IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE, PC ACT, CBIIII, ROHINI COURTS: DELHI. CBI No. 08/11 RC No. 4(E)/2006/CBI/EOUVII [PRECEDENT] [ENTITY] & Others. (Happy Friends CGHS) Reserved for order : 05.09.2011/12.09.2011 Date of Order : 21.09.2011 O R D E R O N C H A R G E : 1.
The case of the CBI, in brief, is that Happy Friends Cooperative Group Housing Society (CGHS) was registered with office of Registrar Cooperative Societies (RCS) vide registration No. 614 (GH) since 22.09.1983. The society was initially registered with 60 promoter members and Sh. [ENTITY] was the first Secretary of the society. The registered address of the society was H.No. 1278, Sector7, R.K. Puram, New Delhi which was residence of [ENTITY]. As no progress regarding allotment of land took place, the members of the society with passage of time lost interest in affairs of the society and slowly the society became defunct. Since the society was not conducting regular elections and was not getting its account audited, a notice was issued to it. When no response (Happy Friends CGHS) from the society was received, a second show cause notice was issued on 04.05.1988. On 14.02.1989, [ENTITY] informed the Asstt. Registrar that he had lost the membership register, minutes book and file containing the papers of the society. He requested for grant of permission to start new membership register and minutes book of the society. A copy of FIR lodged by him at PS Mangol Puri, Delhi was also enclosed with the said request. On receipt of his request, the then AR on 13.03.1989 asked the society to bring the records available with them for verification. It revealed that RCS file pertaining to the society remained dormant since 13.03.1989 to 24.01.03 and no detail was available about the activities of the society.
2. Accused [ENTITY] approached accused [ENTITY] and requested him to prepare forged documents required for approval of final list of members of the society. For this purpose, he obtained details pertaining to the society from accused [ENTITY], the Dealing Assistant, who contacted accused [ENTITY], the then UDC and got prepared two rough notes from him. One note was containing details of the documents/information pertaining to the society while other note was the draft letter for approval of final list of members. These two notes, prepared by Gopal Singh (Happy Friends CGHS) [ENTITY], were used by accused [ENTITY], accused [ENTITY], accused [ENTITY] and accused [ENTITY] for preparation of forged documents consisting of list of members, membership applications, affidavits, money receipts and proceedings. accused [ENTITY] alongwith accused [ENTITY] and accused [ENTITY] prepared forged documents viz affidavits of individual members, affidavits on behalf of Secretary and President, resignation letters of members, money receipts, minutes of the proceedings, audit papers for the period 198889 to 200102. These documents alongwith the request dated 2427/01/2003 were filed in the office of RCS by [ENTITY].
3. Accused [ENTITY] submitted audit papers of the society to accused [ENTITY], the then Sr. Auditor; and got audit of society conducted for period 198889 to 200102. Accused [ENTITY] neither visited registered office of the society nor contacted office bearers of the society for the purpose of conducting audit. He also forged signatures of the President, Secretary and Treasurer of the society on the audit report of the society for the period 198485 to 200102. Accused [ENTITY] processed the proposal of approval of final list of members whereas accused [ENTITY] and accused (Happy Friends CGHS) [ENTITY] forwarded the proposal and ultimately accused [ENTITY] approved the final list on 11.03.2003. The approved list of 75 members was thereafter forwarded to DDA for allotment of land.
4. I have heard accused [ENTITY];
Sh. [ENTITY] Ld. Counsel for accused No. 4, 5 & 9; Sh. [ENTITY], Ld. Counsel for accused no. 7 & 8; Sh. [ENTITY], Ld. Counsel for accused no. 11; Sh. [ENTITY], Ld. Counsel for accused no.2 and Sh. [ENTITY], Ld. Counsel for accused no. 10. I have also gone through the written submissions filed on behalf of accused [ENTITY] (A1) and accused [ENTITY] (A6).
5. According to accused [ENTITY] has done nothing wrong while discharging his functions as RCS. RCS does not deal with land as the same is the subject matter of DDA who allots the land in accordance with the Rules framed under [ACT] and [ACT]. CBI has committed various illegalities while investigating the matter. He placed reliance upon the judgment titled as [PRECEDENT], wherein it was held that if illegal investigation is brought to the notice of the (Happy Friends CGHS) Trial Court at the initial stage, then the court ought not to proceed with the trial but should direct reinvestigation in order to cure the defect in the investigation. Accused [ENTITY] has pointed out following illegalities:
(a) Consent of the State was not taken as required U/[SECTION] of the [ACT].
(b) Absence of notification U/[SECTION] of [ACT].
(c) Registration of case under [SECTION] of [ACT] which is a Special Act.
6. The contention of accused [ENTITY] 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 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].
7. It is contended that the noncompliance of [SECTION] of [ACT] vitiates the entire investigation. As per [SECTION] of (Happy Friends CGHS) [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 chargesheet are all notified offences U/[SECTION] of the [ACT] and, therefore, no fresh notification is/was necessary.
8. All the accused have raised the contention that the [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 (Happy Friends CGHS) 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].
9. On the other hand, it is contended by Ld. PP Sh.
[ENTITY] 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.
10. I have gone through the judgments cited by the accused.
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], (Happy Friends CGHS) 1972 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 chargesheeted. Thus, [ACT] does not impose any bar to take resort to the provisions of [ACT].
11. According to accused [ENTITY], he was discharging his quasi judicial functions and as such he cannot be prosecuted. According to him, under the provisions of [SECTION] & [SECTION] of the [ACT], there is a presumption of genuineness of the documents filed in support of the application. In my opinion, the facts and circumstances of the present case primafacie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. Bogus documents were used. Accused [ENTITY] followed the procedure with a view to give colour to his acts. Following procedure prescribed under the Act would not validate his acts when they were actuated with conspiracy to cheat the RCS and office of DDA.
12. 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 (Happy Friends CGHS) 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 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 (Happy Friends CGHS) 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.
13. It has been further contended on behalf of the accused persons that no land was allotted to the society and under these circumstances it can not be said that DDA was cheated. [ENTITY] and his subordinate staff/coaccused were bound to protect the interest of office of RCS. They in furtherance of the conspiracy entered into between them, cheated the institution of office of Registrar Cooperative Societies by doing act of revival of the society and they forwarded the letter to DDA for allotment of land. Therefore, primafacie case of cheating is also made out against the accused persons.
14. Sh. [ENTITY], Ld. Counsel for accused [ENTITY] contended that accused [ENTITY]'s name was not mentioned in the FIR. However, when chargesheet was filed, the accused was made one of the accused in the present case. Accused was one of the persons who dealt with the file in its natural and usual progression. There was no malafide intention on his part which is clear from the note sheet (Document no. 3). According to him, accused involvement in the processing of list (Happy Friends CGHS) of members was bona fide. Ld. Counsel has drawn the attention of the Court to the notes dated 30.01.2003 and 11.03.03 of the notesheet. According to him, the note dated 30.01.03 on the note sheet No. 25/N, accused [ENTITY] recommended consideration of the society's list for approval by the competent authority on the explicit understanding that the society's record had been verified. It was not for the accused [ENTITY] to conduct any actual field verification and there is nothing on record to show that accused has committed any breach of duty or procedure. As per general practice and procedure, the original records were produced by the society at the zonal office of RCS and all verifications were carried out from original records by the staff under the Asstt. Registrar. No presence of Managing Committee members or production of documents takes place before the Joint Registrar. The task of the Joint Registrar was to ensure that all necessary verifications are recorded as well as reported by the zonal office. Ld. Counsel further contended that there is no statement of any witness or any document showing that the accused [ENTITY] had any contact with other coaccused persons for the purpose of forming criminal conspiracy with them. According to Ld. Counsel, it is not the case of the prosecution that accused (Happy Friends CGHS) [ENTITY] received any pecuniary benefit whatsoever for his alleged offences. Ld. Counsel prayed that accused be discharged in this case. Ld. Counsel has also placed on record copy of letter dated 09.11.06 obtained under the [ACT]. In support of his contentions, Ld. Counsel has also relied upon the judgments i.e. [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]); [PRECEDENT]); [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT] By Insp. of Police, Tamil Nadu, (2011 LRC 18 SC); [ENTITY] vs. State of Kerela, 92010 SCC CRI. 1488; [PRECEDENT]; [PRECEDENT] decided by High Court of Delhi on 17.1.11 and Shakuntala Vs. State, 139 (2007) DLT
15. Ld. PP for CBI contended that though the list of members (Happy Friends CGHS) was approved by RCS but the proposal was moved through accused [ENTITY], the then JR (South). According to him, it cannot be said that the accused did not play any role. Ld. PP for CBI contended that charges are liable to be framed against accused [ENTITY].
16. Whether the act of accused [ENTITY] in proposing approval of list of members was without any malafide intention is a matter which is to be seen at the time of trial. It is not necessary u/[SECTION] of [ACT] that all the accused persons should have knowledge about crime and that all the accused persons should know the conduct of other accused persons. Any conduct which contributes to the chain of conspiracy is sufficient to attract of offence of conspiracy. In the present case, accused [ENTITY] overlooked the shortcomings available on record which contributed to the completion of present conspiracy and, thus, he became a part of the same. The acts of omission and commission on his part clearly establish his connivance with other RCS officials and private persons in recommending the approval of fresh list of members on the basis of false/forged documents. Accused [ENTITY] fraudulently relied upon the recommendations of junior officers without checking the genuineness of the records and, therefore, (Happy Friends CGHS) there is a grave suspicion against him of having entered into a criminal conspiracy to cheat the Office of DDA. The judgments relied upon by Ld. Counsel for accused are not applicable to the facts of the present case. The letter dated 09.11.06 placed on record by the accused specifies the role of Joint Registrar. As per this letter, the files under the charge of accused were routed through him to the Registrar. However, it cannot be said that the role of Joint Registrar was just to act in a mechanical manner without applying his mind to the facts of the case presented before him by his junior staff.
17. Sh. [ENTITY], Senior Advocate has relied upon judgment [ENTITY] (supra). There is no dispute regarding the legal proposition laid down in the said judgment. It is settled law if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Thus, the aforesaid judgment is of no help to the accused persons as from the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons of having entered into a criminal conspiracy to cheat the office of RCS and DDA. (Happy Friends CGHS)
18. In view of the above discussion, I am of the opinion that:
(i) primafacie case is made out against accused [ENTITY], accused [ENTITY], accused [ENTITY], accused [ENTITY], accused [ENTITY], accused [ENTITY], accused [ENTITY], accused [ENTITY], accused [ENTITY], accused [ENTITY] and accused [ENTITY] for commission of offences U/[SECTION]/[SECTION] [ACT] and [SECTION]/[SECTION] of [ACT].
(ii) Prima facie case is made out against accused [ENTITY], accused [ENTITY], accused [ENTITY], accused [ENTITY] and accused [ENTITY] u/[SECTION]/[SECTION] of [ACT].
(iii) Prima facie case is made out against accused [ENTITY] u/[SECTION], [SECTION] [ACT] and u/[SECTION]/[SECTION] of [ACT].
(iv) Prima facie case is made out against accused [ENTITY] u/[SECTION] [ACT].
(v) Prima facie case is made out against accused [ENTITY], accused [ENTITY] and accused [ENTITY] u/[SECTION] [ACT].
(Happy Friends CGHS)
(vi) Prima facie case is made out against accused [ENTITY] u/[SECTION] and [SECTION] [ACT].
Announced in the open court on dated 21.09.2011.
([ENTITY]) Special Judge, [ACT], CBIIII, Rohini Courts, Delhi.
(Happy Friends CGHS)