IN THE COURT OF [ENTITY], SPECIAL JUDGE, PC ACT, CBIIII, ROHINI COURTS: DELHI. CBI No. 119/11 RC No. 13(S)/2006/CBI/SCBII/New DELHI ([ENTITY] CGHS) CBI Versus 1.
[ENTITY] S/o Late Sh. Rajbir Singh
2. [ENTITY] W/o Late Sh. Om Prakash Ohri (deceased)
3. [ENTITY] S/o Sh. K P Sharma
4. [ENTITY] S/o Late Sh. Arjun Das
5. [ENTITY] S/o Late Sh. [ENTITY]
6. [ENTITY] S/o Late Sh. [ENTITY] (Deceased)
7. [ENTITY] S/o Sh. [ENTITY]
8. [ENTITY] W/o Sh. [ENTITY]
9. [ENTITY] W/o Sh. [ENTITY]
10. [ENTITY] S/o Late Sh. [ENTITY] ORDER ON CHARGE:
1. The case of the CBI, in brief, is that [ENTITY] Co operative Group Housing Society Ltd. (in short 'CGHS') was registered with Registrar Cooperative Societies (in short 'RCS') on 22.12.83 vide registration No. 1112 (GH) with 70 members having registered address as II/M54, Lajpat Nagar, New Delhi. The society did not produce the verification of the final list of members, ([ENTITY] CGHS) resignations, new enrollments and elections of the Managing Committee despite reminders and show cause notice from RCS and, therefore, a winding up order dated 25.4.1990 was issued by the Deputy Registrar (GH) on the ground of its nonexistence and also that the society was not serving any useful purpose to its members. On 22.6.1990 society filed appeal against the winding up order before Lt.
Governor, Delhi. Lt. Governor remanded the matter back to Registrar for reexamination and disposal. Thereafter, office of RCS wrote several letters to the society but nothing was heard from the society.
2. Investigation further disclosed that after about six years of passing of aforesaid order by Lt. Governor, RCS office received a letter dated 14.10.1996 from Sh. [ENTITY], ExPresident of the society with the request to cancel the winding up order and authorise Dr. [ENTITY] to represent the society in the office of RCS whereupon on 11.12.96 the society was asked to furnish records regarding the membership etc of the society.
3. Investigation further disclosed that notesheet dated 04.06.1997 of RCS office reflected that on 04.06.97, Dr. [ENTITY] (since deceased), Secretary of the society attended the office of the RCS alongwith records. However, as per said notesheet, the records presented by Dr. [ENTITY] (since deceased) were incomplete and he was advised to submit the full records pertaining the enrollments/resignations taken place after registration of the Society.
([ENTITY] CGHS) However, on the same day, the Dealing Assistant Shri [ENTITY] put up another typed note dated 04.06.1997. In this note, the Dealing Assistant, Shri [ENTITY] gave the detailed background of the case and mentioned that [ENTITY], exPresident of the society has requested for reexamination of the case and to withdraw impugned winding up order dated 25.04.1990. By this typed note, Sh. [ENTITY], the then Dealing Assistant recommended for withdrawal for winding up order dated 25.04.1990 u/[SECTION] [ACT] stating therein that order dated 25.04.1990 of RCS was under review on the directions of the Hon'ble Lt. Govenor and no final decision has yet been taken. The same was forwarded by Sh. [ENTITY], the then AR, Sh. [ENTITY], the then D R, Smt. [ENTITY] the then Jt. Registrar and finally the same was approved by Sh. [ENTITY], the then RCS, on 06.06.1997. Vide aforesaid order dated 06.06.1997, the proposal for directing the society to submit the requisite documents for the purpose of approving the freeze list of members of the society, for further transmission to the DDA for the purpose of consideration of allotment of land, was also approved.
4. Investigation further revealed that accused [ENTITY] was the dealing assistant when the matter of freeze list was considered. He processed the file relating to approval of the freeze list vide his note dated 04.08.97 and falsely stated that he had verified the records submitted by the society including the membership register, ([ENTITY] CGHS) proceedings of the meetings of the MC/AGM, original affidavits, proof of residence etc. There was no question of verification in view of missing of documents w.e.f. 18.02.97 as reflected from the note sheet dated 11.04.97 and letter addressed to AR (South) New Delhi by Dr.[ENTITY]. Further, accused [ENTITY] vide his note dated 11.08.97, without any verification of the documents of the society recommended for the approval of freeze strength of 300 members of the society despite the fact that he noticed certain irregularities in the enrollment of members whereby the strength of members were increased abruptly from 150 to 300. Accused [ENTITY] further recommended the freeze list of 300 members despite the fact that the audit reports were not available on record and he has also not commented upon the period for which accounts of the society was audited. Accused [ENTITY] did not recommend for physical verification or field inspection of the members of the society whose names and numbers were sought to be freezed.
5. Investigation further revealed that out of the said freeze list of 300 members, 3 members namely [ENTITY], [ENTITY] and [ENTITY] had never applied for the membership of the society and their signatures on the membership forms are said to have been forged.
6. Investigation further revealed that accused [ENTITY] has also given favourable notings in favour of the society on the objections raised by DR/ (S) vide notesheet dated 12.08.97. Hence, in ([ENTITY] CGHS) this way, on the misrepresentation of the facts regarding the status and documents of the society, accused [ENTITY] induced the Sr. Officer of the Office of RCS in processing the file of the society for approving the freeze list and forwarding the same to the DDA. Ultimately, the list was approved by RCS and forwarded the same to DDA for allotment of land corresponding to the strength of 300 members. In consequent whereof plot number 1A, Sector22, Dwarka measuring 17000 sq. meters was alloted to society by the DDA, in accordance with the strength of freeze list of 300 members. The possession whereof was taken by the society after making payments to the DDA.
7. Investigation further disclosed that accused [ENTITY] overlooked that the management committee suddenly increased the strength of its members from 150 to 300 without any reference from the general body; society also failed to submit copy of the audit reports from 1987 to 96, details of elections of management committee, minutes of the GBM etc. On 18.02.97, the said [ENTITY] filed a criminal complaint with the police stating that original records of the society are not traceable whereas on 04.08.97 he put up a note to the effect that the records of the society was verified by him. The perusal of minutes of various meetings of the management committee from October, 1996 to 2002 revealed that these meetings were generally attended only by the five office bearers namely Ashok ([ENTITY] CGHS) [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] who took decisions and managed the affairs of the society. They reduced the strength of management committee from 13 to 7 and replaced the original members of the society with new members. By 31.3.2001, only two out of the original 70 members namely [ENTITY] and [ENTITY] were shown as existing members whereas [ENTITY] had already died on 3.8.1999.
8. Investigation further revealed that on 26.03.04, the High Court of Delhi passed an order in [CASE NUMBER] directing the RCS to verify the list of members of [ENTITY] CGHS Ltd. for the purpose of conducting elections of the society. Pursuant to the same, a committee consisting of [ENTITY] and [ENTITY], Asstt. Registrar in the Office of RCS was constituted. The committee vide its report submitted in June, 2004 recommended that the list of 300 members as submitted by the society was verified and found to be genuine. As per the list Sh. [ENTITY] was shown as member of society whereas he had died on 03.08.99.
9. Investigation further revealed that during the period July 1997 to March 2001, 139 new members were shown to have been enrolled whereas 231 existing members were shown to have resigned. It has been further revealed that since the inception of society in 1983, there were in all 828 members at different points of time out of which 462 were shown to have resigned at different point of time and 86 ([ENTITY] CGHS) members were shown to have been expelled. No such intimation of such enrollments and resignation etc. was ever sent to RCS office as per rule which shows that the management of the society from time to time have shown the enrollment of fake members and, thereafter, shown their resignation after enrolling new members with motive to maintain the list of 300 members.
10. Investigation further revealed that several members were shown to be enrolled by the Managing Committee of the society comprising of accused [ENTITY], President, Mrs. [ENTITY] (since deceased), [ENTITY], [ENTITY], [ENTITY], [ENTITY] (since deceased), [ENTITY], Mrs. [ENTITY], Mrs. [ENTITY], [ENTITY], Mrs. [ENTITY], [ENTITY] and [ENTITY] vide different proceedings running from time to time. The fake proceedings in this respect were also prepared in the purported proceeding register of the society by the aforesaid accused persons in connivance with one another. Several persons who were shown as members of the [ENTITY] CGHS denied for having ever applied for membership in the said society. GEQD opinion confirmed that signatures of several persons on their applications for memberships, resignation letters and affidavits do not tally with their specimen signatures.
11. Investigation further disclosed that accused [ENTITY] was the only official of RCS who interacted with the ([ENTITY] CGHS) representative of the society. No senior office met any member of the society and merely acted on the noting and recommendations made by accused [ENTITY]. After completing investigation, charge sheet was filed in the Court against the accused persons for committing various offences under [ACT] and [ACT].
12. I have heard Ld. PP for CBI; Sh. [ENTITY], Ld. Counsel for A1 [ENTITY], A3 [ENTITY] and A8 [ENTITY]; Sh. [ENTITY], Ld. Counsel for A10 [ENTITY]; Sh. [ENTITY], Ld. Counsel for A5 [ENTITY]; Sh. [ENTITY], Ld. Counsel for A7; Sh. [ENTITY], Ld. Counsel for A4 and Sh. [ENTITY], Ld. Counsel for A9 [ENTITY].
13. Sh. [ENTITY], Ld. Counsel for accused [ENTITY] contended that Assistant Registrar, Joint Registrar and Registrar Cooperative Societies have neither been made witnesses nor accused in this case. There is nothing on record against accused [ENTITY] to connect him with the alleged offences. There was no concealment of material facts by accused [ENTITY] which is apparent from the various notes written by him in the note sheets. Ld. Counsel prayed that accused [ENTITY] is liable to be discharged in this case.
14. Sh. [ENTITY], Ld. Counsel for [ENTITY], [ENTITY] and [ENTITY] contended that there is nothing on record ([ENTITY] CGHS) against these accused and they have been implicated just being the Managing Committee (MC) members of the society. It is the settled law that Special Act will prevail over the general law. Under [ACT] and [ACT], immunity has been granted to the society from prosecution. For the accused [ENTITY], Ld. Counsel contended that she joined on 14.1.2001 as member and was elected as Managing Committee member on 26.8.2001 being the woman member of the MC. Five notices for attending MC meeting were received from [ENTITY] but no meeting was attended by her. The MC meeting dated 18.2.2002 had been fabricated by the then Secretary. According to him, accused [ENTITY], [ENTITY] and [ENTITY] deserve discharge.
15. Sh. [ENTITY], Ld. Counsel for A5 [ENTITY] contended that the society was revived on 12.6.97. A5 became member in May 2001. There is no evidence of forgery against A5. According to him, accused [ENTITY] is entitled to be discharged.
16. Sh. [ENTITY], Ld. Counsel for accused [ENTITY] contended that A7 became member after the revival of the society and the share certificate was issued to him in August, 1998. A7 became a M C Member at a later stage. There is nothing on record to connect him with the alleged offences and, therefore, A7 is liable to be discharged.
([ENTITY] CGHS)
17. Sh. [ENTITY], Ld. Counsel for accused [ENTITY] contended that [SECTION] of [ACT] is not attracted against [ENTITY] as he is not a public servant. There is nothing on record that [ENTITY] conspired with other accused persons. He simply attended the meeting of the society. As there is no sufficient evidence against [ENTITY], he be discharged.
18. Sh. [ENTITY], Ld. Counsel for A9 [ENTITY] contended that there is nothing against accused [ENTITY] on record to connect her with the alleged offences. As per prosecution, the accused attended meetings of the Managing Committee of the society. However, her signatures were not sent by the prosecution during investigation to GEQD. Ld. Counsel contended that neither there is oral nor documentary evidence including GEQD opinion against accused [ENTITY] and, therefore, she is liable to be discharged in this case.
19. I have gone through the record. It is contended that consent of the State was not taken as required u/[SECTION] of [ACT] which is a mandatory requirement under the law and, therefore, the court should not proceed with the trial.
20. The contention that the consent of State was not taken is misconceived in the facts and circumstances of the present case. The investigation was referred to CBI in the present matter by the High ([ENTITY] CGHS) Court. Once the order for investigation of a case to CBI is passed by the High Court under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a matter for investigation to CBI. Though not referred to and relied upon, for taking view I am supported with the order dated 17.9.2007 passed by Hon'ble Mr. Justice Sh. [ENTITY] in [CASE NUMBER].
21. It is contended that in the absence of notification u/[SECTION] of [ACT] the entire investigation by the CBI is vitiated. The contention is without any merit. As per [SECTION] of [ACT], the Central Government makes notification in the official gazette to specify the offences or classes of offences which are to be investigated by Delhi Special Police Establishment. It is contended that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government u/[SECTION] of the Act and such offences, as notified, are mentioned in [ACT]. The offences covered by [SECTION] of the said Act do not include the offences under the Cooperative laws. Thus, the investigation done by the CBI for the cooperative societies is in violation of [SECTION] as it has no jurisdiction to conduct the investigation. In my opinion the offences mentioned in the charge sheet are all notified offences U/[SECTION] of the [ACT] and, therefore, no fresh notification is/was necessary.
22. All the accused have raised the contention that the DCS ([ENTITY] CGHS) Act, is a complete self contained statute and, therefore, provisions of the [ACT] cannot be invoked. The [ACT] provides for a well defined system of addressing the issues relating to various private cooperative societies and it contains the provisions of fine, appeal, punishment and, as such, the application of provisions of the [ACT] by the CBI is wholly illegal. It is further contended that the matter is covered under the provision of [SECTION] of [ACT] which completely debars the prosecution without giving the opportunity of being heard as well as previous sanction of RCS. The offence alleged to have been committed by the accused is punishable under the provisions of Special law and, therefore, the provisions of [ACT], being general law, cannot be invoked. In respect of this contention, accused have relied upon judgments [PRECEDENT]; and [PRECEDENT].
23. On the other hand, it is contended by Ld. PP for CBI that provisions under [ACT] and [ACT] are for administration of Cooperative Group Housing Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. According to him, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law.
24. I have gone through the judgments cited by the accused.
([ENTITY] CGHS) The cited judgments are not applicable to the facts of the present case. Wherever the Legislature in its wisdom deemed fit, they have restricted/prohibited the applicability of other Acts which could be seen from the provision of [SECTION] of [ACT] which provides "The provisions of the [ACT] shall not apply to [ACT]". But such restriction/prohibition is nowhere mentioned in [ACT] debarring the applicability of [ACT] or [ACT] under which the accused persons have been charge sheeted. Thus, [ACT] does not impose any bar to take resort to the provisions of [ACT].
25. Further, it is contended that there is no complainant in this case and, thus, the registration of FIR in the present case does not satisfy the ingredients of [SECTION] [ACT]. The contention is devoid of any merit. Our High Court of Delhi while hearing the [CASE NUMBER] passed order dated 2.8.05 directing the CBI to conduct the thorough investigation in the matter relating to 135 CGHS. In pursuance of the aforesaid order passed by the Delhi High Court in exercise of its inherent powers, an inquiry was conducted by CBI which disclosed commission of cognizable offence by the accused persons in the matter of dishonest and fraudulent revival of society. Therefore, CBI rightly lodged the FIR in the present case. While registering the FIR, the acts and omissions on the part of the accused persons and disclosure of commission of cognizable offences ([ENTITY] CGHS) by them were detailed in the FIR. The FIR registered by CBI fully satisfies the ingredients of [SECTION] [ACT]. It is the settled law that once an investigation is directed into alleged offences by the Court, two conditions are necessary to commence the investigation:
(i) The police should have reason to suspect the commission of cognizable offence and;
(ii) A Police Officer should subjectively satisfy himself to the existence of sufficient grounds to enter into investigation.
These two conditions were duly satisfied at the stage of lodging of FIR in the present case by the CBI before entering into investigation. Thus, the present FIR was rightly registered by the CBI and just because the FIR was not lodged on a complaint received from a complainant/individual is not a ground to discharge the accused.
26. From the statement of witnesses and perusal of documents including GEQD opinion there is prima facie evidence on record that Managing Committee members i.e accused nos. 1, 3, 4, 5, 7 and 8 prepared fake proceedings with respect to resignations and enrollment of new members with the motive to maintain the list of 300 members in connivance with one another. PW24 and PW26 have categorically stated that they never applied for membership in the [ENTITY] CGHS. They have denied being members of the Managing Committee of the society. PW9 [ENTITY] and others have denied having resigned from the membership of [ENTITY] CGHS. The ([ENTITY] CGHS) aforesaid accused persons have shown several persons to have resigned from the membership of the society in the fake proceedings register of the society from time to time. Thus, there is prima facie evidence on record that fake proceedings in the proceedings registers of the society were prepared by the aforesaid accused persons. The GEQD opinion is also against all the aforesaid accused persons.
27. Ld. PP for the CBI during the course of the arguments conceded that the alleged signatures of accused [ENTITY] on the fake proceedings register with her specimen signatures were not sent to GEQD. Ld. Counsel for the accused [ENTITY] has denied the signatures of accused [ENTITY] on the fake proceedings register of [ENTITY] CGHS. According to him, there is neither oral nor documentary evidence to connect accused [ENTITY] with the alleged offences. I agree with the contention of the Ld. Counsel for the accused [ENTITY]. There is nothing on record that accused [ENTITY] forged the documents or used the forged documents as genuine for getting the land allotted from DDA. Thus, ingredients of [SECTION], [SECTION] and [SECTION] of [ACT] are not attracted against her. There is nothing on record that false minutes of the Managing Committee meetings bear the signatures of accused [ENTITY]. The GEQD opinion against accused [ENTITY] is not on record. Thus, there is no connecting link that would warrant an inference that accused [ENTITY] was acting in criminal conspiracy with other accused persons. Thus, I find no ([ENTITY] CGHS) ground for framing of charge under [SECTION] [ACT] also against accused [ENTITY].
28. In [PRECEDENT], it was held by the Apex Court as under:
"To bring home the charge of conspiracy within the ambit of [SECTION] of the [ACT] it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy."
29. In [PRECEDENT], it was held by the Apex Court as under:
"It is significant at this stage to note the observations in [ENTITY] (cited supra) wherein it was laid that in order to prove criminal conspiracy, there must be evidence direct or circumstances to show that there was an agreement between two or more persons to commit an offence. It was further held that there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of the offence and where the factum of conspiracy is sought to be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Relying on that, [ENTITY], J. in Esher Singh v. State of A.P., 2004(11) SCC 585 observed that the prosecution has to discharge its onus of proving the ([ENTITY] CGHS) case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy."
30. The Apex court in a case [PRECEDENT] held that to constitute the offence of conspiracy, mere knowledge is not sufficient and there should be a meeting of minds of two or more persons for doing any illegal act or an act by illegal means . From the facts in hand, some act more than mere knowledge should be attributable to the alleged accused.
31. In [PRECEDENT], charge against accused [ENTITY] was that he had done the act of booking the tickets of the persons named in the charge; and this was done from his own funds. It was contended on behalf of the state that the financial assistance by accused [ENTITY] would attract the mischief of [SECTION] of [ACT]. Apex court discharged accused ([ENTITY] CGHS) [ENTITY] and observed as under:
"We may state that as framing of charge affects a person's liberty substantially, as pointed out in [ENTITY]'s case ([PRECEDENT] (supra), the materials on record must satisfy the mind of the Court framing the charge that the commission of offence by the accused in question was probable. We do not find a conclusion can reasonably be drawn only from the above noted incriminating fact pressed into service by the prosecution that the appellant might have abetted the offences in question. There being no material to frame individual charge under [SECTION] of [ACT], we are of the opinion that the general charge qua this appellant has also to fail, as the only overt act attributed to him is the aforesaid activity of booking tickets."
32. Our Apex Court in Union of India v. [ENTITY] Kumar Samal, (1979) 3 SCC 4, has held that the Court has power to sift and weigh the evidence - although for the limited purpose of finding out whether a prima facie case against the accused has been made out or not. In [ENTITY] (supra), it has also been held that where materials placed before the Court disclosed grave suspicion against the accused which has not been properly explained, the Court would be fully justified in framing a charge and proceeding with the trial. By and large, however, if two views are equally possible and the judge is satisfied that the evidence produced before him gives rise to some suspicion, but not grave suspicion against the accused, he will be fully within his right to discharge the accused. In the facts and circumstances of the present case, this court is of the view that the case ([ENTITY] CGHS) has emerged in favour of the accused [ENTITY] rather than in favour of the prosecution and, consequently, accused [ENTITY] is discharged.
33. Thus, from the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons except accused [ENTITY] of having entered into a criminal conspiracy to cheat the Offices of RCS and DDA.
34. In view of the above discussion, I am of the opinion that primafacie case is made out against accused [ENTITY] (A1), [ENTITY] (A3), [ENTITY] (A4), [ENTITY] (A5), [ENTITY] (A7), [ENTITY] (A8) and [ENTITY] (A10) for committing offences U/[SECTION] [ACT] r/w [SECTION], [SECTION], [SECTION] [ACT] and [SECTION]/[SECTION] of [ACT] and substantive offences thereof.
Announced in the open court ([ENTITY]) on dated 9.7.2012. Special Judge, [ACT] CBI3, Rohini Courts,Delhi. ([ENTITY] CGHS)