Delhi High Court
Narayan Diwakar vs Central Bureau Of Investigation on 23 April, 2018
IN THE HIGH COURT OF DELHI AT NEW DELHI
Order reserved on : 20th March, 2018
Date of decision : 23rd April, 2018
CRL.A 45/2018 & Crl. M. (Bail) 73/2018
NARAYAN DIWAKAR ..... Appellant
Through Dr. Sushil Gupta, Adv.
versus
CENRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Ms. Rajdipa Behura, SPP for
CBI with Mr. Philomon Kani,
Ms. Kriti Handa, Ms. Hansika
Sahu, Ms. Damini K., Advs.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
ANU MALHOTRA, J.
Crl. M. (Bail) 73/2018
1. The appellant/applicant seeks grant of interim suspension of the
sentence imposed on him vide order on sentence dated 04.01.2018 of
the learned Special Judge (PC Act) CBI-03, (North West District),
Rohini Courts, Delhi in case no. CBI-102/2016 CNR no. DLNW-01-
000070-2006 whereby the appellant/applicant vide the impugned
judgment dated 22.12.2017 was convicted for the commission of the
offences punishable
under Sections 419/468/471 as well as 420 of the Indian Penal
Code, 1860 r/w Section 120 B of the Indian Penal Code, 1860 and was
sentenced to 3 years of Rigorous Imprisonment and a fine of Rs.1 lakh
for offence punishable under Section 15 of The Prevention of
Corruption Act, 1988 and in default of the payment of fine, to undergo
6 months Simple Imprisonment;
was sentenced to Rigorous Imprisonment for 5 years and fine of
Rs.2 lakhs for the offence punishable under Section 420/120 B of the
Indian Penal Code, 1860 and in default of payment of fine, to undergo
1 year Simple Imprisonment;
was sentenced to Rigorous Imprisonment of 3 years and a fine
of Rs.2 lakhs for the offence punishable under Section under Sections
468/120B of the Indian Penal Code, 1860 and in default of payment of
fine, to undergo 1 year of Simple Imprisonment. The appellant has
been in custody for a period of four months and two days.
2. The period of detention undergone by the appellant was directed
to be set off in terms of Section 428 of the Code of Criminal
Procedure, 1973.
3. At the outset, it is essential to observe that vide the impugned
judgment, six accused persons including the appellant were convicted
with two other co-accused Sunanda Malik and Gokul Singh Bisht
having been acquitted. The appellant who was on bail as reflected vide
order dated 22.12.2017 of the Trial Court during the trial was taken
into custody on 22.12.2017 along with the co-convicts Gokul Chand
Aggarwal, P.K. Thirwani, Faiz Mohammad, U.S. Bhatnagar and N.S.
Khatri. The accused Maan Singh has expired.
4. The status report of the State was submitted pursuant to the
orders of this Court dated 02.08.2015. The CBI submits that it had
conducted a thorough investigation in the matter of 135 Co-operative
Group Housing Societies involved in a scam of getting land allotted to
them at pre determined rates and not on the basis of market value of
the land and that 'The Service Officers CGHS', being one of such
CGHS, was also enquired into along with other societies. A PE
3(E)/05/EOW-1/DLI is stated to have been registered against six
societies including the Service Officer Co-operative Group Housing
Society (CGHS) on 06.08.2005 by CBI/EOW-1/DLI. On the basis of
the enquiry report, the present case no. RC: 09(S)/05/SCB-II/ND was
registered against Gokul Chand Aggarwal, Narayan Diwakar, the
appellant herein and 10 other accused persons. The accused persons
are thus alleged to have conspired to set a defunct society revived so
that the land be allotted to it, at commercial rates and they may make
money by selling membership of the society.
5. The allegations levelled against the appellant were to the effect
that he was the Registrar of Co-operative Societies (RCS) and along
with some officers of the RCS abused their official positions and , in
collusion with Gokul Chand Aggarwal and others, fraudulently
revived the Service Officers (CGHS) on the basis of forged and false
documents without proper enquiry / verification and recommended the
case for allotment of land to the DDA.
6. The Service Officers Group Housing Society was registered
with the office of the Registrar, Co-operative Societies on 23.11.1973
vide registration no. 162-H, with the address as C/o Major T.S. Sethi,
Kashmir House, DHQ, New Delhi and remained dys-functional for
several years and was ordered to be wound up vide order 2007/2118
dated 16.05.1979 passed by the then Dy. Registrar, Co-operative
Societies, Delhi and it was found that the society was non-functional
and it had failed to achieve its aims and objects and there was no
chance that it would succeed in the near future and that a Liquidator
was appointed, who wrote a letter to the Secretary and President of the
society, asking them to hand over the charge of liabilities and assets of
the society and as no response was received and after waiting till
November, 1979, it was assumed that the society had no assets or
liabilities and the society was finally closed. On 19.09.2003, a letter
dated 16.09.2003 was received in the office of the RCS, written in the
name of Sh. Mahavir Prasad, stated to be Secretary of the said society
with request to cancel the winding-up order dated 16.05.1979 under
Section 63 of The Delhi Co-operative Societies Act, 1972 stating that
the society had removed the shortcomings, like failure to call Annual
General Meetings (AGM) and to hold elections of the Management
Committee and it was stated that the elections had been held on
29.06.2003 and that the then Registrar, Co-operative Societies namely
Sh. Narayan Diwakar i.e. the present appellant/applicant vide order
dated 03.02.2004 had allowed the application and directed revival of
the society.
7. The applicant with other co-accused persons had been charged
for the offences punishable under Section 120B r/w Section
419/420/468/471 and under Section 13(2) r/w 13(1) (d) of The
Prevention of Corruption Act, 1988 and under Section 15 r/w
513(1)(d) and Section 513(2) of the PC Act. The applicant contended
that the case was registered by the CBI against him falsely maliciously
and that it was not his responsibility and rather it was the
responsibility of the Managing Committee of the society to furnish the
correct and true particulars while approaching the Registrar seeking
revival and that he had performed his duty in good faith and had taken
necessary steps in precaution and contended that in terms of Rule 105
of DCS Act, he was duty bound to revoke the winding up of all
proceedings.
8. The appellant who is in custody as per the charge-sheet, who
had directed the accused Man Singh Assistant Registrar to conduct
physical verification as well as door to door survey of members of the
society. Vide his order dated 03.02.2004, the appellant Narayan
Diwakar was Registrar of the Co-operative Group Housing Society
ordered for revival of the society holding that the Dy. Registrar was
not competent to pass winding up order and no proper procedure had
been followed and the prosecution contended that this winding up
order was apparently incorrect and had been passed by Sh. Ashok
Bakshi the then RCS on 16.05.1979 after giving sufficient
opportunities to the society and no such findings could have been
given by the applicant as the original file was missing and no
complaint was lodged to the police and no action was initiated against
any official for the loss of the file and that the society was not
functional and ordered to be wound up vide order dated 16.05.1979 of
the then Deputy Registrar, Co-operative Societies and that no
complaint was registered and no action was taken to audit, nor was
any inquiry conducted as to why no general body meeting or any
meeting was conveyed between 16.05.1979 to 29.06.2003 and
ignoring all these facts, the appellant/applicant Narayan Diwakar had
appointed N.S.Khatri, (a co-convict) as an Election Officer to conduct
the elections of the management committee within two months and
N.S. Khatri is stated to have submitted a fictitious report verifying
elections to have been conducted in the office of the RCS on
14.03.2004. The senior auditor co-convict P.K. Thirwani in conspiring
with the appellant/applicant herein is stated to have conducted the
audit of the society and submitted a false report without seeking any
record of the society and the co-convict Gokul Chand Aggarwal
forged affidavits as well as the applications seeking revival of the
society by putting signatures in the name of the persons, who were not
in existence and the accused P.K. Thirwani accompanied the accused
Gokul Chand Aggarwal in signing the name of officer bearers of
society.
9. Vide the impugned judgment, the Trial Court has observed to
the effect that : -
"79. The order passed by Sh. Narayan Diwakar (Registrar)
dated 03.02.2004 through which winding up order dated
16.05.1997 was set aside with immediate effect and
consequently the society was revived, is based on wrong
facts and is apparently false. Contentions which suited for
such order are noted by the registrar in name of Ms. Sweta
Advocate. Some excerpts of this order, are scribed here,
for ready reference.
Ms. Sweta Advocate representing the society appear before
this Court on date fixed and stated that in the Special
General Body meeting held on________, the election of
the management committee of the society were got
conducted specially in accordance of provision of law. It is
also stated that list of 147 members as on date has been
drawn or in the prescribed performa on the basis of record
of society...............
All pending accounts are ready for audit and filed
photocopies...............
The president and secretary of the society made oral
commitment to fulfill all the statutory law in future and
also filed affidavit dated 08.12.2003. In these facts, they
are directed to file all original record. 1 have gone through
the submissions made and affidavits filed by the President
and Secretary of the society...............
The registrar agreed with the contentions that "winding
up order passed by the then Deputy Registrar was not in
accordance with the laid down procedure while winding
up of society as the reasons given were not adequate for
initiating such an extreme steps laid leading to the
winding up of the society. If there was any
mismanagement in the society it was appropriate to first
initiate action u/s 32 of DCS Act, 1972, for placing the
society under suppression...............
Such order for winding up of the society without proper
application of the mind is not conducive for revitalization
and restrengthening of cooperative movement in
Delhi...............
The deputy registrar who had passed order u/s 63 of DCS
Act, 1972 was not competent to pass such order as only
registrar is competent to decide the matter u/s 63 of DCS
Act. There is nothing on record to show that such power
u/s 63 of DCS Act exercisable by the registrar were
delegated to the deputy registrar...............
It appears that during the time this order was passed, a
large number of society were wound up in mechanical
manner without any valid and convincing reasons. It also
appears that society was not given sufficient opportunity
either to reply to the SCN issued to the society or to rectify
the shortcomings mentioned in the notice issued to the
RCS."
10. The said Advocate Ms. Sweta has testified before the Trial
Court that she did not appear before the Registrar, Co-operative
Societies in any case but despite the same, her presence had been
marked for 03.02.2004 and also on previous dates. The President and
Secretary of the society are also mentioned to have made oral
commitment to fulfill all statutory obligations in future and are also
stated to have filed affidavit dated 08.12.2003 despite the factum that
there was no person in existence shown President or Secretary of the
society.
11. The Trial Court also observed that the Registrar i.e. the
appellant/applicant herein had not clarified as to how the winding up
order passed by the Dy. Registrar was not in accordance with the laid
down procedure and that the Dy. Registrar had given the following
reasons in support of his order : -
"a) The society failed to achieve its objective and was not
likely to achieve the same in near future.
b) The society failed to act in accordance with Delhi
Cooperative Society Rules 1973 and provision of registered
bye laws of the society.
c) The managing committee and the members of the
society did not show interest in the functioning of the
society.
d) That there is no reason to keep the society alive any
further for any profit and objective."
and that no response having been received by the Dy. Registrar after
serving notice to society through its President and Secretary, the
society was not found being run anywhere.
12. Vide para 204, it was observed in the impugned judgment to the
effect : -
"204. Accused other than Gokul Chand Aggarwal who
were registrar and officials of RCS office sent list of
members of society which was fake, to DDA for allotment
of land, apparently to mislead or misguide those officials
of DDA, believing the same to be true and thus inducing
them dishonestly to allot land. When list of members,
complete in all form was submitted to DDA, it was enough
to induce that authority to deliver property i.e. land. All
this amounted cheating and dishonestly inducing delivery
of property i.e. land to society, punishable u/s 420IPC. A
party to conspiracy acts as an agent of other parties to it
(conspiracy)."
13. The status report submitted by the State is to similar effect apart
from submitting that the appellant the then Registrar of the Co-
operative Group Housing Societies has since been convicted in 12
other cases, which are to the effect: -
S. Case Details Date of Decision Relevant Sections
No. Judgment and Sentence
1. 'Ashoka Hotel 14.07.2014 Conviction Sec 420/511 r/w
Karamchari CGHS' 120-B IPC : One
year with fine of Rs.
RC- S18/2006/E0001- 5,000/-.
CBI/EOU-IV/Delhi Sec. 15 PC Act r/w
120-B IPC: One year
with fine of
Rs.5,000/-.
Sec.468 IPG r/w
120-B IPC :
One year and fine of
Rs.
5,000/-.
Sec. 471 IPC r/w
120-B IPC :
One year with fine
of Rs.
5,000/-
2. 'Hindustan Steel 16.08.2017 Conviction Sec. 120-B IPC r/w
CGHS' Sec. 15 PC Act: RI
One year with fine
RC 02 2006 EOU IX of Rs.10,000/-.
CBI / New Delhi
Sec. 120-B IPC r/w
Sec. 13(2) r/w 13 (1)
(d) PC Act:
RI One year with
fine of Rs.10,000/-
Sec.419/468/471/420
r/w 511 IPC :
RI One year with
fine of Rs.10,000/-.
Section 15 read with
Section 13(2) r/w 13
(1) (d) PC Act:
RI Two years with
fine of Rs.20,000/-
3. National Building 31.05.2013 Conviction 120B IPC r/w sec.
CGHS 418/468/471 IPC r/w
RC Section
BD1/2005/E/002/ 13(2) & 13(1) (d) PC
CBI/BS&FC/ND Act:
Rl for One year with
a fine in
the sum of Rs. 100/-
15 r/w Section
13(1)(d)of PC
Act:
Rl 1 ½ year with fine
of Rs.
100/-
471 IPC:
Rl Three years with
fine of Rs.
100/-
4. Anand CGHS --- Conviction One year and with
RC: SI8-2006- fine of Rs.
E0002 30,000/-
5. Maruti Mahaima --- Conviction Two year and fine of
RC: No. DAI-2005- Rs.
A0067 15,000/-
6. Radhey Kunj --- Conviction One year and fine of
CGHS Rs.
RC: 7(E/2005/EOUVIII/ 2,000/-
ND
7. Siemens CGHS --- Conviction One year and fine of
RC:3(AP/2006/ACU
-IV/CBI/ NO Rs. 200/-
8. Sartaj CGHS --- Conviction Three years and fine
RC: of Rs.
10(E)/2005/EOW- 8,000/-
1/ND
9. Rangmahal CGHS --- Conviction One year and fine of
RC:22(E)/2005/E0 Rs.
W-II/ND 2,000/-
10. Shreyas CGHS --- Conviction One year and fine of
RC:16(A)/2005/CBI Rs.
/SCR-II/ND 12,000/-
11. Ruchika CGHS --- Conviction One year and 3
RC:14(E)2005/EO months and
W-II/ND fine of Rs. 2,000/-
12. Service Officers --- Conviction 5 years and fine of
CGHS Rs. 5
RC: lakhs.
09/95/CBI/SCBlll/
ND
14. On behalf of the respondent during the course of the
submissions made, reliance has been placed on the following verdicts
of : -
a. State of Maharashtra Vs. Madhukar Wamanrao Smarth in
Criminal Appeal Nos. 520-521/2008 a verdict of the Hon'ble
Supreme Court to contend that there has to be careful
consideration of the relevant aspects and the order directing
suspension of sentence and grant of bail should not be passed
as a matter of routine. Gravity of the offence, the sentence
imposed and several other similar factors need to be
considered.
b. Kishori Lai Vs. Rupa and Ors. AIR 2005 SC1481 to
contend that the appellate Court is duty bound to objectively
assess the matter and to record reasons for the conclusion that
the case warrants suspension of sentence and grant of bail. The
mere fact that during the trial, they were granted bail and there
was no allegations of misuse of liberty is really not of much
significance. The effect of bail granted during trial looses
significance when on completion of trial, the accused persons
have been found guilty.
c. Manoj Kumar Mishra Vs. CBI a verdict of the High Court
of Delhi in Crl. A. No.1177/2016 to contend that suspension of
sentence was not allowed, in Bhagwan Rama Shinde Gosain
& Ors. vs. State of Gujarat (1999) 4 SCC 421 and that
pertinently, the sentence of the appellant had not been
suspended either at the stage when the appeal was filed before
the High Court, or even when, subsequently, the application to
seek suspension of sentence was moved. The High Court also
declined to hear the appeal expeditiously. Thus, as the
appellant had already undergone a part of the sentence and
there was no hope of the appeal being heard in a time bound
manner, it was in this background that the Supreme Court
suspended the sentence of the appellant' during pendency of
the appeal before the High Court.
d. Sukhbir Singh Vs. State a verdict of the High Court of
Delhi in Crl. MB 382/2011 decided on 10.03.2011 to contend
that the cases relating to PC Act cannot be treated as ordinary
cases, where sentence ought to be suspended just for the
asking.
e. Braham Pal Vs. State NCT of Delhi a verdict of the High
Court of Delhi in Crl. MB No. 410/2011 decided on
18.03.2011 to contend that the Court should not hold a roving
enquiry into evidence at the time of suspension of sentence. It
is required to see if in it's prima facie opinion, there was such
patent illegality arbitrariness or perversity in the impugned
judgment as to warrant grant of suspension of sentence.
f. Prithivi Raj Arora @ Netaji Vs. CBI a verdict of the High
Court of Delhi in Crl. MB 1374/2007 decided on 07.11.2017
to contend that a bare perusal of Section 389 Cr.P.C. would
show that suspension of sentence during the pendency of an
appeal is not the absolute right of the convict.
15. During the course of the submissions that have been made on
behalf of the appellant, it has been submitted that the appellant had
been acquitted for the offence punishable under Section 511 r/w
Section 419 of the Indian Penal Code, 1860, and thus as charges were
also framed for the commission of an offence punishable under
Section 15 (2) of the PC Act, 1988, the charges for the substantive
offence could not have been held to have been proved. It has further
been submitted on behalf of the applicant that there are several
infirmities in the impugned judgment, and thus the applicant is entitled
to be released on bail during the pendency of the appeal. It is further
submitted that the applicant is 74 years of age suffering from severe
ailments and so is his wife and that he has never misused the grant of
bail during the trial.
16. On a consideration of the rival submissions and taking into
account the factum that the applicant is indicated to have been
convicted for the commission of the offences punishable under
Sections 419/468/471 as well as 420 of the Indian Penal Code, 1860
r/w Section 120 B of the Indian Penal Code, 1860 and for the offence
punishable under Section 15 r/w Section 13(1)(d) of the POC Act,
1988 for attempt to commit a criminal misconduct punishable
therefrom, taking into account the repeated acts of the appellant in his
capacity as Registrar of the Co-operative Group Housing Societies in
allowing the registration of the fake societies for allotment of land to
them and taking into account the factum that there are twelve
convictions against the applicant in similar nature of cases, there is no
ground for grant of suspension of sentence to the appellant during the
pendency of the appeal inasmuch as the offences for which the
appellant has been convicted inter alia of corruption are serious, grave
and corroding the society. The Crl. M. (Bail) 73/2018 is thus
dismissed.
17. Nothing stated hereinabove shall tantamount to expression of
the opinion on the merits or demerits of the case.
18. The matter be re-notified for 23.05.2018 along with connected
appeals, i.e., CRL.A.129/18, CRL.A.144/18, CRL.A.138/18,
CRL.A.46/18 & CRL.A.45/18.
ANU MALHOTRA, J
APRIL 23rd, 2018/mk
