original records which
the prosecution has explained could not be seized during investigation,
reliance on secondary evidence is explained. 79 Therefore, the objection
is overruled.
(b) Ex. PW19/D which is photocopy of list of members with
addresses to whom UPCs had been sent.
(c) Ex PW19/E(Colly) photocopy of proforma for submission
of list of members for verification
(d) Ex. PW19/F consolidated list of members enrolled (forming
part of report (Ex. PW25/D) given by accused Faiz Mohd. ( Objected to
on mode of proof as the witnesses had no role in preparation of the
same. However, it is a list which forms part of report Ex. PW25/D
79 During cross-examination dated 16.11.2022 conducted on behalf of accused Ashutosh Pant
PW-55 (IO/S.C. Bhalla) stated “I do not remember now if I had seized original membership
register, proceeding register, AGM and election register, books of accounts, applications for
membership and applications for resignations, bank statements of the society but whatever
documents I had seized have been filed along with the charge-sheet…”
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prepared by accused Faiz Mohd. on inspection and verification of
records. Therefore, the objection is overruled.)
(e) Ex. PW23/B photocopy of list of members of Delhi Census
CGHS for verification
(f) Ex. PW23/C list of members of Delhi Census CGHS as on
31.03.2003
(f) Ex. PW23/D photocopy of list of members as on
30.06.1978.
26.1 It has been the case of the prosecution that the list of
members are fabricated and fake members had been introduced by
obtaining details of members of United India Insurance CGHS having
office at Mayur Vihar Phase I, Delhi – 91. Such a list of members of
United India CGHS has been proved as Ex. PW37/A by Sh. I.P.S. Sodhi
who was examined as PW-37. During his testimony he stated as under:
“I have seen one list of members of United India CGHS running
into 9 pages. I had handed over the said list of members to the CBI.
I identify my signature at Point A as a President of United India
CGHS on all the nine pages of the said list. The said list is now
collectively exhibited as Ex. PW37/A. Neither I nor any of the
members of United India Insurance CGHS were member in Delhi
Censes CGHS.
I have gone through the list of members of Delhi Census
CGHS placed in file D-12 Volume I from pages 141/C (including
142/C) to 139/C. I stated that most of the members shown in this
list are members in United India CGHS. The name of the persons
who are member in United India CGHS are appearing in this list at
serial no. 89, 90, 91, 93, 94, 95, 96, 97, 99, 100, 101, 103, 104, 107,
108, 110, 116 on page 141/C and further names are appearing at
page no. 142 at serial no. 60, 63, 64, 66, 67, 69, 70, 71, 72, 76, 77,
78, 79, 80, 81, 82, 83, 85, 86, 87 and further names are appearing at
page no. 143/C at serial no. 30, 34, 36, 38, 39, 40, 42, 51, 52, 53,
55, 56 and further names are appearing at page no. 144/C at serial
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no. 1, 2, 3, 7, 8, 11, 13, 15, 17, 18, 19, 21, 22, 23, 26, 28, 29 and
further names are appearing at page no. 140/C at serial no. 125,
126, 127, 128, 129, 130, 132, 135, 136, 137, 138, 139, 140, 142,
143, 144 and further names are appearing at page no. 139/C at
serial no. 146, 147, 149. I state that almost all the member were
shown as a member of Delhi Census CGHS were employees of
United India Insurance Company and were members in United
India CGHS. However, they have been shown as a member of
Delhi Sensus CGHS. They were never members in Delhi Sensus
CGHS.”
He also confirmed that Late Samindernath Shah, Late Paulson Peter,
Late SR. Handa and Late Sh. Kushal Singh who have been shown as
members at Sl. no. 05, 128, 51 and 78, respectively had already expired
on 26.12.1995, 28.03.1993, 16.06.1996 and 02.07.1997, respectively.
26.2 The testimony of PW37 (Sh. I.P.S. Sondhi) qua lifting of
details of members of United India Insurance CGHS and being used for
preparation of the list of 150 consolidated members of Delhi Census
CGHS is further corroborated by the testimonies of PW1 (Sh Amar
Singh), PW2 (Sh. Sansarchand Sharma), PW3 (Sh. Mangat Ram), PW7
(Sh. Chander Mani Pathak), PW8 (Sh. Raj Kumar Manchanda), PW9
(Sh. Rajinder Kumar Sharma), PW10 (Sh. R.P Malhotra), PW11 (Sh.
Girish Chandra Chopra), PW12 (Sh. Deepak Bahl), PW13 (Smt. Prem
Puri), PW14 (Sh. Lal Chand), PW15 (Sh. R.C. Sood), PW16 (Sh.
Madan Lal Thakur), PW17 (Smt. Leena Baijal), PW18 (Sh. R.D. Joshi),
PW19 (Sh. G.K. Gupta), PW20 (Sh. V.S. Chopra), PW 21 (Sh. Hari
Singh), PW22 (Sh. N.P. Upadhyay), PW23 (Sh. Ashok Kumar Tandon),
PW24 (Sh. Brij Kishore Gupta), PW25 (Sh. Umesh Aggarwal), PW26
(Sh. Virender Kumar Taneja), PW27 (Sh. Anand), PW28 (Sh. Tajinder
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Pal), PW29 (Sh. Ashok Bhasin), PW33 (Sh. B.B. Vij), PW34 (Sh.
Poonam Vasudeva), PW35 (Sh. P Raman), PW36 (Sh. Umed Singh),
PW42 (Sh. K.S. Gandilok), PW44 (Sh. E.S.N. Moorthy), PW45 (Sh.
Shiv Singh Rawat) PW46 (Sh. Vijay Aggarwal), PW48 (Ms. Indu
Arora), PW49 (Sh. Suresh Chand Jangla), PW50 (Sh. Sharad Aggarwal)
and PW54 (Sh. Ved Sabharwal).
26.3 Thus, so far as, the consolidated list of members of Delhi
Census CGHS is concerned, it has been established beyond reasonable
doubts that the members shown are fake.
26.4 However, the onus of the prosecution further extended to
prove that the creation of the fake list of members was attributable
accused Ashutosh Pant in conspiracy with accused Munna Lal Sharma.
The lists are electronically generated and there is no evidence led that
accused Ashutosh Pant had in conspiracy with accused Munna Lal
Sharma used particular computer system and printer to generate the lists.
Also, some light could have been thrown upon creation of the lists by
also proving that the accused Ashutosh Pant only in his own handwriting
had also fabricated minutes of meeting dated 16.08.1972, 21.09.1972,
09.11.1972, 10.01.1973, 15.03.1973, 21.05.1973 and 16.08.1977
through which the fake members are shown to have been introduced in
Delhi Census CGHS as from the testimony of PW36 (Sh. Ummed
Singh) it has also been established Sh. K.L. Soni shown to have
presided over the meetings of managing committee of Delhi Census
CGHS was never a member of Delhi Census CGHS but was a member
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of United India Insurance CGHS. Except for inconsequential
improvements in the testimony of the witness, nothing credible has been
elicited to disbelieve him qua the minutes of meeting being fabricated.
However, evidence beyond reasonable doubts has not been led for
reasons already discussed above80 that the authorship of the minutes of
meeting is that of accused Ashutosh Pant.
26.5 As a circumstance to show that accused Ashutosh Pant had
been acting in conspiracy with accused Munna Lal Sharma, much
emphasis has been laid by the prosecution upon a handwritten letter Ex.
PW55/D (D-9) by accused Munna Lal Sharma to the Police
Commissioner, CBI, ACB and marked to the Investigating Officer.
However, as has been rightly argued by Ld. Counsel for accused
persons, the letter has not been duly proved as the Investigating Officer
was not competent to prove the same because it was not written in his
presence. Hence, the document is not admissible in evidence. Further,
the only other evidence, the prosecution is trying to latch upon to prove
conspiracy between accused Ashutosh Pant and accused Munna Lal
Sharma is the testimony of PW53 (Sh. Sanjeev Pathak) which merely
demonstrates that he was the nephew of accused Munna Lal Sharma and
had seen Ashutosh Pant at his office. However, considering that the
witness denied having conducted the election of Delhi Census CGHS on
28.09.2003 and there is no analysis by a handwriting expert of his
election report to connect him to it. There isn’t sufficient material to
conclude that there was a nexus between accused Ashutosh Pant and
80 paragraph nos. 24 and 24.1
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accused Munna Lal Sharma.
26.6 This Court is constrained to observe that the investigating
agency has adopted a subpar and unprofessional approach during
investigation, so much so, that the resultant effect is that even though
there could have been a strong suspicion of fabrication of records and
impersonation by the accused persons, it has not been established
before the Court.
27. The next issue in respect of the allegations of forgery which
requires deliberation is the offence punishable under Section 471 IPC
making it punishable, the fraudulent and dishonest use as genuine of any
document or electronic record which the accused persons knew or had
reason to believe to be forged.
27.1 Once, the prosecution failed to prove that accused Ashutosh
Pant impersonated as Vishnu Rai, office bearer of Delhi Census CGHS;
that he also forged the affidavits; that he in conspiracy with accused
Munna Lal Sharma fabricated other documents of Delhi Census CGHS
and that they are the private persons who moved the application for
cancellation of winding up order dated 29.03.1979, the charge that they
had used the forged documents as genuine with knowledge or reason to
believe that the documents are forged, also falls flat. There is no iota of
evidence before this Court to render a finding on the said charge.
Consequently, even the charge of them conspiring with the public
servants in fabrication of the documents and use thereof, cannot be
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sustained. It is here that the Court is also of the view that since
ingredients of offence punishable under IPC are not being proved, the
technical objection raised by the accused persons who are public
servants regarding absence of sanction for prosecution under Section
197(1) of Cr.P.C. qua them for conspiracy to commit offences
punishable under IPC requires no deliberation. Even otherwise, qua
accused P.K. Thirwani the issue attained finality in view of order dated
06.08.2009 which has not been challenged.
ALLEGATIONS OF COMMISSION OF OFFENCE BY PUBLIC
SERVANTS UNDER SECTION 15 READWITH SECTION 13(2)
READWITH SECTION 13(1)(D) OF P.C. ACT
28. The charge is premised upon the accusation that the
accused public servants namely accused Narayan Diwakar as the then
RCS, accused Sita Ram Goyal (since deceased) as the then Assistant
Registrar (West), accused Faiz Mohd. as the then Head Clerk (North
West Zone), accused R.B. Chauhan as the then Dealing Assistant,
accused Deen Bandhu Prashad as the then Election Officer and accused
P.K. Thirwani as the then Official Auditor with dishonest intention,
committed misconduct and entered into a criminal conspiracy with co-
accused persons Ashutosh Pant and Munna Lal Sharma (private
individuals) to revive a defunct society (which had been ordered to be
wound up vide order dated 23.03.1979), on the basis of forged and
fabricated documents (namely forged application under Section 63(3) of
DCS Act, 1972 [pages 1/C and 2/C of file Ex. PW55/G (colly) (D-12),
Vol-I)], application forms [page no.1/C to page no. 136/C of file Ex.
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PW55/I(colly), (D-14), (Vol-III)], fabricated freeze list of members
[page no.139/C to 144/C of file Ex. PW55/G(colly), (D-12), Vol-I)],
forged affidavits of members [(page no. 145/C to page no. 150/C of file
Ex. PW55/G(colly), (D-12), Vol-I)], forged subscription receipts [pages
no. 137/C to page no. 203/C of file Ex. PW55/I (colly)(D-14), Vol-III)]
and then forwarded the aforesaid fabricated freeze list of members to
DDA to induce it to allot land to Delhi Census CGHS at a pre-
determined rate.
29. Before adverting to the merits of the accusations, the Court
deems it appropriate to deal with certain technical objections which
have been taken by the Ld. Counsel for the accused persons who are
public servants to urge that the trial against the accused persons for
offences punishable under relevant sections of P.C. Act stands vitiated.
The objections on technical ground can be identified as under :
(a) That since the offences under DCS Act, 1972 are not notified
under Section 3 of The DSPE Act, the CBI was not empowered to
investigate the matter.
(b) That as per Section 95 of DCS Act, 1972 no suit, prosecution or
other legal proceedings shall lie against the Registrar or any person
subordinate to him or acting on his authority in respect of anything in
good faith done or purporting to have been done under this Act.
(c) That sanction for prosecution under Section 19 of P.C. Act is not
valid.
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29.1 The Court now proposes to address the issues as under :
(a) Whether CBI was not empowered to investigate into the alleged
offences ?
29.1.1 Ld. Counsel for accused Faiz Mohd. and R.B. Chauhan has
emphasized that the CBI was not empowered to investigate offences
already catered to under DCS Act, 1972 in view of Section 3 of DCS
Act, 1972 read with Section 5 of IPC.
29.1.2 However, in the reasoned view of this Court, it cannot be
lost sight of that what has been investigated are offences punishable
under IPC and P.C. Act and not under DCS Act, 1972 for which the CBI
had been duly empowered vide notification no. 228/8/89.AVD-II dated
07.09.1989.
29.1.3 Hence, the objection is without any merit.
(b) Is immunity under Section 95 of DCS Act, 1972 available to the
accused?
29.1.4 In Narayan Diwakar Vs. CBI81 a similar question arose
which was answered as under :
15. This Court on a consideration of the matter and more
particularly having regard to the provisions of the Delhi Co-
operative Societies Act, 1972 and Judges (Protection) Act, 1985,
is of the considered opinion that the petitioner while exercising
81 ILR (2006) 1 Delhi 517
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and discharging functions of the Act and more particularly the
powers under Section 63(3) of the Act, cannot be deemed to be a
‘Judge’ within the meaning of Section 2 of the Judges (Protection)
Act, 1985 and, consequently, he cannot claim any protection
against prosecution or other legal proceedings. So far as the
immunity available to the Registrar and other officers against
prosecution etc. under Section 95 of the Act is concerned, suffice
it would be to observe that the use of the expression ‘good faith’
in the said section clearly brings out the mind of the Legislature
that the protection granted to the Registrar and other officers for
any acts done by them in the discharge or their official duties is
not absolute and is circumscribed by the essential condition that
the action had been taken and power had been exercised by such
officers in good faith. Converse of good faith is ‘bad faith’ or
mala fide and, therefore, if a question arises as to whether the
action taken by the Registrar Cooperative Societies or any other
officer was in bad faith, the immunity envisaged by Section 95 of
the Act will not be available and the question can be gone into by
any competent authority including any statutory investigating
agency(s) like CBI. In the opinion of this Court, the petitioner
cannot be allowed to take refuge under the said provisions and to
scuttle the investigation into the cases having large remifications
in the society.”
emphasis supplied.
29.1.5 Reliance is also placed upon R.K. Srivastava Vs. CBI W.P.
(Crl.) 11/2020, Crl.M.A. 54/2020 & Crl.M.A. 4107/2020 dated
24.03.2022.
29.1.6 Even otherwise, the onus was upon the defence to prove
“good faith”. However, there is no evidence adduced either affirmative
or through cross-examination of prosecution witnesses that the public
servants conducted themselves in “good faith”. Therefore, the
submission being devoid of merit deserves rejection.
(c) Whether sanction under Section 19 of P.C. Act is invalid?
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29.1.7 Qua grant of sanction under Section 19 of P.C. Act, accused
R.B Chauhan and accused Deen Bandhu Prashad have challenged the
sanction order Ex.PW39/A and Ex. PW5/A, respectively for lack of
competency of PW-39 (Sh. Anil Mehra) and PW-5 (Brig.(Retd). S.K.
Choudhary) as they were not competent to remove the accused persons
from service at the relevant time when the alleged offences occurred. In
this regard, it is pertinent to recall that vide order dated 06.08.2009, the
issue was left open to be decided after trial on an application dated
26.03.2009 which had been moved by accused R.B. Chauhan.
29.1.8 At the outset, what can be gathered from examination of
PW39 (Sh. Anil Mehra) is that he claimed both competency as well as
stated that he had applied his independent mind to the documents
produced before him for grant of sanction for prosecution Ex. PW39/A.
At that stage, he was not cross-examined by accused R.B. Chauhan.
Subsequently, in his defence accused R.B. Chauhan sought production
of file no. F3/709/05/DFW/Estt/Pt. through DW3 (Sh. Praveen Sharma).
On the basis thereof, without affording opportunity to PW-39 to explain
any short comings, the defence seeks to rely upon the same. However,
that itself is not sufficient to dislodge the un-controverted testimony of
PW39 (Sh. Anil Mehra).
29.1.9 Similarly, when PW5 Brig (Retd.) S.K. Choudhary
appeared to prove sanction order Ex. PW5/A, his testimony on his
competency and application of mind was not controverted. Yet,
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subsequently, during defence evidence accused Deen Bandhu Prashad
examined Sh. Praveen Sharma who merely produced file No.
5(10)/Vig./Ao/NCC/2014 which was never put for explanation to the
sanctioning authority, for deficiencies, if any. Here, what can also be
observed from File no. 7(A)/2/2006/D that as accused R.B. Chauhan and
accused Deen Bandhu Prashad were non-gazetted officers , the file was
sent to the HODs of the Family Welfare Department and NCC
Department where they were posted. The onus was upon the accused
persons to show that the HODs were not competent to remove them
from service. There is a presumption under Section 114 Illustration (e),
Indian Evidence Act, 1872 that official acts have been regularly
performed and so, with no credible material, the regularity in marking
the matter to the aforesaid HODs is not rebutted.
29.1.10 Additionally, the Court also seeks to place reliance upon
State of Bihar and Ors. Vs. Rajmangal Ram82 wherein it has been held as
under :
“5. The object behind the requirement of grant of sanction to
prosecute a public servant need not detain the court save and
except to reiterate that the provisions in this regard either under
the Code of Criminal Procedure or the Prevention of Corruption
Act, 1988 are designed as a check on frivolous, mischievous
and unscrupulous attempts to prosecute a honest public servant
for acts arising out of due discharge of duty and also to enable
him to efficiently perform the wide range of duties cast on him
by virtue of his office. The test, therefore, always is–whether
the act complained of has a reasonable connection with the
discharge of official duties by the government or the public
servant. If such connection exists and the discharge or exercise
of the governmental function is, prima facie, founded on the
bonafide judgment of the public servant, the requirement of
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sanction will be insisted upon so as to act as a filter to keep at
bay any motivated, ill-founded and frivolous prosecution
against the public servant. However, realising that the dividing
line between an act in the discharge of official duty and an act
that is not, may, at times, get blurred thereby enabling certain
unjustified claims to be raised also on behalf of the public
servant so as to derive undue advantage of the requirement of
sanction, specific provisions have been incorporated in Section
19(3) of the Prevention of Corruption Act as well as in Section
465 of the Code of Criminal Procedure which, inter alia, make
it clear that any error, omission or irregularity in the grant of
sanction will not affect any finding, sentence or order passed by
a competent court unless in the opinion of the court a failure of
justice has been occasioned. This is how the balance is sought
to be struck.
emphasis supplied
29.1.11 Therefore, the argument that sanction orders Ex. PW5/A
and Ex. PW39/A are invalid is rejected as it is apparent from the
examination of the relevant witnesses that the accused persons did not
discharge the onus to avail the benefits of the precedents, circulars and
manuals relied upon by them.
29.1.12 The challenge to the sanction order (Ex. PW4/A) as per
arguments led by accused P.K. Thirwani is for non-application of mind
for non production of material upon which opinion of PW4 (Sh.
Narayanawamy) was premised. However, once DW1 (Sh. Yatin Thapar)
produced file number 7(A)/2/2006/DOV, the stand of the accused
appears self-contradictory. Even otherwise, perusal of the aforesaid file
demonstrates that sufficient material had been placed before the
sanctioning authority to form an independent opinion.
29.1.13 The prosecution has through examination of PW4 (Sh. R.
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Narayanaswami, then Worthy Chief Secretary, Govt of NCT of Delhi)
proved sanction order Ex. PW4/A. During his cross-examination,
nothing material was elicited to raise doubts either on his competency
and on non-application of mind. The witness maintained that he was
empowered to remove accused P.K.Thirwani from service as the Chief
Secretary and thus, was competent to grant sanction for prosecution
under Section 19 of P.C. Act. As regards non-application of mind, the
witness has denied the same. What can be evaluated from file no.
7(A)/2/2006/DOV/part file produced by DW1 (Sh. Yatin Thapar) is that
sufficient material to form an opinion whether prosecution should not be
launched as it is frivolous, mischievous and unscrupulous.
30. Now proceedings on merits, at the outset, the Court deems
it appropriate to observe that even though the charge framed may not
specifically mention certain details and ingredients of offences under
sub-clauses (i), (ii) and (iii) of Section 13(1)(d) of P.C. Act, it would not
be material as no error or omission or irregularity occasioned
substantial prejudice as the particulars of the actions have already been
explained in the charge framed against the accused persons. Reliance is
placed upon Runu Gosh Vs. CBI (Supra).
30.1 Criminal misconduct has been defined in Section 13 of P.C.
Act stipulates as under:
“13. Criminal misconduct by a public servant :
1. A public servant is said to commit the offence of criminal
misconduct –
…
…
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…
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself
or for any other person any valuable thing or pecuniary advantage ;
or
(iii) while holding office as a public servant, obtains for any person
any valuable thing or pecuniary advantage without any public
interest ; or”
and is punishable under Section 13(2) of P.C. Act as under :
“13(2) Any public servant who commits criminal misconduct shall
be punishable with imprisonment for a term which shall be not less
than [four years] but which may extend to [ten years] and shall also
be liable to fine.”
30.2 Also, Section 15 of P.C. Act provides as under :
“15. Punishment for attempt – whoever attempts to commit an
offence referred to in clause (c) or clause (d) of sub-section (1) of
section 13 shall be punishable with imprisonment for a term [which
shall not be less than two years but which may extend to five
years].”
30.3 It is trite law that while trying offence under Section 13(1)
(d) read with Section 13(2) of P.C. Act, the Court does not punish a
public servant for erroneous decision, but for corruption. The essential
ingredients required to be proved for conviction under Section 13(1)(d)
of P.C. Act has been crystallized as under in Neeraj Dutta Vs. State
(Govt. of NCT of Delhi)83.
“5. Section 13(1)(d) of the Act has the following ingredients which
have to be proved before bringing home the guilt of a public
servant,namely, –
(i) the accused must be a public servant;
(ii) by corrupt or illegal means, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or by abusing his83 Crl Appeal No. 1669 of 2009
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position as public servant, obtains for himself or for any other person
any valuable thing or pecuniary advantage; or while holding office as
public servant, obtains for any person any valuable thing or pecuniary
advantage without any public interest.
iii) to make out an offence under Section 13(1)(d), there is no
requirement that the valuable thing or pecuniary advantage should have
been received as a motive or reward.
iv) an agreement to accept or an attempt to obtain does not fall within
Section 13(1)(d).
vi) mere acceptance of any valuable thing or pecuniary advantage is
not an offence under this provision.
vii) therefore, to make out an offence under this provision, there has to
be actual obtainment.
viii) since the legislature has used two different expressions namely
“obtains” or “accepts”, the difference between these two must be
noted.
6. In Subash Parbat Sonvane vs. State of Gujarat (2002) 5SCC 86
(“Subash Parbat Sonvane”), it was observed that mere acceptance of
money without there being any other evidence would notbe sufficient
for convicting the accused under Section 13(1)(d). In Sections 7 and
13(1)(a) and (b) of the Act, the legislature has specifically used the
word “accepts” or “obtains”. As against this, there is departure in the
language used in sub-section (1)(d) of Section 13 and it has omitted the
word “accepts” and has emphasized on the word “obtains”. In sub-
clauses (i), (ii) and (iii) of Section 13(1)(d), the emphasis is on the
word”obtains”. Therefore, there must be evidence on record that the
accused”obtains” for himself or for any other person, any valuable
thing or pecuniary advantage by either corrupt or illegal means or by
abusing his position as a public servant or that he obtained for any
person any valuable thing or pecuniary advantage without any public
interest.
It was further observed with reference to Ram Krishan vs. State
of Delhi AIR 1956 SC 476 (“Ram Krishan”), that for the purpose of
Section 13(1)(a) and (b) of the Act:
“It is enough if by abusing his position as a public servant a man
obtains for himself any pecuniary advantage, entirely irrespective of
motive or reward for showing favour or disfavour.”
30.4 Thereafter, in para no. 8, the Apex Court has explained that
expression “accept” means “to take” or “receive” with a consenting
mind. Further, that consent can be proved by leading evidence of prior
agreement and from circumstances surrounding the transaction itself
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without proof of such agreement. So far as the term “obtain” is
concerned, it has been explained to mean “secure” or “gain”
(something) as a result of request or effort. On the case of obtainment,
the initiative vests in the person who receives and in that context a
demand or request from him will be primary requisite for an offence as
it has been held as under:
“8. ….. According to this Court, “obtain” means to secure or gain
(something) as a result of request or effort. In the case of obtainment,
the initiative vests in the person who receives and, in that context, a
demand or request from him will be a primary requisite for an
offence under Section 5(1)(d) of the 1947 Act unlike an offence
under Section 161 of the Indian Penal Code (for short, ‘IPC‘).,
which, can be,established by proof of either “acceptance” or
“obtainment”.
“68. What emerges from the aforesaid discussion is summarised as
under:
(a) Proof of demand and acceptance of illegal gratification by a
public servant as a fact in issue by the prosecution is a sine qua non
in order to establish the guilt of the accused public servant under
Sections 7 and 13 (1)(d) (i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution
has to first prove the demand of illegal gratification and the
subsequent acceptance as a matter of fact. This fact in issue can be
proved either by direct evidence which can be in the nature of oral
evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and
acceptance of illegal gratification can also be proved by
circumstantial evidence in the absence of direct oral and
documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and
acceptance of illegal gratification by the public servant, the following
aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being
any demand from the public servant and the latter simply accepts the
offer and receives the illegal gratification, it is a case of acceptance
as per Section 7 of the Act. In such a case, there need not be a prior
demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the
bribe giver accepts the demand and tenders the demanded
gratification which in turn is received by the public servant, it is a
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case of obtainment. In the case of obtainment, the prior demand for
illegal gratification emanates from the public servant. This is an
offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver
and the demand by the public servant respectively have to be proved
by the prosecution as a fact in issue. In other words, mere acceptance
or receipt of an illegal gratification without anything more would not
make it an offence under Section 7 or Section 13 (1)(d), (i) and
(ii)respectively of the Act. Therefore, under Section 7 of the Act, in
order to bring home the offence, there must be an offer which
emanates from the bribe giver which is accepted by the public
servant which would make it an offence. Similarly, a prior demand
by the public servant when accepted by the bribe giver and in turn
there is a payment made which is received by the public
servant,would be an offence of obtainment under Section 13 (1)
(d)and (i) and (ii) of the Act.
e) The presumption of fact with regard to the demand and acceptance
or obtainment of an illegal gratification may be made by a court of
law by way of an inference only when the foundational facts have
been proved by relevant oral and documentary evidence and not in
the absence thereof. On the basis of the material on record, the Court
has the discretion to raise a presumption of fact while considering
whether the fact of demand has been proved by the prosecution or
not. Of course, a presumption of fact is subject to rebuttal by the
accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns ‘hostile’, or has died or is
unavailable to let in his evidence during trial, demand of illegal
gratification can be proved by letting in the evidence of any other
witness who can again let in evidence, either orally or by
documentary evidence or the prosecution can prove the case by
circumstantial evidence. The trial does not abate nor does it result in
an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the
facts in issue, Section 20 mandates the court to raise a presumption
that the illegal gratification was for the purpose of a motive or reward
as mentioned in the said Section. The said presumption has to be
raised by the court as a legal presumption or a presumption in law. Of
course, the said presumption is also subject to rebuttal. Section 20
does not apply to Section 13 (1) (d) (i) and (ii) of the Act.(h) We
clarify that the presumption in law under Section 20 of the Act is
distinct from presumption of fact referred to above in point (e) as the
former is a mandatory presumption while the latter is discretionary in
nature.”
emphasis supplied
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30.5 Very recently in the State of Karnataka Vs. Chandrasha84,
the Supreme Court has yet again reiterated the dictum in Neeraj Dutta
Vs. State (Govt of NCT of Delhi) (supra).
30.6 Also, in A. Subair Vs. State of Kerala 85 it has been held as
under :
“8. Insofar as Section 13 (1)(d) of the Act is concerned, its essential
ingredients are: (i) that he should have been a public servant; (ii)
that he should have used corrupt or illegal means or otherwise
abused his position as such public servant and (iii) that he should
have obtained a valuable thing or pecuniary advantage for himself
or for any other person.
9. In the case of C.K. Damodaran Nair v. Government of India86, this
Court had an occasion to consider the word “obtained” used in
Section 5(1 )(d) of the Prevention of Corruption Act, 1947 (now
Section 13(1)(d) of Act, 1988), and it was held:
“12. The position will, however, be different so far as an offence
under Section 5(1)(d) read with Section 5(2)of the Act is concerned.
For such an offence prosecution has to prove that the accused
“obtained” the valuable thing or pecuniary advantage by corrupt or
illegal means or by otherwise abusing his position as a public
servant and that too without the aid of the statutory presumption
under Section 4(1) of the Act as it is available only in respect of
offences under Section 5(1)(a) and (b) – and not under Section 5(1)
(c), (d) or (e) of the Act. “Obtain” means to B secure or gain
(something) as the result of request or effort (Shorter Oxford
Dictionary). In case of obtainment the initiative vests in the person
who receives and in that context a demand or request from him will
be a primary requisite for an offence under Section 5(1)(d) of the
Act unlike an offence under Section 161 IPC, which, as noticed
above, can be, established by proof of either “acceptance” or
“obtainment”.”
10. The legal position is no more res integra that primary requisite
of an offence under Section 13(1 )(d) of the Act is proof of a
demand or request of a valuable thing or pecuniary advantage from
the public servant. In other words, in the absence of proof of
demand or request from the public servant for a valuable thing or
84 2024 INSC 928
85 [2009] 9 S.C.R. 1058
86 (1997) 9 SCC 477
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pecuniary advantage, the offence under Section 13(1)(d) cannot be
held to be established.”
Thus, proof of demand or request for valuable thing or pecuniary
advantage emanating from a public servant is a material ingredient to
be proved for Sec 13(1)(d)(i) and (ii) either by direct evidence or to be
inferred from circumstantial evidence.
30.7 Further, so far as offence defined under Section 13(1)(d)(ii)
of P.C. Act is concerned, it requires that the public servant “abused his
position as a public servant” and obtained for himself or any other
person, any valuable thing or pecuniary advantage. In Narayanan
Nambiar Vs. State of Kerala87 while dealing with erstwhile Section 5(1)
(d) of P.C. Act, 1947, “abuse” was interpreted as misuse i.e. using the
position for something for which it is not intended. Hence, decision /
conduct of public servant must be dishonest amounting to corruption.
Further, in C. Surendranath and Anr. Vs. State of Kerala 88, the Kerala
High Court has observed as under :
“12. A reading of Section 13(1)(d) of the PC Act would reveal
that a public servant can be prosecuted only if he has abused his
position as a public servant and obtained for himself or any other person
any valuable thing or pecuniary advantage. The intention of the
legislation is not to punish a public servant for erroneous decision, but
to punish for corruption. To fall within the four corners of sub-clause
(ii) of Clause (d) of sub-section (1) of Section 13 of the PC Act, the
decision/conduct of the public servant must be dishonest, amounting to
corruption.
13. To attract the term ‘abuse’ as contained in Section 13(1)(d) of the
PC Act, the prosecution has to establish that the official concerned used
his position for something it is not intended. The sum and substance of
the discussion is that dishonest intention is the gist of the offence under
87 AIR 1963 SC 1116
88 Crl. M.C. No. 1071/2022 dated 17.01.2024CBI vs Narayan Diwakar and Ors.
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Section 13(1)(d) of the PC Act.”
30.8 Also in Runu Ghosh Vs. CBI (Supra) , it has been
explained as under :
“130. Now, the expression “abuse” of office by an accused is not new;
it has been in the lexicon – in the context of corruption laws, for over
six and a half decades. The best exposition of what action would be
“abuse” is to be found in Narayana Nambiar (supra):
The juxtaposition of the work ‘otherwise’ with the words
‘corrupt or illegal means’, and the dishonest implicit in the
word ‘abuse’ indicate the necessity for a dishonest intention
on his part to bring him within the meaning of the clause.
Whether he abused his position or not depends upon the
facts of each case.
131. Counsel for the parties have referred to several decisions, which
have been noticed and dealt with in an earlier part of this judgment. For
an act to be “abuse” there is a need to prove an element of dishonesty.”
30.9 Distinctively, Section 13(1)(d)(iii) of P.C. Act defines
criminal misconduct by a public servant to also include an act of the
public servant who while holding office as such public servant obtains
for any other person any valuable thing or pecuniary advantage without
any public interest. In Runu Ghosh Vs. CBI (Supra), in paragraph no.
66, it has been held that to prove the offence under Section 13(1)(d)(iii),
“What the prosecution has to establish, in accordance with law, is that
the public officer obtained for someone else-not necessarily by abusing
his office, or using corrupt or illegal means – pecuniary advantage or a
valuable thing – without public interest.
30.10 Public interest has been explained in Babu Ram Verma Vs.
State of Uttar Pradesh ( decided on 12.07.1971) as under :-
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“17. What is the meaning and scope of “public interest.”? Public
interest in common parlance means an act beneficial to the general
public. An action taken in public interest necessarily means an
action taken for public purpose; public interest and public purpose
are well-known terms, which have been used by the framers of our
Constitution in Articles 19, 31 and 304(b). It is impossible to
precisely define the expression ‘public interest’ or ‘public purpose’.
The requirements of public interest vary from case to case. In each
case, all the facts and circumstances would require a close
examination in order to determine whether the requirements of
public interest or public purpose were satisfied.”
emphasis supplied
30.11 In Runu Ghosh Vs. CBI (Supra), the Delhi High Court
further observed as under:
“126 ……As long as any decision of a Minister or executive
agency is based on reason, and is not arbitrary, or does not suffer
from the odium of ulterior motives, or is not based on irrelevant
considerations, courts will not question its wisdom. However, the
test always in such cases is whether the decision was such as
someone acting reasonably, on the basis of the materials
available, would have taken. The test of public interest is
paramount; if it appears that the decision is taken without public
interest in mind, and unreasonably or manifest disregard to the
consequence that such act would be severe undermining of public
interest, and that such decision would result in a third party
obtaining pecuniary advantage, without public interest, the
decision maker has to take responsibility for the consequences.”
emphasis supplied
30.12 It is also no longer res integra that whereas, to drive home
the criminality of offences punishable under Section 13(1)(d)(i)&(ii) of
P.C. Act, it is incumbent on the prosecution to prove dishonest intention,
it is not essential to prove mens rea to convict an accused for offence
punishable under Section 13(1)(d)(iii) of P.C. Act. Reliance is placed
upon Runu Ghosh Vs. CBI (Supra) wherein it is held as under:
“70. There is no doubt that Section 13 (1) (d) (iii) differs from other
parts of the Act, not only in structure, but also in substance. The use
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of terms such as “habitually accepts” “agrees to accept” “attempts”
“consideration which he knows to be inadequate” “dishonestly or
fraudulently misappropriates..” (property “entrusted to him or
“allows any other person so to do”); “corrupt or illegal” “abusing his
position” are clear pointers to Parliamentary intention that mens rea
is essential to be proved in relation to the offences provided for
under Section 13 (1) (a) to (d) (i) and (ii).
71. The question is, whether this setting compels the court to hold
that mens rea is, like the other provisions, a necessary pre-requisite
or pre-condition which the prosecution has to establish, from the
conduct of a public servant…..
….
73. Having regard to the previous history of the statute, the
amendments to the 1947 Act, its avowed objects and the distinctive
structure which Parliament adopted consciously, under the 1988 Act,
despite being aware of the pre-existing law, as well as the decisions
of the Court- the conclusion which this Court draws is that mens rea
is inessential to convict an accused for the offence under Section 13
(1) (d) (iii). It would be sufficient if the prosecution proves that the
public servant “obtains” by his act, pecuniary advantage or valuable
thing, to another, without public interest. The inclusion of public
interest, in the opinion of the Court, tips the scale in favour of a
construction which does not require proof of mens rea. There can be
many acts of a public servant, which result in pecuniary advantage,
or obtaining of a valuable thing to someone else; typically these may
relate to payment of royalty, grant of license or concessions,
issuance of permits, authorizations, etc. Yet, such grants,
concessions, or other forms of advantages to third parties would not
criminalize the public servant’s actions, so long as they have an
element of public interest. They (acts of the public servant) are
outlawed, and become punishable, if they are “without public
interest”.
….
77. The court, as a consequence has to determine the objective
criteria by which acts (of public servants) “without public interest”,
are to be judged, if mens rea (to obtain pecuniary advantage or
valuable thing to another) is not a necessary ingredient. This
exercise is essential because in the absence of mens rea (which has
been ruled out) the court has to say what “acts” resulting in
someone obtaining pecuniary advantage or valuable thing are
“without public interest”. Obviously the mere fact that a third party
obtains pecuniary advantage, or a valuable thing, is insufficient; a
supplier of equipment to public servants or offices, a travel agent
who makes bookings for a public agency, a businessman or
corporate group granted licenses or clearances, by departments or
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agencies of the Government, would all stand to benefit. Many of
these decisions are in fact, and all are, expected to be in public
interest. Therefore, the kind of behaviour which amounts to an “act”
resulting in someone “obtaining pecuniary advantage” or “valuable
thing” “without public interest” needs to be spelt out.
78. In a previous part of this judgment, what constitutes “public
interest” and the trust element, which informs every decision of a
public servant or agency, was discussed and emphasized. The State
in its myriad functions enters into contracts, of various kinds,
involves itself in regulation, awards or grants largesse, and holds
property. Each action of the State must further the social or
economic goals sought to be achieved by the policy. Therefore,
when a public servant‟s decision exhibits complete and manifest
disregard to public interest with the corresponding result of a third
party obtaining pecuniary advantage or valuable thing, he is
fastened with responsibility for “criminal misconduct” under
Section 13 (1) (d) (iii). There is nothing reprehensible in this
interpretation, because the “act” being “without public interest” is
the key, the controlling expression, to this offence. If one contrasts
this with “abuse” of office resulting in someone “obtaining”
“pecuniary advantage or valuable thing”, it is evident that Section
13 (1)(d) (ii) may or may not entail the act being without public
interest. This offence- under Section 13 (1) (d) (iii) advisedly does
not require proof of intent, or mens rea, because what Parliament
intended was to punish public servants for acts which were without
public interest. This kind of offence is similar to those intended to
deal with other social evils, such as food and drug adulteration,
(offences under Prevention of Food Adulteration Act, Section 13
(1), Drugs and Cosmetics Act:; Section 7 (1) Essential Commodities
Act, 1955, Section 25, Arms Act, 1959), possession of explosives,
air and water pollution, etc.
79. What then is the behaviour or act which attracts such
opprobrium as to result in criminal responsibility? It is not every act
which results in loss of public interest, or that is contrary to public
interest, that is a prosecutable offence. There can be no doubt that all
acts prejudicial to public interest, can be the subject matter of
judicial review. In those cases, courts consider whether the decision
maker transgressed the zone of reasonableness, or breached the law,
in his action. However, it is only those acts done with complete and
manifest disregard to the norms, and manifestly injurious to public
interest, which were avoidable, but for the public servant’s
overlooking or disregarding precautions and not heeding the
safeguards he or she was expected to, and which result in pecuniary
advantage to another that are prosecutable under Section 13(1) (d)
(iii). In other words, if the public servant is able to show that he
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followed all the safeguards, and exercised all reasonable
precautions having regard to the circumstances, despite which there
was loss of public interest, he would not be guilty of the offence.
The provision aims at ensuring efficiency, and responsible
behaviour, as much as it seeks to outlaw irresponsibility in public
servant‟s functioning which would otherwise go unpunished. The
blameworthiness for a completely indefensible act of a public
servant, is to be of such degree that it is something that no
reasonable man would have done, if he were placed in that position,
having regard to all the circumstances. It is not merely a case of
making a wrong choice; the decision should be one such as no one
would have taken.
…..
81. As noticed previously, the silence in the statute, about the state
of mind, rules out applicability of the mens rea or intent standard,
(i.e. the prosecution does not have to prove that the accused
intended the consequence, which occurred or was likely to occur).
Having regard to the existing law Section 13(1)(e) (which does not
require proof of criminal intent) as well as the strict liability
standards prevailing our system of law, therefore, a decision is said
to be without public interest, (if the other requirements of the
provision, i.e. Section 13(1)(d)(iii) are fulfilled) if that action of the
public servant is the consequence of his or her manifest failure to
observe those reasonable safeguards against detriment to the public
interest, which having regard to all circumstances, it was his or her
duty to have adopted.
82. It would be useful to in this context, take recourse to certain
examples. For instance, in not adopting any discernable criteria, in
awarding supply contracts, based on advertisements calling for
responses, published in newspapers having very little circulation,
two days before the last date of submission of tenders, which result
in a majority of suppliers being left out of the process, and the
resultant award of permits to an unknown and untested supplier,
would result in advantage to that individual, and also be without
public interest, as the potential benefit from competitive bids would
be eliminated. Likewise, tweaking tender criteria, to ensure that only
a few applicants are eligible, and ensure that competition (to them)
is severely curtailed, or eliminated altogether, thus stifling other
lines of equipment supply, or banking on only one life saving drug
supplier, who with known inefficient record, and who has a history
of supplying sub-standard drugs, would be acts contrary to public
interest. In all cases, it can be said that the public servant who took
the decision, did so by manifestly failing to exercise reasonable
proper care and precaution to guard against injury to public interest,
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which he was bound, at all times to do. The intention or desire to
cause the consequence may or may not be present; indeed it is
irrelevant; as long as the decision was taken, which could not be
termed by any yardstick, a reasonable one, but based on a complete
or disregard of the consequence, the act would be culpable.
83. The test this Court has indicated is neither doctrinaire, nor
vague; it is rooted in the Indian legal system. A public servant acts
without public interest, when his decision or action is so
unreasonable that no reasonable man, having regard to the entirety
of circumstances, would have so acted; it may also be that while
deciding or acting as he does, he may not intend the consequence,
which ensues, or is likely to ensue, but would surely have
reasonable foresight that it is a likely one, and should be avoided.
To put it differently, the public servant acts without public interest,
if his action or decision, is by manifestly failing to exercise
reasonable precautions to guard against injury to public interest,
which he was bound, at all times to do, resulting in injury to public
interest. The application of this test has to necessarily be based on
the facts of each case; the standard however, is objective. Here, one
recollects the following passage of Justice Holmes in United States
v. Wurzbach 1930 (280) US 396:
“Wherever the law draws a line there will be cases very near
each other on opposite sides. The precise course of the line
may be uncertain, but no one can come near it without knowing
that he does so, if he thinks, and if he does so it is familiar to
the criminal law to make him take the risk.”
emphasis supplied
30.13 This Court is also conscious that the prosecution primarily
is relying upon circumstantial evidence to drive home the criminality of
the accused persons and it is settled law that in cases which are premised
upon circumstantial evidence , the inference of guilt of an accused can
only be made if all incriminating facts and circumstances are
incompatible with the innocence of the accused or any other reasonable
hypothesis other than his guilt and the Court has to ensure that chain of
events are cogent and leave no reasonable doubt in the judicial mind.
Reliance is placed upon Neeraj Dutta Vs. State (Govt. of N.C.T. of
CBI vs Narayan Diwakar and Ors.
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Delhi) (Supra). Here, the Court also draws strength from the following
observations in Runu Ghosh Vs. CBI (supra):
“132. As regards criminal conspiracy, that is one, under Section 120-
B, IPC. The gist of what constitutes the offence was summed up
pithily by the Supreme Court, in E.G. Barsay v. State of Bombay AIR
1961 SC 1762 (an enunciation that was affirmed and applied in
several later decisions, such as Ajay Aggarwal v Union of India 1993
(3) SCC 609; Yashpal Mittal v State of Punjab 1977 (4) SCC 540;
State of Maharastra v Som Nath Thapa 1996 (4) SCC 659;
Firozuddin Basheeruddin v. State of Kerala, (2001) 7 SCC 596):
―The gist of the offence is an agreement to break the law. The parties
to such an agreement will be guilty of criminal conspiracy, though the
illegal act agreed to be done has not been done. So too, it is not an
ingredient of the offence that all the parties should agree to do a
single illegal act. It may comprise the commission of a number of
acts. Under Section 43 of the Indian Penal Code, an act would be
illegal if it is an offence or if it is prohibited by law. Under the first
charge the accused are charged with having conspired to do three
categories of illegal acts, and the mere fact that all of them could not
be convicted separately in respect of each of the offences has no
relevancy in considering the question whether the offence of
conspiracy has been committed. They are all guilty of the offence of
conspiracy to do illegal acts, though for individual offences all of
them may not be liable.
133. There is no doubt that evidence of criminal conspiracy is hard to
come by. When such agreements are made, people are not expected to
commit themselves in writing; nor are all conspirators necessarily
aware of the entire plan, which may be known only to a handful.
However, for the Court to draw a conclusion that there was criminal
intent, and meeting of minds, there has to be strong circumstantial
evidence pointing to the conspiracy….
….
151. ….. Halsbury’s Laws of England (Fourth Edition, Volume 11,
Para 58) states that:
―Conspiracy consists in the agreement of two or more persons to do
an unlawful act, or to do at lawful act by unlawful means. It is an
indictable offence at common law, the punishment for which is
imprisonment or fine or both in the discretion of the court. The
essence of the offence of conspiracy is the fact of combination by
agreement. The agreement may be expressed or implied or in part
express and in part implied. But the conspiracy arises and the offence
is committed as soon as the agreement is made; and the offence
continues to be committed so long as the combination persists, that is
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until the conspiratorial Egremont is terminated by completion of its
performance or by abandonment or frustration or however it may be.
The actus reus in a conspiracy is the agreement to Exh. you to the
illegal conduct, not the execution of its. It is not enough that two or
more persons pursued the same unlawful object at the same time or in
the same place; it is necessary to show a meeting of minds, a
consensus to effect an unlawful purpose. It is not however, necessary
that each conspirator should have been in communication with every
other.
152. Criminal conspiracy is likened to a march under a banner, with
the conspirator as a participant, who may continue or choose to opt
out of the march, at some stage, or join at another, without changing
the words on the banner (Ajay Agarwal v Union of India AIR 1996
SC 1637). Similarly, in Bimbadhar Pradhan v State of Orissa AIR
1956 SC 469, the nature of the offence (of criminal conspiracy) was
explained as follows:
―the offence of criminal conspiracy consists in the very agreement
between two or more persons to commit a criminal offence
irrespective of the further consideration whether or not those offences
have actually been committed. The very fact of the conspiracy
constitutes the offence and it is immaterial whether anything has been
done in pursuance of the unlawful agreement. But in this case the
finding is not that Government money had not been misappropriated
or that the accounts had not been falsified…
In State of Maharstra v Som Nath Thapa 1996 (4) SCC 649,
the Supreme Court stated as follows:
..to establish a charge of conspiracy knowledge about indulgence in
either an illegal act or a legal act by illegal means is necessary. In
some cases, intent of unlawful use being made of the goods or
services in question may be inferred from the knowledge itself. This
apart, the prosecution has not to establish that a particular unlawful
use was intended, so long as the goods or service in question could not
be put to any lawful use. Finally, when the ultimate offence consists of
a chain of actions, it would not be necessary for the prosecution to
establish, to bring home the charge of conspiracy, that each of the
conspirators had the knowledge of what the collaborator would do…
153. Direct evidence is seldom forthcoming to establish conspiracy.
Stealth privacy and secrecy are usually its hallmarks. More often than
not, Courts have to infer conspiracies on the basis of the facts and all
the surrounding circumstances. The conduct of what the alleged
conspirators do and the trail they leave in their wake is often
determinative weather they commit the crime. It was held
(Mohammed Usman Mohammed Hussain Maniyar v State of
Maharastra AIR 1981 SC 1062) that for an offence under Section
120B IPC, the prosecution need not necessarily prove that the
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perpetrators expressly agreed to do or cause to be done the illegal act,
the agreement may be proved by necessary implication.
154. In this case, there is no direct evidence to establish criminal
conspiracy. It is in such cases that the Court considers the totality of
circumstances.
…
…and the circumstance so proved should point to only the accused
being the author of the crime, and none else. …”
30.14 Reverting to the facts of the present case, the Court is now
proceeding to analyze the role played by the public servants in revival of
Delhi Census CGHS. The Court shall also scrutinize the role of the
accused public servants to ascertain if they were acting in conspiracy
with each other and private persons with the larger objective of
cancelling the winding up order of Delhi Census CGHS on the basis of
fake documents and membership and attempting to seek allotment of
land at per-determined rate to Delhi Census CGHS which was in the
control of few private persons.
30.15 It would also be convenient to refer to the provisions of
DCS Act, 1972 and DCS Rules, 1973 that governed the liquidation of a
CGHS and is subsequent revival.
30.16 Chapter IX of DCS Act, 1972 deals with winding up of
Cooperative Societies and the sections relevant to the present
controversy stipulates as under :
“”63. Winding up of co-operative societies.
(1)If the Registrar, after an inquiry has been held under section
55, or an inspection has been made under section 56, or on
receipt of an application made by not less than three-fourths of
the members of a co-operative society, is of opinion that the
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society ought to be wound up, he may issue an order directing it
to be wound up.
(2)The Registrar may of his own motion make an order
directing the winding up of a co-operative society-(a)where it is
a condition of the registration of the society that the society
shall consist of at least ten members and the number of
members has been reduced to less than ten, or(b)where the co-
operative society has not commenced working or has ceased to
function in accordance with co-operative principles.
(3)The Registrar may cancel an order for the winding up of a
co-operative society, at any time, in any case where, in his
opinion, the society should continue to exist.
(4)A copy of such order shall be communicated by registered
post to the society and to the financing institutions, if any, of
which the society is a member.
(5)Notwithstanding anything contained in this section no co-
operative bank shall be wound up except with the previous
sanction in writing of the Reserve Bank.
66. Liquidator.
(1)Where the Registrar has made an order under section 63 for
the winding up of a co-operative society, the Registrar may
appoint a liquidator for the purpose and fix his remuneration.
(2)A liquidator shall, on appointment, take into his custody or
under his control all the property, effects and actionable claims
to which the society is or appears to be entitled and shall take
such steps as he may deem necessary or expedient, to prevent
loss or deterioration of, or damage to, such property, effects
and claims. He may carry on the business of the society so far
as may be necessary with the previous approval of the
Registrar.
(3)Where an appeal is preferred under section 76, an order of
winding up of a co-operative society made under section 63
shall not operate thereafter until the order is confirmed in
appeal:Provided that the liquidator shall continue to have
custody or control of the property, effects and actionable
claims mentioned in sub-section (2) and have authority to take
the steps referred to in that sub-section.
(4)Where an order of winding up of a co-operative society is set
aside in appeal, the property, effects and actionable claims of
the society shall revest in the society.
67. Powers of liquidator.
(1)Subject to any rules made in this behalf, the whole of the
assets of a co-operative society, in respect of which an order for
winding up has been made, shall vest in the liquidator
appointed under section 66 from the date on which the order
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takes effect and the liquidator shall have power to realise such
assets by sale or otherwise.
(2)Such liquidator shall also have power, subject to the control
of the Registrar,-
(a)to institute and defend suits and other legal proceedings on
behalf of the co-operative society by the name of his office;
(b)to determine from time to time the contribution (including
debts due and costs of liquidation) to be made or remaining to
be made by the members or past members or by the estates or
nominees, heirs or legal representatives of deceased members
or by any officers or former officers, to the assets of the society;
(c)to investigate all claims against the co-operative society and
subject to the provisions of this Act, to decide questions of
priority arising between claimants;
(d)to pay claims against the co-operative society including
interest up to the date of winding up according to their
respective priorities, if any, in full or rateably, as the assets of
the society may permit; the surplus, if any, remaining after
payment of the claims being applied in payment of interest
from the date of such order of winding up at a rate fixed by
him but not exceeding the contract rate in any case;
(e)to determine by what persons and in what proportions the
costs of the liquidation are to be borne;
(f)to determine whether any person is a member, past member
or nominee of deceased member;
(g)to give such directions in regard to the collection and
distribution of the assets of the society as may appear to him to
be necessary for winding up the affairs of the society;
(h)to carry on the business of the society so far as may be
necessary for the beneficial winding up of the same;
(i)to make any compromise or arrangement with creditors or
persons claiming to be creditors or having or alleging to have
any claim, present or future, whereby the society may be
rendered liable;
(j)to make any compromise or arrangement with any person
between whom and the society there exists any dispute and to
refer any such dispute to arbitration;
(k)after consulting the members of the society, to dispose of
the surplus, if any, remaining after paying the claims against
the society, in such manner as may be prescribed; and
(l)to compromise all calls or liabilities to calls and debts and
liabilities capable of resulting in debts, and all claims, present
or future, certain or contingent, subsisting or supposed to
subsist between the society and a contributory or alleged
contributory or other debtor or person apprehending liability to
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the co-operative society and all questions in any way relating to
or affecting the assets or the winding up of the society on such
terms as may be agreed and take any security for the discharge
of any such call, liability, debt or claim and give a complete
discharge in respect thereof.
(3)When the affairs of a co-operative society have been wound
up, the liquidator shall make a report to the Registrar and
deposit the records of the society in such place as the Registrar
may direct.”
30.17 In assistance thereof, Chapter 9 of DCS Rules, 1973
provides as under :
“94. Procedure for issue of Winding up Order.
1. Before passing the order under section 63, the Registrar shall give
an opportunity to the society to show cause against the proposed
order. The show cause notice shall be sent to the President of the
Society as its registered address under registered post. The service
of this notice will be complete after 48 hours of the posting of the
letter properly addressed and pre-paid, containing the notice. The
notice shall state the grounds on which the order under section 63 is
proposed to be made.
2. After considering the reply from the Society which shall be
supported by the resolution its committee, or if no reply is received
by the Registrar within fifteen days of the service of the notice
under sub-rule (1), he Shall proceed to pass the order under section
63.
3. The order passed under section 63 and sub-section (1) of section
66 shall be communicated to the President of the society in the
manner specified under sub-section (4) of section 63, at the
registered address of the Society. The communication will be
complete as soon as the letter containing the order is so posted.
4. The order referred to in sub-rule (3) shall also be published in the
official Gazettee.
5. The order referred to in sub-rule (3) shall take effect from the date
of order notwithstanding whether or not it is published in the official
Gazette and shall operate in favour of all creditors, contributories,
debtors and any other persons, having custody, possession and
control over any asset or record of the society.
96. Procedure to be followed by the Liquidator
1. The liquidator shall, as soon as the order of winding up of a co-
operative society takes effect, publish by such means as he may
think proper, a notice requiring all claims against the co-operative
society, the winding up of which has been ordered to be submitted to
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him within one month of the publication of the notice. All liabilities
recorded in the account book of a co-operative society shall be
deemed if so facto have been duly submitted to him under this sub-
rule.
2. The liquidator may fix time within which the creditors are to
prove their debts or claims. If no claim is made within two months
of the date of order of winding up, the liquidator may refuse to
entertain such claims.
3. The liquidator soon after his appointment shall take charge of the
books of accounts and other documents of the society and all its
assets. There shall be prepared immediately on the relevant date a
statement as to affairs of the society containing the following
particulars:-
(a) the assets of the society stating separately the case balance in
hand and at the Bank, if any, and the negotiable securities, if any,
held by the society;
(b) its debts and liabilities;
(c) the names and addresses and occupation of its creditors stating
separately the amount of secured and unsecured debts and in the
case of secured debts, particulars of the securities given;
(d) the debts due to the society and the names, residences and
occupations of the persons from whom they are due and amount
due; and
(e) such other information as may be called by the Registrar.
4. The statement required to be prepared under sub-rule (3) shall be
made on the basis of the record of the society. audit reports, and on
the basis of the statements made by the members of the committee
at the relevant date or by the person who is at that date, the
Manager, Secretary or Treasurer or other officer of the Society. The
liquidator shall examine them on oath. This statement shall be
submitted by the liquidator to the Registrar within twenty one days
of the date of his appointment or within such extended time not
exceeding three months from the date of the said order.”
30.18 As per Section 89 of DCS Act, 1972 liquidator is also a
public servant within the meaning of Section 21 of The IPC.
30.19 So far as cancellation of winding up order of a CGHS is
concerned, the Registrar of the Cooperative Societies derives his power
from Section 63(3) of DCS Act, 1972.
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31. Admittedly, vide order dated 23.03.1979 [(copy of which is
on page no. 132 of file Ex. PW55/G (colly) (D-12), (Vol-I)], Sh. Ashok
Bakshi, then Deputy Registrar had passed an order for winding up of
Delhi Census CGHS for non-compliances of the provisions of DCS
Act, 1972 and had appointed Sh. M.L. Pahuja as the Liquidator for
Delhi Census CGHS. Copy of the order was issued to the Liquidator and
the erstwhile President / Secretary of Delhi Census CGHS at its office at
1424 Lakshmi Bai Nagar, Delhi apart from other offices mentioned on
it. Thereafter, after a lapse of almost 25 years application for
cancellation of winding up order (dated 01.03.2004) of Delhi Census
CGHS, dated 27.12.2003 was moved on 06.01.2004 against diary no.
2591 [pages 1/C and 2/C of file Ex. PW55/G (colly) (D-12), (Vol-I)].
31.1 Upon receipt of the application, (purportedly moved by the
Secretary, whose identity was not established during trial), accused R.B.
Chauhan as Dealing Assistant put up the first note on 09.01.2004. As
per the same, it was suggested that since the file of Delhi Census CGHS
was not traceable in the Zone, circular be issued to all Zones in this
regard. Accordingly, on approval on even date by accused Sita Ram
Goyal (since deceased) and Narayan Diwakar, on 13.01.2004, a draft
circular was signed which is on page no. 3/C [(of file Ex. PW55/G
(colly) (D-12), (Vol-I)]. It purportedly has been received at the offices of
all Assistant Registrars of South West Zone, South, Central / New Delhi,
East, North West, North and North East on 13.01.2004, itself. It can be
noticed that there are some over writings on the dates of receipt.
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However, as per note dated 23.01.2004 [(on page 2/N of file Ex.
PW55/G (colly) (D-12), (Vol-I)], no response was received from any of
the Zones in this regard.
31.2 This circumstance is material to ascertain as to whether
sufficient efforts had been made to locate the records of Delhi Census
CGHS and to not have created an opportunity for the miscreants to seek
cancellation of the revival order of Delhi Census CGHS on fabricated
records. On consideration of material on record what can be assessed is
that adequate steps were not taken to locate the record of Delhi Census
CGHS because (a) it was not ascertained from the appointed Liquidator
Sh. M.L. Pahuja as to whether the records were with him and whether
notice of liquidation proceedings had been issued to the managing
committee of Delhi Census CGHS and (b) even though, the copy of
Registration Certificate dated 31.05.1972 of Delhi Census CGHS is on
record [at page no.131 of file Ex. 55/G (colly), (D-12), (Vol-I)] as per
which it had its office at 1242, Lakshmi Bai Nagar, Delhi, it is not
explained by the Dealing Assistant accused R.B. Chauhan, Assistant
Registrar Sita Ram Goyal (since deceased) and accused RCS Narayan
Diwakar as to what bore on their mind to not follow up with the
concerned zone if no response was received. There is no explanation
emanating from the file [Ex. PW55/G(colly) (D-12), (Vol-I)] as to what
was the pressing urgency to act on the application moreso, when it was
moved after 25 years of the winding up order. The noting dated
23.01.2004 also demonstrates that hastily, proposal was moved for
reconstruction of the file seeking copy of Registration Certificate, Bye-
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Laws and other relevant documents from the Society and the
unexplained imperativeness to even have a draft of such a letter already
on record for approval. Pursuant thereto, on 23.01.2004 itself, accused
Sita Ram Goyal (since deceased) also signed the letter [on page 5/C of
file Ex. PW55/G(colly) (D-12), (Vol-I) also part of Ex. PW31/C (Colly)]
without having a deliberation on the same. The file noting still then
does not reflect that it was decided that the file indeed was misplaced
requiring re-construction. Requisite due diligence and reasonable care
was not exercised in tracing the file and it afforded an opportunity for
creation of false records on the basis of which intentionally the revival
order dated 01.03.2004 came to be premised. Therefore, the argument
on behalf of the accused Narayan Diwakar that in view of the findings in
the Vikas Cooperative Group Housing Society Limited (Supra) that
liquidation proceedings were not taken to its logical end and so, by
virtue of Section 105 of DCS Act,1972, Delhi Census CGHS anyways
stood revived, holds no ground as there is no material on record
evidencing that any inquiries from appropriate sources for example like
Liquidator and the Financing Bank were made in that regard. Rather,
absolute reliance has been placed upon the fictitious managing
committee of Delhi Census CGHS.
31.3 Moving forward, accused Faiz Mohd. in pursuance to
noting dated 09.01.2004 [(page 1/N of file Ex. PW55/G (colly) (D-12),
(Vol-I) also part of Ex. PW31/A (colly)] was appointed vide letter dated
13.01.2004 [(page no. 4/C of file Ex. PW55/G(colly), (D-12), (Vol-I)
also part of Ex. PW31/C (colly)] to conduct inspection of Delhi Census
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CGHS under Section 54 of DCS Act, 1972 within 15 days of the order.
However, from perusal of file [Ex. PW55/G (colly)(D-12), (Vol-1)], it is
clear that copy of the order authorizing inspection under Section 54 of
DCS Act, 1972 was not sent in compliance of Rule 86(2) of DCS Rules,
1973 to the Financing Bank. Accordingly, accused Faiz Mohd. filed
report Ex. PW52/A which for the following reasons is not well founded:
(a) As per his report, the Society was operating from WZ 1198/1, main
Bazar, Rani Bagh, Delhi where it had shifted as per decision taken in the
meeting of the managing committee on 03.05.1977 and approved by the
Special General Body Meeting dated 17.07.1977. Thus, it was brought
under the West Zone, specifically where the accused persons were
exercising their jurisdiction. In view of discussions in paragraph nos. 24
and 24.1, it has already been concluded that the Minutes of Meeting
dated 03.05.1977 and 17.07.1977 are false. As per the complaint (Ex.
PW55/B) given by Inspector Rajesh Kumar and proved by PW55
(Inspector S.C. Bhalla), it is mentioned that during preliminary enquiry
the Society was not found to be existing at the aforementioned address
and the property belonged to one Sh. V.K. Khanna who denied the
existence of the society there. However, none of the accused persons
during cross-examination have traversed the testimony of PW55 (Sh.
S.C. Bhalla) qua his proving of the complaint (Ex. PW55/B).
(b) That one Sh. Vishnu Rai, Secretary of the Society who met at the
office stated that no liquidation order had been received but application
for cancellation of winding up order [on page no. 2/C of file Ex.
PW55/G(colly) (D-12), (Vol-I)] specifically stipulates the Society was
wound up vide order no. 46/47/128/H/Coop./759 dated 23.03.1979. Still
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no enquiry was made in that regard from the Liquidator or the Deputy
Registrar on whose order winding up was directed despite the winding
up order dated 23.03.1979 mentioning that copy of the order was sent to
the Ex-Office Bearers of the Managing Committee of the Society.
Rather, blind faith was imposed on the purported verbal representation
of the purported Secretary of Delhi Census CGHS that no liquidation
order was conveyed to the Society despite the fact it was also mentioned
that all short comings in the functioning of the Society had been
removed. A question arises is that if the liquidation order was not in the
knowledge of the purported Secretary of Delhi Census CGHS, how was
there an awareness of the shortcomings that were required to be
corrected and in pursuance whereof, [from pages no. 151/C to 153/C in
file Ex. PW55/G(colly) (D-12), (Vol-I)], the purported Office Bearers of
the Managing Committee of Delhi Census CGHS gave affidavits in
support of the revival proceedings identifying the shortcomings to be
corrected which was also relied upon at the time of ordering revival of
Delhi Census CGHS. Any reasonable due diligence could have yielded
the correct factual position.
31.4 Thereafter, accused R.B. Chauhan prepared note dated
28.01.2004 [(page no. 3/N of file Ex. PW55/G(colly), (D-12), (Vol-I)]
enumerating the findings of report Ex. PW52/A of accused Faiz Mohd.,
stating that the Secretary of the Society pursuant to letter dated
21.01.2004 had submitted photocopies of documents namely
Registration Certificate, Bye-laws of the Society and Minutes of the first
meeting of the promoters. However, there is no proof of service of the
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letter upon the Office Bearers of Delhi Census CGHS either physically
or through registered post. The same were then sought to be placed
before the RCS accused Narayan Diwakar for taking them on record for
re-construction and for revival of the Society and initiation of quasi
judicial proceedings. Therefore, re-construction of file was pre-
meditated as well as vide the same noting proposal was also made for
initiation of revival proceedings by accused R.B. Chauhan and it was
endorsed by accused Sita Ram Goyal (since deceased) to the effect that
he had test checked the details and found them to be in order. In the
comprehensive note dated 16.02.2004 and specifically page no. 8/N [of
file Ex. PW55/G (colly) (D-12), (Vol-I)], accused R.B. Chauhan records
and the same is approved by accused Sita Ram Goyal (since deceased)
that “In compliance with the directions of the worthy RCS, (Page 6/N)
the Secretary of the societies has produced / submitted the original
records and documents pertaining to membership, audit and election, etc
for verification and the same was counter-checked/verified and found in
order.” Here, an unanswered question is that as per letter dated
23.01.2004, the office bearers of Delhi Census CGHS had been directed
to “arrange for submission of original records alongwith copy of
Registration Certificate, Bye-laws and other relevant documents /
correspondences” within a week and as per accused Faiz Mohd., the
original documents of CGHS were available, but within 05 days itself,
only, photocopies of the documents were submitted but there is no
noting as to when and by whom original records, if at all, were
produced upon which accused Sita Ram Goyal (since deceased) test
checked the details. There also is no application from the Office Bearers
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of Delhi Census CGHS for submission of record in compliance of letter
dated 23.01.2004 [page 5/C of file Ex. PW55/G(colly) (D-12), (Vol-I)].
Hence, there is no transparency from record as to how the documents
were received at the office of the RCS and as to whether the authenticity
was ascertained by the public servants as claimed by them considering
that re-construction of record is a salient process. This also assumes
further importance as the Reader to the RCS as per note dated
20.01.2004 [at page 5/N of file Ex. PW55/G(colly) (D-12), (Vol-I)]
records that the file was reconstructed by the Zone on the basis of the
original records and the documents shown to accused Sita Ram Goyal
(since deceased) by the President of the Society.
31.5 Yet, when the file was put up before accused Narayan
Diwakar for approval of noting dated 28.01.2004 [page no. 3/N of file
Ex. PW55/G(colly), (D-12), (Vol-I)], he merely endorsed the same for a
hearing for 03.02.2004 [(page no. 6/N of file Ex. PW55/G(colly),
(D-12), (Vol-I)] and did not question the irregularities in the conduct of
his sub-ordinates as observed above enabling the re-construction of file
on un-verified material. There is no speaking order either administrative
or quasi judicial vide which he deliberated upon the material upon
which re-construction of the file was processed. So much so that during
hearing on 03.02.2004, the order does not reflect upon the basis on
which quasi judicial proceedings for revival of the Society had been
initiated upon a “reconstructed file” for which there was no noting of
reconstruction being approved by him upon consideration of noting
dated 13.01.2004 and 23.01.2004 [page no. 2/N of file Ex.
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PW55/G(colly) (D-12), (Vol-I)]. This indicates the unspeaking approval
accorded by accused Narayan Diwakar to his sub-ordinates to continue
reconstructing the file without proper due diligence.
31.6 Rather, vide the said order a step ahead was directed for
verification of membership, audit and election by the concerned Zone
and spot verification of members. Interestingly, accused Sita Ram Goyal
(since deceased) on 05.02.2004 yet again, appointed accused Faiz
Mohd. to conduct the spot verification expeditiously (again evidencing
the urgency with which the officials had been acting) whose report Ex.
PW25/D [(in file Ex. PW55/I (colly) (D-14), (Vol-III)] is false further
creating a circumstance pointing towards the concert with which the
officials of Registrar of Cooperative Societies were acting. The falsity of
the report is evident because as per his report, he had conducted spot
verification from the following members :
s.no. M.No. Name of the
Member
01. 120 VK Taneja
02. 112 JN Aggarwal
03. 111 ND Pathak
04. 113 RP Sharma
05. 115 DG Gupta
06. 117 Uma Gupta
07. 119 Poonam
08. 118 Vishnu Rai
09. 121 Mahender Kumar
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but of them, the prosecution examined Sh. V.K. Taneja as PW26, Sh.
Umesh Aggarwal as PW25, being the son of Late (Sh.) J.N. Aggarwal,
and Smt. Poonam Vasudeva as PW34 and all the aforementioned
witnesses have unanimously testified that no physical verification had
been conducted of their membership. During their cross-examination the
defence has not been able to elicit any response which would render
their testimonies unreliable. Even though it has been argued that there is
no requirement under Section 63(3) of DCS Act, 1972 to seek any
inspection report and also that modalities for inspection are not
mentioned anywhere, in the considered view of this Court, the Registrar
is empowered to cancel an winding up order of a cooperative society at
any time, in any case where in his opinion, the society should continue
to exist. Thus, the opinion is to be premised upon credible material and
what else but assimilation of data and information that the society is
operating as per the Act. To ascertain the same, inspection under Section
54 of the Act would be necessitated. So far as the modalities for
inspection are concerned, Chapter 7 of DCS Rules, 1973 provides for
the same. Therefore, the argument is without merits. As regards the
submission that the report Ex PW52/A and Ex. PW25/D of accused Faiz
Mohd. was not the basis for revival of the Society is belied by the order
Mark A/31, itself. To raise doubts on the case of the prosecution qua
accused Faiz Mohd. merely because there is no explanation offered as to
how copies of ration cards of Sh. J.N. Aggarwal and PW26 (Sh.
Virender Kumar Taneja) came into his possession, would be taking a
myopic view as it has also been proved that the list of members of
United India Insurance CGHS has been lifted to introduce fictitious
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members in Delhi Census CGHS.
31.7 Relying upon the above material on 19.02.2004, accused
Narayan Diwakar as the RCS reserved the matter for orders on the
application. It cannot be lost sight of that at that moment, he was acting
in the quasi judicial capacity and was required to take an independent
view of the matter. However, the tenor of his order reflects that he was
merely recording the submissions of the Zonal Assistant Registrar {i.e.
accused Sita Ram Goyal (since deceased)} and also observed that the
latter had “finally recommended the case for the revival of the society.”
Further, it is observed by him that the Secretary of the Society who was
appearing in his court and whose presence is marked as Vishnu Rai,
stated that the Deputy Secretary who had passed the winding up order
dated 23.03.1979 was not competent. Upon which, the RCS observed
that the material on record did not show that such power was exercisable
by the Deputy Registrar. Ultimately, order dated 01.03.2004 came to be
passed. Accused Narayan Diwakar as the RCS should have
independently verified the jurisdiction exercised by the Deputy
Registrar and not merely acted on the representation of the Secretary of
the Society. Here, it cannot be lost sight of that there is a presumption of
genuineness of official acts under Section 114 Illustration (e) of The
Evidence Act, 1872 and it is also mentioned in Sanction Orders
Ex.PW4/A, Ex. PW5/A and Ex. PW39/A that as per order no. 9(38)/68-
Coop/8636-42 dated 18.10.1977 issued by Special Secretary (Coop.),
Delhi Administration, Delhi, the Deputy Registrar, Cooperative
Societies was conferred with all powers of the RCS under DCS Act
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1972 and DCS Rules, 1973. Also, even though accused Sita Ram Goyal
(since deceased) claimed to have perused the original records, there is
no explanation why accused Narayan Diwakar while exercising his
quasi judicial power should not have himself, independently, appreciated
the requisite material brought on record. This yet again, is a material
circumstance suggesting prior meeting of minds of the officials at the
Office of Registrar of the Cooperative Societies. Hence, the argument on
his behalf that his order for revival of Delhi Census CGHS (Mark 31/A)
was premised upon reports duly forwarded by the Assistant Registrar of
the Cooperative Society i.e. accused Sita Ram Goyal (since deceased)
after due application of mind fails to inspire any confidence. Also, the
refuge under Section 93(3) of DCS Act, 1972 is not available to the
accused as we are not questioning the decision but the manner in
conduct of accused Narayan Diwakar in passing order Mark 31/A and
the extraneous considerations in doing so.
31.8 The order for revival of Delhi Census CGHS which is dated
01.03.2004 [at page no. 163/C of file Ex. PW55/G (colly) (D-12), (Vol-
I) also Mark A/31] issued the following directions:
“In view of the facts and circumstances as stated above and taking
into consideration that no final liquidation order has been passed. I,
N Diwakar, Registrar Cooperative Societies, Govt. of NCT of
Delhi, hereby cancel the winding up order dated 23-03-1979 issued
to the DELHI CENSUS LTD (Reg. No.128/GH), in exercise of the
powers vested in me u/s 63(3) of the Delhi Cooperative Societies
Act, 1972 with immediate effect. Consequently, the DELHI
CENSUS CGHS LTD (Regd. No. 128/GH), is hereby revived with
immediate effect, as the concerned Asstt. Registrar has already
verified the list of 150 members, submitted by the Society subject
to the condition that the pending audit shall be got completed
within two months time.
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In addition to above, keeping in view the principle of
natural justice and cooperative spirit, I hereby appoint Sh. Deen
Bandhu Prasad, Gr.IV, of this department as Election Officer to
conduct the election of the Managing Committee of the Society
within two months of the issue of this order. The President /
Secretary of the Society are directed to cooperate with the Election
Officer so appointed, failing which action will be initiated against
the Society as per law.”
31.9 Hence, revival of Delhi Census CGHS was subjective to the
completion of audit within 02 months and elections of the managing
committee of the Society, also within 02 months. Accordingly, accused
Deen Bandhu Prasad steps into the picture as the Election Officer. He
filed his report Ex. PW52/B [(pages No.169C in file Ex. PW55/G
(colly) (D-12), (Vol-I)] stating that he had conducted the elections on
04.04.2004 and declared the result on the same date. He also informed
that minutes of Special General Body Meeting in that respect had been
recorded. The election result and copy of minutes of meeting (Ex.
PW34/C(colly) was also filed. However, again the sham election
proceedings stood exposed through the testimony of PW26 (Sh. V.K.
Taneja), PW-34 (Smt. Poonam Gupta) and PW36 (Sh. Umed Singh)
who stated that they were neither the members of Delhi Census CGHS
nor had joined any such CGHS. It has been argued on behalf of accused
Deen Bandhu Prashad that his election report was merely taken on
record and was not the basis for revival of Delhi Census CGHS.
However, the argument outrightly needs to be discarded as the order
(Mark 31/A) for revival of Delhi Census CGHS was subject to the
elections being conducted within 02 months.
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31.10 Finally, in pursuance of the directions contained in the
order dated 01.03.2004 (Mark 31/A) accused P.K. Thirwani has
conducted the audit of Delhi Census CGHS for the period 1971-1972 to
2002-2003 and submitted his report to the Assistant Registrar (Audit)
countersigned by him on 10.03.2004. It has been argued on behalf of
the accused that no criminality can be affixed on his conduct as his
appointment as the auditor is dated 02.03.2004 which is after the passing
of the revival order dated 01.03.2004 (Mark 31/A). However, in this
regard one cannot lose sight of the fact that order dated 01.03.2004
(Mark 31/A) was subject to pending audit being completed within two
months. Therefore, the nexus between preparation of the audit report in
file Ex. PW32/B and revival of Delhi Census CGHS stands established.
It has also been argued that there is no iota of evidence that the audit
report is false and the only witness examined qua the audit report is
PW32 (Sh. Satya Prakash Sharma) who is only a witness to the chain of
custody of the audit files. Also, refuge has sought to be taken behind the
Assistant Registrar (Audit) under whose supervision it is claimed that
the report was prepared and the genuineness of the act of accused P.K.
Thirwani is also demonstrated from his observations qua shortcomings
observed by him in his report.
31.11 Here, it would be relevant to allude to the Chapter VII of
DCS Act, 1972 which provides for the audit of the society :
“Chapter VII
Audit, Inquiry, Inspection and Surcharge
53. Audit.
(1)The Registrar shall audit or cause to be audited by a person
authorised by him by general or special order in writing in this
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behalf, the accounts of every co-operative society at least once in
each year.
(2)The audit under sub-section (1) shall include an examination of
overdue debts, if any, the verification of the cash balance and
securities, and a valuation of the assets and liabilities of the society.
(3)The person auditing the accounts of a co-operative society shall
have free access to the books, accounts, papers, vouchers, stock and
other property of such society and shall be allowed to verify its
cash balance and securities.
(4)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 as such person may require.
(5)The Registrar or the person authorised by him under sub-section
(1) to audit the accounts of a co-operative society shall have power
where necessary-
(a)to summon at the time of his audit any officer, agent, servant or
member of the society, past or present, who he has reason to
believe can give valuable information in regard to transactions of
the society or the management of its affairs; and
(b)to require the production of any book or document relating to
the affairs of, or any cash or securities belonging to, the society by
any officer, agent, servant, or member in possession of such books,
documents, cash or securities and in the event of serious
irregularities discovered during audit, to take them into custody.
(6)If at the time of audit the accounts of a society are not complete,
the Registrar or the person authorised by him under sub-section (1)
to audit, may cause the accounts to be written up at the expense of
the society.
(7)Audit fee, if any, due from any co-operative society shall be
recoverable in the same manner as is provided in section 75.”
31.12 Chapter 7 of DCS Rules, 1973 provides for the procedure
for the audit and the relevant Rule is as under :
“84. Procedure for appointment of Auditors and for conducting
Audit.
1. The audit of accounts of societies shall be conducted by
departmental auditors appointed by the Registrar or by certified
auditors appointed by the Registrar from time to time on such terms
and conditions as he deems fit.
Provided that the Registrar shall draw the panel of departmental
auditors and certified auditors in advance, at least, six months
before the close of the year so that statutory audit of society is
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complete in time to enable the society to hold its annual general
body meeting as provided under section 29 and also to file income
tax returns as prescribed under the law. Where the total sales,
turnover or gross receipts of a society exceeds Rs. 4Q,00,000/- (or
figure as amended from time to time as per Income Tax Law) in a
year, a Tax Audit under section 44(AB) of the Income Tax Act shall
also be (inducted by the certified auditors for which additional fee
shall be paid as prescribed by the Registrar from time to time. An
auditor can undertake the audit of a society for a maximum period
of three years. It shall be the duty of the society to select an auditor
from the panel approved by the Registrar and inform about the
selection to the Registrar within fifteen days of selection through
the registered post. If the society foils to get its statutory audit
completed within six months of the close of the cooperative year,
the Registrar shall be competent to get the audit conducted at the
cost risk and liability of the members of the committee of a society
who have failed to get the audit of the society conducted in time.
The fee shall be a charge against the delinquent officials of the
committee of the society and shall be recoverable as an arrears of
land revenue. (Amended on 6.8.97)
2. While fixing charges on account of services rendered by the
auditors which are payable to them, the Registrar shall beside other
things’ have regards to the turnover or sale or working capital of the
society. (Added on 9.9.88)
3. The amount fixed under clause (1) above which is payable to the
departmental auditors shall be deposited in the Govt. account and
the amount payable to the certified auditors, appointed by the
Registrar shall be paid to them directly as per provisions contained
in schedule IV of these Rules. (Added on 9.9.88)
Explanation –
1. For purposes of this Chapter, audit shall include annual or
periodical audit, continuous or concurrent audit and test or super
audit and re-audit.
2. For purpose of this rule, “a certified auditor” includes: –
(a) a Chartered Accountant with in the meaning of the Chartered
Accounts Act, 1949,
(b) a lesson who hold Govt. Diploma in Coop. Accounts or Govt.
Diploma in Cooperation and Accountancy.
(c) a person who has served as an auditor in the Co-operative
Department of any State Government or under the Registrar and
whose name has been included by the Registrar in the panel of
certified auditors maintained and published by him in the official
Gazette at least once in every year.
4. The audit under sub-section (1) ofsection53 shall in all cases
extend back to the last date of the previous audit and shall be
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carried out up to the last date of the co-operative year immediately,
preceding the audit or where the Registrar so directs in the case of
any particular society or class of societies such other date as may
be specified by the Registrar.
5. Unless the Registrar directs other wise, the audit of a co-
operative society shall be conducted in the registered office of the
society.
6. Previous intimation shall be given to the society before the audit
is commenced.
7. The officers and employees of the society shall give the audit
officers all assistance necessary for the completion of the audit and
for this purpose in particular prepare such statements and take such
action with regard to the verification or examination of its accounts
the may require.
8. (i) The audit report shall state:-
(a) whether or not the audit officer has obtained all the
information’s and explanations which he required.
(b) whether or not in his opinion the balance-sheet and the profit
and loss accounts referred to in the report are drawn up in
conformity with the law;
(c) whether or not such balance-sheet exhibits a true and correct
account of the state of affairs of the society according to the best of
his information and the explanations given to him and as shown by
the books of the society:
(d) whether, in his opinion, books and accounts have been kept by
the society as required under the Act, the rules and the bye-laws:
(e) whether there has been any material impropriety or irregularity
in the expenditure or in the realisation of money due to the society:
(ii) Where any of the matter referred to in sub-clauses (a), (b), (c)
or (d) Of clause (8) (i) is answered in the negative or in the
affirmative with any remarks, the report shall state the reason for
such answer with facts and figures, in support of such reasons.
9. The audit report shall also contain schedules with full particulars
of : –
(i) all transactions which appear to be contrary to the provisions of
the Act, the rules or the bye-laws of the society:
(ii) all sums which ought to have been brought have not been
brought into account by the society;
(iii) any material impropriety or irregularity in the expenditure or in
the realization of money due to the society;
(iv) any money or property belonging to the society which appears
to the auditor to be bad or doubtful debt; and
(v) any other matter specified by the Registrar in this behalf.
10. The summary of audit report as prepared by audit or shall be
read out in general meeting. The audit report together with its
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accompaniments shall be open to inspection by any member of the
society. The Registrar may, however, direct that any portion of the
audit report which appears to him to be of objectionable nature or
not justified by facts shall be expunged and the portion so
expunged shall not form part of the audit report.
11. The audit officer shall examine the monetary transactions of a
society in so far as may be necessary for the purpose of
ascertaining whether there has been any material impropriety or
irregularity in the expenditure for on the realization of moneys due
to the society and whether any transaction infringes any provisions
of the Act, rules or bye-laws, or any directions of the managing
committee. In case of difference of opinion between the audit
officer and the society in regard to the propriety of any of its
monetary transactions the Registrar shall decide the matter and his
decision shall be final.
12. If the result of the audit held under the last preceding rules
discloses any defects in the working of a society, the society shall,
within three months from the date of audit report, explain to the
Registrar the defects or the irregularities pointed out by the auditor,
and take steps to rectify the defects and remedy irregularities, and
report to the Registrar in Form 16 the action taken by it thereon, the
compliance report shall continue to be submitted till all the defects
are rectified or irregularities remedied to the satisfaction of the
Registrar. The Registrar may also make an order directing the
society or the officers to take such action as may be specified in the
order to remedy the defects, within the time specified therein,
where the society concerned is a member of a federal society.”
31.13 Thus the rule provides that an Auditor can undertake the
audit of the society for a maximum period of 03 years. Here the
appointment of Sh. P.K. Thirwani as the auditor for the lumpsum period
of 1971-1972 to 2002-2003 on the very day following the revival order
dated 01.03.2004 throws up unanswered questions on the conduct of the
officials of the RCS office. There is no explanation as to why accused
P.K. Thirwani undertook the audit for an extended period beyond 03
years when the directions issued to him was not as per law. There is no
material on record or led in evidence which shows that he had registered
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any protest against being assigned audit for the period not contemplated
by DCS Rules, 1973. To merely justify his acts for having been
appointed by the Assistant Registrar (Audit) who as per sanction order
Ex. PW4/A had denied having signed the audit report is not sufficient to
absolve accused P.K. Thirwani. Accused did not examine the Assistant
Registrar (Audit) to controvert the claim of the prosecution. As per
instructions to the Chartered Accountant for audit89, Clause 4 directs the
CA / Auditor to comply with provisions of Rule 84 of DCS Rules 1973.
As per the same, part B requires that it is also the duty of the Auditor to
confirm whether the society is operating from the registered office. Also,
as per Rule 84 (5) of the Act, audit was required to be done at the
registered office of the society unless the Registrar otherwise directs.
However, the audit report in file Ex. PW32/B (colly) is not in
compliance, thereof. The manner in which accused P.K. Thirwani, only
was appointed as an auditor in violation of Rule 84 of DCS Rules, 1973
and pursuance thereof, he gave an audited report spanning
approximately over 34 years without complying with mandated
requirements is a material circumstance suggesting that he acted in
conspiracy with the remaining public servants to revive Delhi Census
CGHS. Merely because certain objections / suggestions were noted by
him does not accord genuineness to his report.
31.14 On behalf of accused R.B. Chauhan, it has been submitted
that he did not submit any suggestive note and merely dealt with the file
of CGHS in a routine manner and being the lowest in rank, he had
89 As available in file Ex. 32/B alongwith copy of Option Form Cum Appointment Letter of the
CA / Auditor
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produced the notes without any addition and concealment before his
superior i.e. Assistant Registrar accused Sita Ram Goyal (since
deceased). However, the Court has already scrutinized his role above
and there is also no explanation emanating from record how the false
documents were accepted moreso, when as the Dealing Assistant, the
accused was also a custodian of the file and actively prepared notes
favouring reconstruction of the file on the basis of false documents.
31.15 In view of the above discussion, this Court is convinced
that the prosecution has led sufficient evidence to establish that the
aforementioned public servants have abused their position as public
servants and have also acted against public interest, in facilitating
cancellation of winding up order dated 29.03.1979 and consequently,
forwarding list of 150 fake members of Delhi Census CGHS to the
Assistant Registrar (Policy) for onward submission to DDA for
allotment of land to Delhi Census CGHS vide letter Ex. PW31/D in
frustration of the object of the Cooperative Group Housing Societies.
Their detailed overt acts had the capacity to allow concentration of land
parcels in the hands of the select few who could derive benefit from the
same, defeating the objective of group housing societies.
32. However, it is now to be answered whether the
incriminating circumstances discussed above which are determinative of
the identity of the accused persons as public servants, abuse of public
office and actions undertaken against public interest are sufficient to
establish the allegation of charge of Section 120B IPC readwith 15
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readwith Section 13(2) readwith Section 13(1)(d)(i),(ii)&(iii) of P.C.
Act?
33. On anxious consideration given to evidence (direct or
circumstantial), this Court is of the view that the answer has to be in the
negative due to following reasons :
(a) So far as, allegations under Section 15 readwith Section
13(2) readwith Section 13(1)(d) sub-clause (i) and (ii) of P.C. Act are
concerned, there is no iota of evidence to establish obtainment by way
of demand and acceptance / obtainment or attempt, thereof, by the
public servants either for themselves or for identifiable private
individuals.
(b) As regards offence defined under Section 15 readwith
Section 13(1)(d)(iii) of P.C. Act is concerned, attempt of obtainment of
valuable thing namely land herein, without public interest entailed
proving either directly or circumstantially that it was for accused
Ashutosh Pant and accused Munna Lal Sharma. However, the
prosecution miserably failed to establish the identity of the private
individuals for whom the accused public servants attempted to obtain,
the valuable thing / pecuniary advantage. Thus, the allegation of
conspiracy between accused public servants and private individuals,
therefore, cannot stand as the chain of circumstantial evidence is not
complete.
(c) It has not been proved that the letter for allotment of land
from the RCS Office to the Office of DDA had been sent. It has only
been proved that accused Sita Ram Goyal (since deceased) then
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Assistant Registrar (West) had sent a letter bearing no.
F.47/128/Coop/GH/W/227-28 dated 04.03.2004 Ex. PW31/D to
Assistant Registrar (Policy) at the RCS office.
34. Hence, in view of the above discussions, the accused persons are
acquitted of the offences charged with. Bail bonds stands cancelled.
Sureties discharged. Original documents filed alongwith the bail bonds
be returned to the rightful claimants on cancellation of endorsements, if
any.
35. In compliance of Section 437A Cr.P.C., the accused persons
are directed to file fresh bail bonds for a sum of Rs.50,000/- each
alongwith one surety of like amount on same terms and conditions as
mentioned in order dated 24.05.2024 of the Ld. Predecessor of this
Court.
36. File be consigned to records.
Digitally
signed by
VIJETA
VIJETA SINGH
SINGH RAWAT
Pronounced in open Court RAWAT Date:
2025.04.24
on 21.04.2025 13:19:00
+0530(Vijeta Singh Rawat)
Special Judge (PC Act) (CBI)-17
Rouse Avenue Courts, New Delhi
21.04.2025.
CBI vs Narayan Diwakar and Ors.
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ID No. 164/2019
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