Neeraj Mahajan vs Central Bureau Of Investigation
2019 Latest Caselaw 4388 Del

$~3
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 17.09.2019.

+      CRL.REV.P. 712/2019 & CRL.M.A. 13107/2019

       NEERAJ MAHAJAN                                    ..... Petitioner
                   Through             Mr. Sunil Dala with Mr. Harsh
                                       Khanna, Mr. Vivek Jain and Mr.
                                       Sandeep Khanna, Advs.

                          versus

       CENTRAL BUREAU OF INVESTIGATION       ..... Respondent
                   Through   Mr. Ripu Daman Bhardwaj, SPP

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          J U D G M E N T (ORAL)

1. Vide the present petition, the petitioner seeks to set aside /Quash the

Order and Judgment on charge dated 29.01.2019 and framing of charge and

order dated 05.02.2019 passed by learned Special Judge CBI-011, Rohini

Courts, Delhi, in CBI No. 52/2016 (old NO. 64/2008) Chander Lok CGHS

Ltd.

2. Case of the petitioner is that after incorporation/registration of any

CGHS, resignation by its members and joining of new members is permitted

under law. No previous member has reported any illegality/ irregularity in

the matter of their memberships. In any case any such irregularity in the

matter of management of CGHS has to be dealt under the relevant

provisions of the Delhi Co operative Societies Act and not under the penal

provisions of any law.

3. Learned counsel on behalf of petitioner further submits that

consequent to the amendment in the Prevention of Corruption Amendment

Act, 2018(16 of 2018), dated 26.07.2018 vide SO 3664(E), 26.07.2018,

Section 13(1)(d) of the Prevention of Corruption Act, 1988 has been omitted

and nothing survives in the chargesheet.

4. Learned counsel on behalf of petitioner further submits that there is

nothing on record, which contemplates to fulfill the requirement as

enumerated in section 154 of Cr. P.C., so if the registration of FIR/RC is

inadmissible and illegal in that event consequential investigation carried out

by the CBI as well as the chargesheet filed before this Court is inadmissible

in law and the petitioner is entitled to be discharged on this ground.

5. Learned counsel on behalf of petitioner further submits that another

important aspect with regard to the registration of the FIR/RC as well as the

investigation carried out by the CBI in the present case is that the CBI has

no Jurisdiction to even register the FIR. In this regard it is submitted that the

CBI is an organ of State which has been formed under Delhi Special Police

Establishment Act, 1946 for the investigation of specific offences notified

under section 3 of the said Act. The aforesaid FIR has been registered by the

CBI on the directions of this Court vide order dated 03.10.2005 in WP(C)

No. 10066/2004 which itself has no bearing in the eyes of law. As per the

provisions of section 3, 5 & 6 of Delhi Special Police Establishment Act,

1946, the power of the CBI to carry out investigation is restricted to

whatever provided by way of notification. In the absence of any such

notification the CBI is statutorily debarred from entering into the arena of

the investigation to any offence committed by any individual.

6. Learned counsel on behalf of the petitioner further submits that the

allegations contained in the chargesheet against the present petitioner are

that he has been allegedly shown as Vice President of the society which

itself is inadmissible as it is the admitted case of the CBI that the society was

under the control of Shri S.P. Saxena and Shri Srichand. There is no such

disclosure statement on record. Nothing incriminating has come on record

against the Petitioner/accused Neeraj Mahajan (A-13) which would become

basis of prima facie allegations to frame the charge. Regarding the

allegations of writings of petitioner confirmed by GEQD opinion is that the

specimen of the Petitioner has not been obtained with prior permission of

the Court. Even the opinion of GEQD is not applicable as enumerated by

this Court in case of "Rakesh Kumar V/s State 2004 (i) JCC 110.

7. Thus, it is made clear that the face value of the allegations, made in

the chargesheet, do not disclose the commission of any offence mentioned

therein and the petitioner is entitled to be discharged and more particularly

there is no permission/order of Special Judge is on record, which empowers

CBI to obtain hand writings and signatures of the petitioner and thus, he is

liable to be discharged on this ground.

8. Learned counsel on behalf of the petitioner submits that as per the

allegations contained in the chargesheet, the CBI has approved the

illegalities, which are apparent from the statements of the witnesses filed

along with the chargesheet, which shows that the investigation is tainted as

pick and choose policy has been adopted by the CBI. The case of the

petitioner is on the much better footing in comparison to the witnesses cited

aforesaid by the CBI while filing the chargesheet and as such no case is

made out against the petitioner. Learned counsel appearing on behalf of

petitioner has relied upon the case of Yogesh alias Sachin Jagdish Joshi

Vs. State of Maharashtra (2009)(1) SCC (Crl.) 51, whereby it is held that

"By and large, however, if two views are equally possible and the Judge is

satisfied that the evidence produced before him gives rise to suspicion only

as distinguished from grave suspicion, he will be fully within his right to

discharge the accused.

9. Learned counsel on behalf of the petitioner further submits that even

no case is made out as per the Judgement in the case of Rajeev

Mukhopadhyay v/s Registrar Co-operative Societies 141 (2008) DLT 321

DB of this Court. Thus, the case of the petitioner is squarely covered by the

aforesaid judgment.

10. Further case of the respondent/CBI is that the accused Srichand

surreptitiously obtained the records of the society including proceedings

register and membership register after the death of its Secretary Sh. Chander

Pal. He alongwith accused Anna Wankhade jointly prepared bogus minutes

of the meetings dated 08.05.1981, showing the resignations of 10 promoter

members and enrolments of 33 new members, including accused Anna

Wankhede, K.A. Kanekar and several bogus persons namely Surender

Pratap etc. The strength of the society was increased from 52 to 75. A false

another minutes of meeting dated 15.06.1986 were prepared by accused

Anna Wankhede showing the shifting of the office of the society from

Adhchini to 128 Vinoba Puri, Lajpat Nagar, New Delhi. The owner of the

said premises has denied having given the said premises to the society. In

the same minutes of meeting, there is mention of bogus election of the office

bearers of the society showing the accused Anna Wankhede, to have been

elected as its President, Kamlesh as its Vice-President, Surender Pratap as its

Secretary, K.A. Kanekar as its Treasurer and Chandra Prabha as its

Executive Member. The above named Surender Pratap is a bogus person and

his address recorded as G-S, Sector-12, R.K. Puram, New Delhi is non

existent. It is also stated that Chandra Prabha and Kamlesh too are non

existing members.

11. Further case of the respondent/CBI is that the minutes of the several

bogus meetings stated to have been held between the years 1986 and 1997

were prepared by accused Anna Wankhede. In the meeting dated 22.07.2001

election of the office bearers of the society is shown to have been conducted

by a bogus election officer S.K. Sharma, wherein the above office bearers

were re-elected. In another bogus minutes dated 03.09.2001, Surender

Pratap is shown to have been appointed as Secretary of the Society and K.A.

Kanekar as its Treasurer.

12. An application dated 07.09.2001 was submitted on behalf of the

society under the signature of bogus persons namely Surender Pratap as its

Secretary before the Assistant Registrar in the RCS office for revival of the

society and approval of its final list of members. In the letter that shifting of

the office of the society from Adhchini to Vinoba Puri was informed to RCS

office vide letter dated 18.06.1986 and the society did not receive the notice

of liquidation. It is further alleged that accused Satish Aswal, the dealing

clerk in the RCS office dishonestly and fraudulently as well as by abusing

his official position submitted a note dated 14.09.2001 recommending

sympathetic consideration of the request of the society for approval of its,

list of 75 members and also mentioned that the society had, vide its letter

dated 18.06.1986, submitted the list of 75 members for onward transmission

for allotment of land, whereas no such letter had been received in the RCS

office from the society and this fact was concealed by accused Aswal, in

addition to above material facts.

13. Further case of the respondent/CBI is that regarding the payment

scheme from different members by illegal means are against

Sl. Name Amount

1. Mohit 107,000

2. Madhu Saxena w/o Sh. S. P. 550,000 Saxena

3. Emrald Builders owned by S.P. 16,50,000 Saxena

4. Praveen Johri, A.K. Johri & 97,000 Pramod Johri

5. Kavita Sharma employee of S.P. 40,500 Saxena

6. Anita Kapasia w/o Sanjay Kapasia 28,000

7. Vasundara CGHS run by S.P. 33,65,000 Saxena

8. Panwal CGHS run by S. P. Saxena 2,75,000

9. Payment made to MTNL towards 13,810 bill of phone number of S. P.

Saxena

14. Neither in the chargesheet nor any of the witness have stated that the

petitioner have received money and siphoned off in his account. Further

allegation in the chargesheet is that the accused persons have allotted the flat

to the persons, who have not applied to the same and collected money from

them and allotted to their friends, near and dear, relatives and kith & kins.

However, there is no charge against the petitioner that the petitioner has

played fraud and allotted the flat to his known persons.

15. It is the case of the CBI that the allotment of the flat and money is

before 2004, whereas the petitioner came in picture in the year 2004. There

is no allegation in the chargesheet or the witness thereto, who states that the

petitioner has either misappropriated money or violated the rules of the

company or allotted the flat to any of his near and dear ones. It is also not

the case that the flats were allotted benami is in the name of the petitioner.

16. In view of above facts, since there is no evidence on record. It is a

settled law that if chargesheet and the witness go unrebutted, the petitioner

cannot be awarded conviction. Therefore, there is no purpose to ask the

petitioner to face trial which may take many years. In view of the facts

recorded above, I am of the considered view that the petitioner is entitled to

be discharged from the CBI case No.52/2016.

17. Consequently order of charge dated 29.01.2019 and frame of charge

on 05.02.2019 is hereby quashed with emanating proceedings thereto against

the petitioner.

18. Order dasti under the signatures of Court Master.

(SURESH KUMAR KAIT) JUDGE

SEPTEMBER 17, 2019 ms