Delhi District Court
Cbi vs K.K. Wadhwa Etc.(Lok Priya Vihar Cghs) on 14 July, 2026
DLCT110007722019
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. 23/2019
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND
U/s. 120-B/420/467/468/471 IPC
R/w. Section 13(2) r/w 13(1)(d) PC Act, 1988
CBI Vs. K.K. Wadhwa and Ors. (Lok Priya Vihar CGHS)
In the matter of:
State (Through Central Bureau of Investigation)
versus
(1) Sh. K.K. Wadhwa
Son of Late Sh. C.D. Wadhwa
R/o E-101, Sai Baba Apartment
Plot No. 4, Sector - 9, Rohini
New Delhi.
(2) Sh. Anil Kumar
Son of Sh. Khem Chand
R/o A-3/42, Sector-3, Rohini
New Delhi.
(3) Sh. Sunil Kumar
Son of Sh. Khem Chand
R/o A-3/42, Sector-3, Rohini
New Delhi.
Digitally
signed by
VIJETA
VIJETA SINGH
SINGH RAWAT CBI vs K.K. Wadhwa & Ors.
RAWAT Date:
2026.07.14
17:19:13 Criminal Case No. 23/19
+0530
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 1 of 224
(4) Sh. Devender Pal Singh
son of Sardar Bhag Singh
R/o K-I/103, C.R. Park,
New Delhi - 110019
(5) Dev Raj
S/o Late Bodh Raj (Expired on 12.09.2014 -
R/o T-496, Baljeet Nagar Proceedings abated vide
New Delhi. vide order dated 09.07.2018)
(6) Rajesh Kumar Khatri
S/o Sh. Dev Raj
R/o T-496, Baljeet Nagar
New Delhi.
(7) Ravi Saluja
S/o Sh. Nand Lal Saluja
R/o 16/256 (FF), New Moti Nagar
New Delhi.
(8) Banwari Lal Sharma
S/o Late Sh. C.B. Sharma (Discharged vide
R/o 34, Kohat Enclave, order dated
Pitampura, New Delhi 04.04.2012)
(9) R.K. Srivastava
S/o Sh. G.S. Srivastava
R/o G-12, HUDCO Palace,
Andrews Ganj, New Delhi.
(10) P.N. Manchanda
S/o Late Sh. D.R. Manchanda
R/o H-3/106, Vikas Puri,
New Delhi.
(11) Krishan Kumar (Discharged vide order
S/o Sh. Amar Singh dated 21.08.2024 in
R/o B-36, Pocket-B, Crl. M.C. no.3481/18)
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
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FIR No. 11(S)/2006/CBI/SCB-II/ND page no 2 of 224
Mayur Vihar, New Delhi.
............ Accused persons
Date of Institution : 27.01.2009
Arguments concluded on : 01.06.2026
Judgment Pronounced on : 14.07.2026
For State : Mr. Neel Mani, Ld. Public Prosecutor
(through CBI)
For Defence : Mr. R.K. Wadhwa and Sh. Ayush Singh,
Ld. Advocates for accused K.K. Wadhwa
Mr. Vijay S. Bishnoi, Ld. Advocate for accused
Sunil Kumar and accused Devender Pal Singh
Dr. Sushil Gupta, Ld. Advocate for accused
Anil Kumar and accused R.K. Srivastava
Mr. Sudesh Kumar and Sh. Vijay Kumar
Babbar, Ld. Advocates for accused Rajesh
Kumar Khatri
Mr. Rohan Yadav, Ld. Advocate for accused
Ravi Sauja.
Mr. R.P. Shukla, Ld. Advocate for accused P.N.
Manchanda.
JUDGMENT
INTRODUCTION
1. The genesis of the present case is order dated 02.08.2005 in Writ
Petition (Civil) No. 10066/2004 titled Yogi Raj Krishna Cooperative
CBI vs K.K. Wadhwa & Ors.
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Group Housing Society Ltd. vs Delhi Development Authority and others
wherein the Delhi High Court observed as under:
“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.”
2. Hence, Lok Priya Vihar CGHS (hereinafter, referred to as “the
Society”) was one such Co-operative Group Housing Society which was
investigated, pursuant to directions to CBI to conduct a thorough
investigation, in all matters of 135 Co-operative Societies, on 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 by reviving defunct / wound up societies on the basis
of false / forged documents and on recommendations of the Registrar of
Co-operative Societies (hereinafter, referred to as ‘RCS’), land was
allotted to the societies by the DDA at a subsidized rate.
ALLEGATION
CBI vs K.K. Wadhwa & Ors.
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3. It has been alleged that the Society was registered vide registration
no. 1033 S-GH on 07.12.1983 and directed to be wound up on
12.02.1992, as the Society was unable to fulfill the mandatory conditions
of The Delhi Co-operatives Societies Act, 1972 (hereinafter, referred to
as “The DCS Act”). After the Society was directed to be wound up, there
was no correspondence between the Society and the office of RCS for
nine years. Allegedly, accused K.K. Wadhwa (a property dealer having
office at Rohini), approached accused Dev Raj (since deceased) (who
had formed the Society in 1983) and offered to take over the
management of the Society. Thereafter, allegedly accused K.K. Wadhwa
prepared fake proceedings of the Society, forged other relevant
documents pertaining to the Society and submitted the same in the office
of RCS for revival of the Society. Allegedly, accused Dev Raj (since
deceased) and his son accused Rajesh Kumar Khatri prepared back dated
entries and obtained resignations from the promoter members by
misleading them. Accused K.K. Wadhwa, accused Anil Kumar, accused
Sunil Kumar, accused Ravi Saluja, accused Devender Pal Singh, accused
Dev Raj (since deceased) and accused Rajesh Kumar Khatri conspired
with accused R.K. Srivastava (then, RCS) and accused P.N. Manchanda
(then, Assistant Registrar (South)) to get the Society revived,
fraudulently and pursuant to the fraudulent revival of the Society, land
was allotted to the Society by DDA.
FIR
4. On the aforementioned complaint, FIR No. 11(S)/2006/CBI/SCB-
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II/ND (D-1) was registered on 14.09.2006, under Section 120B r/w 420,
467, 468, 471 IPC readwith 13(2) readwith 13(1)(d) of The Prevention of
Corruption Act 1988 (hereinafter referred as ‘The P.C. Act‘) against the
accused persons and investigation was marked to Sh. Richhpal, Inspector
of Police, CBI, ACB, New Delhi.
CHARGESHEET
5. Pursuant to the investigation, chargesheet under Section 120B
Indian Penal Code (hereinafter, referred as ‘IPC‘) readwith 420, 467,
468, 471 IPC readwith 13(2) readwith 13(1)(d) of The P.C. Act and 420,
467, 468 and 471 IPC against accused persons namely K.K. Wadhwa,
Anil Kumar, Sunil Kumar, Devender Pal Singh, Dev Raj (since
deceased), Rajesh Kumar Khatri, Ravi Saluja, Banwari Lal Sharma
(discharged by order dated 04.04.2012), R.K. Srivastava, P.N.
Manchanda and Krishan Kumar (discharged by order dated 21.08.2024
in Crl. M.C. no. 3481/2018) and for substantive offences under Section
13(2) readwith 13(1)(d) of The P.C. Act against accused Banwari Lal
Sharma (discharged by order dated 04.04.2012), accused R.K.
Srivastava, accused P.N. Manchanda and Krishan Kumar was filed on
27.01.2009.
6. As per the charge-sheet, the Society had its registered office at
Shop no. 233, Shopping Complex under flyover Defence Colony
registered on 07.12.1983 vide registration no. 1033 S-GH issued on
07.12.1983, was directed to be wound up vide order no.
F.47/1033/NGH/Coop/597 dated 12.02.1992 and liquidator was
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appointed vide order dated 25.07.1995 but no liquidation proceedings
took place. Thereafter, on 05.02.2000, an application under Section 63(3)
of The Delhi Co-operative Societies Act, 1972 (hereinafter, referred to as
‘The DCS Act’) was received from accused Devender Pal Singh as
President of the Society seeking cancellation of the winding up order. On
the application, accused R.K. Srivastava, then RCS made an
endorsement for examination of the matter and only thereafter, the file of
the Society was put into motion vide noting dated 15.05.2000 by accused
P.N. Manchanda as AR (South), RCS office. The said noting culminated
into calling of records of the Society for verification and to know the
opinion of the members in the General Body Meeting held on
16.04.2000, which was approved by the then RCS. It is only thereafter,
that accused Sunil Kumar as Secretary of the Society approached the
office of the RCS alongwith the records of the Society including
resolution of GBM dated 16.04.2000, proceedings of the last election
held on 22.08.1999 and account statements from the year 1991 to 2000.
On the basis of the documents produced by the Society, a proposal was
moved by accused P.N. Manchanda suggesting the use of power under
Section 63(3) of the DCS Act to cancel the winding up order dated
12.02.1992. The members of the Managing Committee of the Society
also were offered the opportunity of being heard by accused R.K.
Srivastava (then RCS) and after hearing them the proceedings registers
were taken on record. Accused Devender Pal Singh and accused Sunil
Kumar produced Membership Register for verification as per noting
dated 19.06.2000. Purportedly, after having gone through the records of
the Society, accused P.N. Manchanda proposed for cancellation of the
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winding up order dated 12.02.1992. The file was put up before accused
R.K. Srivastava in the presence of office bearers of the Society namely
accused Sunil Kumar and accused Anil Kumar and officials of RCS
office namely Sh. Krishan Kumar, Joint Registrar (South) (since
discharged vide order dated 21.08.2024) and accused P.N. Manchanda.
Thereafter, order dated 22.06.2000 was passed requiring the office
bearers of the Society to file an affidavit on behalf of the Society
stipulating that the Society would comply with all statutory liabilities in
future. On behalf of the Society, the affidavit was filed on the same day
and on same day accused P.N. Manchanda recommended the cancellation
of the winding up order dated 12.02.1992 and Sh. Krishan Kumar (since
discharged vide order dated 21.08.2024) on 26.06.2000 asked for putting
up of the draft order. Thereafter, accused R.K. Srivastava, RCS simply
approved the recommendation of accused P.N. Manchanda on
28.06.2000 without exercising his power for inspection of the Society or
call for general body meeting / management committee meeting.
Thereafter, the Society had applied for approval of the consolidated list
of 105 members for sending it to DDA for allotment of land to the
Society and also simultaneously, sought for approval of enrollments /
resignations of members. This request was dealt by accused P.N.
Manchanda. On 02.08.2000 accused Sunil Kumar, Secretary of the
Society produced the original records for verification and the records
were verified by the Dealing Clerk in the office of RCS who put up a
detailed note dated 03.08.2000 on direction of accused P.N. Manchanda.
On the basis of said note, list of 105 members was prepared and the said
note was forwarded to Sh. B.M. Sethi (Deputy Registrar) who forwarded
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it to Sh. Krishan Kumar who then forwarded it to accused R.K.
Srivastava for approval without raising any objections. Thereafter, on
05.09.2000, accused R.K. Srivastava sought clarification qua
permissibility of adoption of earlier management committee decision by
the existing Management Committee which was replied to by Sh.
Krishan Kumar in the affirmative that once the Society was revived, the
Management Committee in a fresh resolution can rectify the resignations
and enrollments done during the period of liquidation by stating that
there is no legal hitch in the decision. Reference was made to resolution
dated 23.07.2000 for rectification of resignations and enrollments done
during the period of liquidation. However, investigation revealed that
proceedings dated 23.07.2000 was fake. Accused R.K. Srivastava simply
acted on the recommendation of Sh. Krishan Kumar (since discharged)
without exercising his power under Section 54 of The DCS Act. Moreso,
ignoring that there were no correspondences between the Society and
RCS office for almost 09 years. It has also been alleged that Rule 105
under Delhi Co-operative Societies Rules, 1973 (hereinafter, referred to
as ‘The DCS Rules’) prescribed deemed termination of liquidation
proceedings after 03 years of the proceedings conducted by the
liquidator.
7. Investigation has also revealed that the accused persons in
conspiracy with each other have shown resignations of 42 members from
1986 to 2000 out of which 35 members were shown to have been
resigned from 1990-1995 when the Society was under liquidation. Out of
these members, 29 members have been shown to have resigned in 1994
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creating corresponding vacancies which were shown to have been filled
up in 1994 but infact, those enrollments were done during the period
1999 to 2000 i.e. prior to the revival of the Society. Also, the accused
persons particularly the private individuals conspired with each other to
create vacancies by forging the resignation letters of the concerned
members. Investigation further revealed that the list of members sent by
the Society to RCS for sending it to Delhi Development Authority
(hereinafter, referred to as ‘DDA’) contains the names of fictitious
members who denied having become a member of the Society. The
malafide intention of the aforesaid Society is also reflected from the fact
that after allotment of land by DDA, the Management Committee of the
Society consisting of accused Sunil Kumar, accused Devender Pal Singh
and accused Ravi Saluja have shown the resignations of fictitious
members with a view to adjust new members with ulterior motives. The
freeze list approved by RCS was sent to DDA for allotment of land and
finally, land was allotted to the Society on 13.02.2003 against payment of
Rs.2,19,18,000/- made from account no. 02SB 11029178 of Centurion
Bank of Punjab Ltd, Karol Bagh, New Delhi wherein accused Devender
Pal Singh, accused Sunil Kumar and accused Ravi Saluja were
authorized signatory in the said account.
8. Ld. Predecessor of this Court, took cognizance of the offences and
vide order dated 14.09.2009 summoned all accused persons (except
accused R.K. Srivastava, accused P.N. Manchanda and Sh. Krishan
Kumar). Sh. Krishan Kumar was summoned vide order dated
15.10.2009, accused P.N. Manchanda was summoned vide order dated
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26.10.2010 and accused R.K. Srivastava was summoned vide order dated
23.09.2010 after filing of sanctions for prosecution under Section 19 of
The P.C. Act qua them, respectively.
9. The accused persons entered their appearance on 15.10.2009,
23.09.2010 and 28.10.2010 and their applications for grant of bail were
allowed vide orders dated 15.10.2009, 05.11.2009, 23.09.2010,
28.10.2010.
10. In compliance of Section 207 of The Criminal Procedure Code,
1973 (hereinafter, referred to as ‘Cr.P.C.’), documents were supplied to
all the accused persons.
11. Thereafter, an application under Section 197 Cr.P.C. for
discontinuing/dropping/terminating the prosecution was moved on
21.07.2011 by accused Krishan Kumar for want of requisite sanction for
prosecution. The Ld. Predecessor of this Court vide detailed order dated
04.04.2012 dismissed the application observing as under:
“11. The object of Sec. 197 Cr.P.C. is not to put a wall around the public
servants in order to protect them from prosecution of criminal offences
committed by them. The protection is given to enable them to perform
their duties fearlessly by protecting their acts done in performance of
their duties. It is well established law that no sanction u/s 197 Cr.P.C. is
required for prosecution for offences of conspiracy, forgery and
cheating.
12. In these circumstances and for the above said reasons I am of the
opinion that the application filed on behalf the applicant/accused
Krishan Kumar is not maintainable. Hence, the same is hereby
dismissed.”
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12. On the same date, order on charge was also pronounced.
However, Sh. Krishan Kumar filed Crl. M.C. no. 3481/2018 wherein
he challenged order of cognizance dated 14.09.2009 (for want of
sanction for prosecution under Section 19 of The P.C. Act), order on
summoning dated 15.10.2009 and order on charge dated 04.04.2012.
(There was no challenge to order dated 14.09.2009, as per records.)
The same was decided vide order dated 21.08.2024 whereby, for
want of sanction under Section 197 Cr.P.C., he was discharged. SLP
No. 011163/2025 titled CBI Vs Krishan Kumar preferred by the CBI
is still pending adjudication. It is pertinent to mention here that
awaiting its outcome, the final arguments herein, were deferred on
29.07.2025, 28.08.2025, 17.09.2025 17.10.2025, 18.11.2025 and
12.01.2026. However, since it was submitted by the Ld. Public
Prosecutor on 13.01.2026 that as per instructions, the Court may
proceed with final arguments and in view of order dated 03.12.2024
in SLP Crl No. 16945/2024 titled CBI Vs. Rakesh Bhatnagar”
whereby, the SLP was dismissed, it was also requested by the
defence to proceed with the matter. Accordingly, the Court thereafter,
proceeded with the matter.
13. Accused P.N. Manchanda has also moved an application filed on
19.04.2024 seeking stay over proceedings in absence of sanction for
prosecution qua him under Section 197 Cr.P.C. on parity with Sh.
Krishan Kumar. However, the same was kept in abeyance vide order
dated 30.11.2024.
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CHARGE
14. Vide order on charge dated 04.04.2012, the Ld. Predecessor of this
Court framed charges against the accused persons on 23.04.2012 as
under:
S. No. Name of Accused persons under Sections
1. All accused persons Section 120B IPC readwith
Section 420/467,468,471 IPC
and Section 13(2) readwith
13(1)(d) of The P.C. Act.
2. Accused K.K. Wadhwa, Section 420/467/468 IPC
accused Dev Raj and
accused Ravi Saluja
3. Accused Anil Kumar, Section 420 IPC
accused Sunil Kumar, and
accused Rajesh Kumar
Khatri
4. Accused Devender Pal Section 420/467/468/ and 471
Singh IPC
5. Accused R.K. Srivastava, Section 13(1)(d) readwith
accused P.N. Manchanda 13(2) of The P.C. Act
and accused Krishan
KumarPROSECUTION EVIDENCE
15. In order to prove the charges, the prosecution examined 48
witnesses who can be categorized as under :
(i) Promoter Members; (ii) Fake Members (who never became the members of the Society); CBI vs K.K. Wadhwa & Ors. Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 13 of 224 (iii) Members who joined the Society in 1999-2000 but have been
shown to have become members in 1994-1995 ;
(iv) Members who were added post revival of the Society;
(v) Sanctioning authority;
(vi) Miscellaneous witnesses;
15.1 So far as, promoter members are concerned, the prosecution has
examined the following :
(i) Promoter members
Sl Witness Name of the Evidence Documents
no. no. witness
1. PW-2 Smt. Asha She deposed that she had Affidavit-Ex.
Rani become a member of the PW2/A (page no.
Society through her brother-in- 1155 of file
law Sh. Ashok Kumar. She Ex.PW40/E
admitted that affidavit dated (colly) D-3 vol.
11.11.1983 given at the time of III)
becoming the member was
signed by her and also that her Resignation letter
name is mentioned at sl no. 16 Ex.PW2/B (at
of the membership register page no. 3811 of
duly signed by her. But she File Ex.PW40/M
denied to have signed the Bye- (colly) D-11)
laws of the Society. She
denied having resigned from Entry at Serial no.
the membership vide letter 16 of membership
dated 05.09.2001. She also register
denied to have received any (Ex.PW10/A)
refund against receipt dated -Ex.PW2/C (D-12
19.10.2001 against resignation. Part-1)
Bye laws of the
Society-
Ex.PW2/D (D-20
at page no. 5233)
Receipt dated
19.10.2001-
Ex.PW2/E (page
no. 3813 of File
D-11).
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2. PW-3 Vinod He deposed that he had Affidavit dated
Katyal become a member of the 22.09.1983-
Society through his elder Ex.PW3/A (page
brother Sh. Ashok Katyal. He no. 1153, File
admitted that affidavit dated Ex.PW40/E(colly)
22.09.1983 given at the time of D-3 vol. III)
becoming the member was
signed by him and also that his Entry no. 15 in
name is mentioned at sl no. 15 Membership
of the membership register register-
duly signed by him. He Ex.PW2/C (D-12)
admitted to have signed the
Bye-laws of the Society at Resignation letter
Point X. He denied having dated 02.12.1994-
resigned from the membership Ex.PW3/B (page
vide letter dated 02.12.1994. no. 3815 file
He also denied to have Ex.PW40/M
received any refund against (colly) D-11
receipt dated 19.10.2001
against resignation.
3. PW-5 Sh. Umesh He deposed that he had Application dated
Kumar become a member of the 26.04.1985-
Society through accused Dev Ex.PW5/A (page
Raj on the basis of application no. 2567 of file
dated 26.04.1985. He admitted Ex.PW40/I
that affidavit dated 15.05.1985 (colly)) also D-10.
given at the time of becoming
the member was signed by him Affidavit
and also that his name is dated15.05.1985-
mentioned at sl no. 101 of the Ex.PW5/B (page
membership register and has no. 991 of File
been duly signed by him at Ex.PW40/E(colly)
Point A. He denied having D-3 vol. III).
resigned from the membership
vide letter dated 04.09.2001. Page no. 20 of
He also denied to have Membership
received any refund against Register (D-12)
receipt dated 19.10.2001 also Ex.PW10/A-
against resignation. Ex.PW5/C.
Resignation letter
dated 04.09.2001-
Ex.PW5/D (page
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no. 4163 file
Ex.PW40/M
(colly) D-11
Receipt dated
19.10.2001-
Ex.PW5/E (page
no. 4165 of File
D-11).
4. PW-10 Sh. Ashok He deposed that he had Membership
Kumar become a member of the register-Ex.10/A
Society some 30-35 years back (sl no. 3, D-12)
and had signed an application
form. Sh. Massa Ram was one Minutes of
of its office bearers. He had Meeting Ex.
paid membership fee of Rs. PW10/B (page no.
100/-. He was never elected an 4597) (D-14)
office bearer of the Society.
He denied that he ever Affidavit dated
participated in any of the 22.09.1983 – Ex.
Minutes of Meetings and also PW10/C (page no.
to have signed on Minutes of 1141 of File
Meetings dated 10.10.1983, Ex.PW40/E(colly)
05.06.1984, 29.07.1984, D-3 Vol-III)
08.08.1985, 25.07.1985,
14.12.1985, 31.03.1986, List of members
10.05.1986, 13.09.1986, Ex. PW10/D
02.11.1986, 01.02.1987, (page no. 1037 to
15.04.1987, 30.06.1987, 1045 of File
30.09.1987, 15.11.1987, Ex.PW40/E(colly)
31.12.1987, 31.03.1988, D-3 Vol-III))
31.05.1988, 31.08.1988,
30.09.1988, 15.01.1989, List of members
16.01.1989, 30.06.1989, annexed with Bye-
16.05.1989, 17.08.1989, laws – Ex.
30.11.1989, 14.01.1990, PW10/E (file Ex.
15.02.1990, 03.03.1990, PW40/E (colly)
31.05.1991, 30.07.1991, page no. 1093 to
30.08.1991, 30.09.1991, 1109 of D-3, Vol
29.10.1991 and 27.11.1993. He III)
further denied that affidavit
dated 22.09.1983 was affirmed List of members
by him. He denied the annexed with
signature at entry at Serial no. Intensive Inquiry
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9 of list of members attached to Proforma – Ex.
the affidavit, list of members PW10/F (page no.
annexed with application form 66 to 72 (Exhibit
for registration of the Society, Not mentioned in
signature at sl no. 9 list of the register), D-3,
members annexed with Vol-III)
Intensive Inquiry Proforma,
application for withdrawal of Application for
membership, cash receipt. He withdrawal of
denied signature as sl no. 75 in membership – Ex.
the List of members annexed PW10/G (page no.
with Bye laws 3849 of file
Ex.PW40/M
(colly) (D-11)).
Cash receipt - Ex.
PW10/H (page no.
3851 of file
Ex.PW40/M
(colly) (D11))
5. PW-13 Smt. She deposed that she had Page no. 3 of
Sudarshan become a member of the Membership
Kumari Society through accused Dev Register-
Raj (her brother) in the year Ex.PW10/A
1982-1983. She admitted that mentioning the
affidavit dated 22.09.1983 details of
given at the time of becoming complainant at
the member was signed by her Serial no. 11-
and also that her name is Ex.PW13/A.
mentioned at sl no. 11 of the
membership register and has Affidavit dated
been duly signed by her at 22.09.1983-
Point A. She admitted her Ex.PW13/B (page
signature on application for no. 55 of file
registration of the Society at sl Ex.PW40/E
no. 11, list of members (colly) D-3 Vol.
attached with Bye-laws at sl III
no. 11 and intensive enquiry
proforma at sl no. 11. PW10/D and
However, thereafter, she PW10/E
resigned vide letter dated mentioning her
30.05.2003 and received the particulars at
membership fee vide receipt Serial no. 11
dated 23.11.2001. She stated
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that she was a cashier of the Serial no. 11 of
Society in 1983 or 1984. She Intensive Enquiry
also attended GBMs. She Performa-
identified her signatures on Ex.PW13/C (page
minutes of meetings dated. no. 72 of file
10.10.1983, 20.12.1983, Ex.PW40/E
05.06.1984, 29.07.1984, (colly) D-3 Vol.
07.08.1985, 25.07.1985, III.
14.12.1985, 31.03.1986,
10.05.1986, 01.07.1986, Resignation letter
02.11.1986, 31.03.1987, dated 30.05.2003-
01.04.1987, 20.07.1987, Ex.PW13/D (page
31.03.1988, 31.05.1988, no. 84 of file
30.06.1989, 30.11.1989, Ex.PW40/M
30.12.1991, 27.02.1992, (colly) D-11.
06.04.1992, 30.04.1992,
30.08.1992, 30.10.1992, Receipt for refund
30.06.1993, 24.08.1993, of membership
27.11.1993, 28.01.1994, fee-Ex.PW13/E
28.02.1994, 29.03.1994, (page no. 85 of
28.05.1994, 12.09.1994 and File Ex.PW40/M
16.04.2000. She claimed that (colly) D-11
she could not remember (file-19).
whether she ever attended
meeting dated 22.08.1999 but Minutes of
identified her signature on the meeting dated
minutes. She deposed that 10.10.1983,
none from the RCS office 20.12.1983,
came to her for physical 05.06.1984,
verification of membership. 29.07.1984,
She stated that she was aware 07.08.1985,
that her name was included in 25.07.1985,
the list of members sent to 14.12.1985,
DDA for allotment of land in 31.03.1986,
which her name was included 10.05.1986,
but claimed ignorance about 01.07.1986,
whether the Society was 02.11.1986,
wound up and then revived. 31.03.1987,
01.04.1987,
20.07.1987,
31.03.1988,
31.05.1988,
30.06.1989,
30.11.1989,
30.12.1991,
Criminal Case No. 23/19
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FIR No. 11(S)/2006/CBI/SCB-II/ND page no 18 of 224
27.02.1992,
06.04.1992,
30.04.1992,
30.08.1992,
30.10.1992,
30.06.1993,
24.08.1993,
27.11.1993,
28.01.1994,
28.02.1994,
29.03.1994,
28.05.1994,
12.09.1994.
22.08.1999 and
16.04.2000-
Ex.PW13/F to
Ex.13/Z13,
respectively in
register
Ex.PW10/B
(D-14). Also,
Ex.PW12/E and
Ex.PW12/P in
Register
Ex.PW11/Z6
8. PW-22 Sh. Tejinder He deposed that he along with Application dated
Singh his mother became a member 15.07.1984-
in the Society in 1983 or 1984 Ex.PW22/A (page
through his tenant. He stated no. 84 of file
that the form was filled for his Ex.PW40/I (colly)
mother and the witness D-10 File-15).
continues to be the member of
the Society. He identified his Entry at serial no.
hand writing and signature on 84 of membership
application form dated register
15.07.1984, entry at serial no. (Ex.PW10/A)-
84 in the membership register Ex.PW22/B
(Ex.PW10/A), entry at serial
no. 88 in the name of his Application dated
mother in membership register 19.07.1984 of his
(Ex.PW10/A), application form mother
of his mother dated 19.07.1984 -Ex.PW22/D
and denied that he or his (page no. 65 of
mother never resigned from the file Ex.PW40/I
Criminal Case No. 23/19
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membership. He stated that (colly) D-10
resignation application dated File-15).
18.07.1985 was not given by
him or signed by him. He also Entry at serial no.
denied the signature on the 88 of membership
receipt dated 05.08.1985. Even register qua his
application dated 20.07.1985 mother
and receipt dated 03.08.1985 in (Ex.PW10/A)-
the name of his mother, were Ex.PW22/B.
not bearing the signature of his
mother. Resignation letter
dated 18.07.1985-
Ex.PW22/E (page
no. 71 of file
Ex.PW40/L
(colly) D-11
File-18).
Receipt dated
05.08.1985-
Ex.PW22/F (page
no. 72 of file
Ex.PW40/L
(colly) D-11
File-18).
Resignation letter
dated 20.07.1985-
of his mother
Ex.PW22/G (page
no. 79 of file
Ex.PW40/L
(colly) D-11
File-18).
Receipt dated
03.08.1985 qua
his mother-
Ex.PW22/H (page
no. 80 of file
Ex.PW40/L
(colly) D-11
File-18).
9. PW-24 Sh. Ram He deposed that he became a Application dated
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
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Chandra member of some Society in 12.07.1984 - Ex
1984 or 1985 through his PW24/A
brother-in-law Sh. Baldev Raj (page no. 80
who had brought the (wrongly
application which was filled by mentioned as 75
Sh. Baldev Raj. He identified in the testimony)
his signature on the application of file Ex. PW48/I
dated 12.07.1984, at sl no. 75 (colly), D-10, file
of membership register no. 15)
(PW10/A) and affidavit dated
09.08.1984. However, he Affidavit dated
denied having resigned from 09.08.1984 – Ex.
membership vide application PW24/B (file ex.
dated 27.08.1984 and to have PW40/E (colly)
received refund of membership Page no. 154 of
fee vide receipt dated D-3, Vol III)
28.09.1984
Resignation
application dated
27.08.1984 – Ex.
PW24/C (page no.
53 of file Ex. 40/C
(colly) D-11, File
18)
Receipt dated
28.09.1994 - Ex.
PW24/D (page no.
54 of file Ex. 40/C
(colly) D-11, File
18)
10. PW-27 Ms. Pushpa She testified that she had Application dated
Sagar joined the Society in 1985 09.05.1985
through her maternal uncle Sh. (overwritten as 04
Narendra Sagar who was on the document)
handed over the documents of – Ex. PW27/A
the Society by accused Dev (page no. 104 of
Raj. She never received any file Ex. PW40/I
communication from the (colly) D-10 file
Society and with efforts of her 15)
husband, the office of the
Society somewhere in Defence Affidavit dated
Colony was visited but accused 15.05.1985 – Ex
Dev Raj had left the office PW27/B
CBI vs K.K. Wadhwa & Ors.
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without winding it up. She (page no 129 of
denied having resigned from file Ex. PW40/E
membership. She identified her (colly) D-3, Vol-
signature on the application III)
form dated 09.05.1985,
signature at sl no. 104 of Application for
membership register (Ex. withdrawal from
PW10/A) and affidavit dated membership – Ex.
15.05.1985. She denied having PW27/C
signed the application for (page no. 128 of
withdrawal and to have file Ex. PW40/M
received any refund against (Colly) D-11, File
cash receipt dated 28.12.2001 no. 20)
Receipt – Ex.
PW27/D
(page no. 129 of
file Ex. PW40/M
(Colly) D-11, File
no. 20)
11 PW-29 Sh. Tarun He deposed that in 1982 or Affidavit dated
Kumar 1983 when he was a student, 22.09.1983-
Katyal he was made a member of the MarkA/PW29
Society through his relative (page no. 49 of
accused Dev Raj. At that time, file Ex.PW40/E
he was a student and aged (colly) D-3, Vol.
about 21 or 22 years. He also III.
stated that he did not recollect
what formalities were observed
to become a member. He also
never attended any meeting of
the Society. Even though, he
did not know the official
position of accused Dev Raj in
the Society, however he was
actively involved in the
formation of the Society. He
learnt about the name of the
Society at the CBI office. He
also stated that his mother had
received the refund of
deposited amount as no
allotment was made and had
resigned. He could not identify
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FIR No. 11(S)/2006/CBI/SCB-II/ND page no 22 of 224
his signature on membership
register Ex.PW10/A at serial
no. 17 due to lapse of time. He
also could not confirm his
signature on the affidavit.
12 PW-30 Sh. Ramesh He deposed that he had Affidavit dated
Kumar Jain become member of Society 22.09.1983-
through Sh. Shubhash Chand, Ex.PW30/A (page
his cousin and at that time had no. 25 of file
signed some papers. He denied Ex.PW40/E
having resigned from (colly), D-3., Vol.
membership. He identified his III.
signature at Serial no. 41 of
membership register Resignation letter
(Ex.PW10/A) at page no. 8 and dated 14.10.2001-
affidavit dated 22.09.1983. He Ex.PW30/B (page
denied that withdrawal letter no 19 of file
dated 14.10.2001 was written Ex.PW40/M
or signed by him. He also (colly) D-11,
denied the signature on the File-19.
receipt dated 23.11.2001. He
had never attended any Receipt dated
meetings of the Society. 23.11.2001-
Ex.PW30/C (page
no 20 of file
Ex.PW40/M
(colly) D-11,
File-19.
13 PW-31 Sh. Yashpal He could not identify the Affidavit dated
Jain signature on affidavit dated 22.09.1983-
22.09.1983. He further stated Ex.PW31/A (page
that he was only 13 years old no. 22 of file
then whereas on the affidavit Ex.PW40/E
his age is mentioned as 29 and (colly), D-3, Vol-
occupation as businessman. He III.
also could not confirm whether
the signature at serial no. 44 of Withdrawal letter
membership register 02.09.2001-
Ex.PW10/A at page no. 9 was Ex.PW31/B (page
his. He denied withdrawal no. 13 of file
letter dated 02.09.2001 and Ex.PW40/M
receipt dated 16.10.2001. (colly), D-11,
File-19.
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 23 of 224 Receipt dated 16.10.2001- Ex.PW31/C (page no 14 of file Ex.PW40/M (colly) D-11, File-19. 14 PW-38 Smt. Madhu She deposed that she had Affidavit dated become a member of the 22.09.1983-
Society in 1982-1983 and Ex.PW38/B (page
deposited Rs. 110/- as no. 48 of file
membership fee. She admitted Ex.PW40/E
her signature at serial no. 18 of (colly) D-3, Vol.-
membership register (page no. III.
4 of Ex.PW10/A), affidavit
dated 22.09.1983, resignation Resignation letter
letter dated 26.05.2003 and dated 26.05.2003-
cash receipt. Therefore, she Ex.PW38/A (page
had resigned from the no. 67 of file
membership in 1995 and had Ex.PW40/M
attended meetings of the (colly) D-11
Society till then. File-19.
Receipt-
Ex.PW38/C (page
no. 69 of file
Ex.PW40/M
(colly) D-11
File-19.
Carbon copy of
receipt-
Ex.PW38/D (page
no. 70 of file
Ex.PW40/M
(colly) D-11
File-19.
(ii) With regard to Fake Members (who never became the members of
the Society), the prosecution has examined the following :
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 24 of 224 Sl Witness Name of the Evidence Documents no. no. witness 1. PW-4 Sh. Durgesh He deposed that he never Application dated Yadav became a member of the 03.11.1994- Society. He denied the PW4/A (page no. signature on application 2691 of file dated 03.11.1994 (Q-1400 Ex.PW40/J
to Q-1402), photocopy of (colly) (D-10).
affidavit, that he received
any communication from Photocopy of
the Society even though, affidavit
list D-3 mentions him at sl Ex.PW4/B (page
no. 91, affidavit dated no. 2689 of file
10.05.2000 (Q-864 and Ex.PW40/J
Q-865), that he attended (colly) (D-10).
GBM dated 22.08.1999
(Q-1086) and the signature photocopy of list
at sl no. 21 and at sl no. of UPC postal
143 (Q-296 and Q-297) of certificate dated
membership register. He 27.07.1999 – Ex.
further stated that since he PW4/C (vide
never became a member of which agenda
the Society, he never notice dated
resigned from it. 26.07.1999 for
AGM on
22.08.1999 was
called) (page no.
687 of File
Ex.PW40/E
(colly))
(D-3, Vol-III)
Affidavit dated
10.05.2000- Ex.
PW4/D
(page no. 255 of
file Ex. PW40/D
(colly)) (D-3)
(Vol-II)
Photocopy of
minutes of
meeting dated
22.08.1999 - Ex.
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
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Sl Witness Name of the Evidence Documents
no. no. witness
PW4/E
(page no. 279 of
file Ex. PW40/E
(colly) of D-3,
Vol-III (original is
Ex. PW12/E)
2. PW-6 Sh. Dinesh He deposed that he never Entry no. 49 Ex.
Kumar Gulati became a member of the PW6/A (Page no.
Society. He denied his 10, of File Ex.
signature on affidavit dated PW10/A) (D-12)
22.09.1983, at sl no. 49 of
membership register Affidavit dated
already Ex. PW10/A, that 22.09.1983 –
he received any Ex.PW6/B (page
communication from th no. 1221 of File
Society even though, his Ex.PW40/E
name is mentioned at sl no. (colly) (D-3)
28 of UPC list dated (Vol-III).
22.03.2000 (vide which
agenda notice for GBM Resignation letter
dated 16.04.2000) was dated 11.02.2002
sent, that application for – Ex. PW6/C
withdrawal dated (page no. 3675 of
11.02.2002 (Q-1956 to file Ex. PW40/M
Q-1958) was signed by him (colly) (D-11)
against which on
21.03.2002 (Q-1959 and Cash receipt dated
Q-1960) refund of Rs. 21.03.2002 – Ex.
100/- was received by him PW6/D (page no.
against cash receipt dated 3677 o file
21.3.2002 (which did not Ex.PW40/M
bear his signature.) (colly) (D-11).
Photocopy of list
of UPC postal
certificate dated
22.03.2000 -
Mark PW6/X
(page no. 705 of
file Ex. PW40/E
(colly) (D-3)
(Vol-III).
CBI vs K.K. Wadhwa & Ors.
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Sl Witness Name of the Evidence Documents
no. no. witness
3. PW-7 Sh. Anil Kumar He deposed that he never Entry at sl no. 45
Gulati became a member of the Ex. PW7/A (page
Society or filed any no. 4511 of
document or attended any membership
meeting or received any register Ex.
communication from the PW10/A) (D-12).
Society or RCS office. He
denied signatures at sl on. Affidavit dated
45 at page no. 9 of 22.09.1983 – Ex.
membership register Ex. PW7/B (page no.
PW10/A, affidavit dated 1213 of file Ex.
22.09.1983, resignation PW10/E (colly)
letter dated 27.08.1994 D-3, Vol-III
(Q-1976 and Q-1977) and
cash receipt dated Resignation letter
27.09.1994 (Q-1978 and date 27.08.1994 –
Q-1979). Ex. PW7/C (page
no. 3691 of file
Ex. PW40/M
(colly) of D11
File - 19
Cash receipt dated
27.09.1994 - Ex.
PW7/D
(page no. 3693 of
file Ex. PW40/M
(colly) of D11
File - 19
4. PW-8 Ms. Shama She deposed that she never List of members
became a member of the as on 31.03.2000
Society or filed any - Mark PW8/X
document. She denied that ( page no. 1287
she was a member of the File no.
Society on 31.03.2000 as Ex.PW40/F)
shown at at sl no. 99 of list (D-3) (Vol IV)
of members as on
31.03.2000, application for Application for
membership dated membership dt.
12.12.1994 (Q-1431 and 12.12.1994 – Ex.
Q-1432), affidavit dated PW8/A (page no.
10.05.2000 (Q-898 and 2743
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 27 of 224 Sl Witness Name of the Evidence Documents no. no. witness Q-899), signature on File no. resignation letter dated Ex.PW40/J
25.12.2001 (Q-2720 and (colly)) (D-10)
Q-2720/1), signature on
cash receipt dated Affidavit dated
07.02.2002 (Q-2721 and 10.5.2000 – Ex.
Q-2721/1), signature at sl PW8/B (page no.
no. 151 at page no. 29 271
(Q-312 and Q-313) of File no.
membership register Ex. Ex.PW40/D
PW10/A. She denied that (colly)) (D-3)
she knew accused Dev Raj, (Vol II)
accused K.K. Wadhwa and
accused Sunil Kumar Resignation letter
- Ex. PW8/C
( page no. 4489
File no.
Ex.PW40/D
(colly)) (D-11)
Receipt - Ex.
PW8/D (page no.
4491
File no.
Ex.PW40/D
(colly)) (D-11)
Entry at sl no. 151
at page no. 29 of
membership
register Ex.
PW10/A - Ex.
PW8/E (page no.
4551) (D-12)
5. PW-9 Sh. Faqir He deposed that he never
Chand became a member of the
Society or submitted any
document or affidavit or
resigned from membership
or received any refund
from the Society.
Thereafter, as he could not
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
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FIR No. 11(S)/2006/CBI/SCB-II/ND page no 28 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
read the document due to
his medical condition, his
further examination was
closed.
6. PW-14 Sh. Nahar He deposed that he never Application form
Singh became a member of the dated 11.12.1994
Society or deposited any - Ex. PW14/A
membership fees or any (page no. 2709 of
other amount or any File Ex.PW40/J
document. He denied the (colly) (D-10))
signatures on application
for membership for photocopy of
application dated affidavit dated
11.12.1994 (Q-1409 to (not clear) – Ex.
Q-1411), affidavit, sl no. PW14/B (page
146 (Q-302 and Q-303), no. 2707 o file
page no. 28 of membership Ex.PW40/J
register Ex. PW10/A, (colly) (D-10)
affidavit dated 10.05.2000 (objected to being
(Q-873 and Q-874), photocopy)
resignation letter dated
06.01.2002 (Q-2272 to Photocopy of
Q-2274) and cash receipt ration slip – Ex.
dated 13.02.2002 (Q-2275). PW14/C (page
He also denied that share no. 2705 of file
certificate dated Ex.PW40/J
31.03.2001 was issued to (colly)) (D-10)
him. He denied having (objected to on
participated in GBM dated mode of proof)
12.02.1995, 03.12.1995,
24.11.1996, 19.10.1997, Entry at sl no. 146
22.09.1998, 22.08.1999, – page no. 28 of
16.04.2000. He denied membership
having received any register – Ex.
communication from the PW10/A – Ex.
RCS or the Society. He PW14/D (page
also confirmed that none no. 4549) (D-12)
came from RCS office for
physical verification of his Affidavit dated
membership 10.05.2000 – Ex.
PW14/E (page no.
261 of file
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 29 of 224 Sl Witness Name of the Evidence Documents no. no. witness Ex.PW40/O (colly) (D-3) (Vol-II) Receipt dated 03.04.2001 for submission of Rs. 1000/- as optional money - Ex. PW14/F (Q-2209 to Q-2211) (page no. 3925 of file Ex.PW40/M (colly) (D-11) Original Share Certificate - Ex. PW14/G (Q-2212 to Q-2215) (page no. 3927 of file Ex.PW40/M (colly) (D-11) Resignation letter dated 06.01.2002 - Ex. PW14/H (page no. 3933 of file Ex.PW40/M (colly)) (D-11) Cash receipt dated 13.02.2002 - Ex. PW14/J (page no. 3935 of file Ex.PW40/M (colly)) (D-11). Minutes of meeting are already Ex. PW12/L, Ex. CBI vs K.K. Wadhwa & Ors. Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 30 of 224 Sl Witness Name of the Evidence Documents no. no. witness PW12/M, Ex. PW12/N, Ex. PW14/K (page no. 4726 of File Ex.PW11/Z6 (D-15), Ex. PW14/L (page no. 4736 of file Ex.PW11/Z6 (D-15), Ex. PW12/E and Ex. PW12/P, respectively 7. PW-20 Sh. Daulat He deposed that he never Application dt. Ram became a member of any 19.7.1984, - Ex CGHS. On perusing the PW 20/A (page
application dt. 19.7.1984, no. 2591 of file
he deposed that particulars Ex.PW40/I
qua him were correct but it (colly)) (D-10)
was not signed by him. He
stated that the application Resignation letter
was brought by his wife but dated 11.10.2001
he never dealt with it and – Ex. PW20/B
his wife (Smt. Meena (page no. 3621 of
Kumari) was only 8th pass file Ex.PW40/L
whom he had not seen sign (colly)) (D-11)
or write in English. He
also denied having Cash receipt dt
submitted resignation letter 22.11.2001 – Ex.
dt. 11.10.2001 (Q-1902 and PW20/C (page
Q-1903) and denied the no. 3623 of file
handwriting and signature, Ex.PW40/L
thereupon. He also denied (colly)) (D-11)
the signature on cash
receipt dt. 22.11.2001 Affidavit –
(Q-1904 and Q-1905). He 09.08.1984 – Ex.
denied having affirmed PW20/D (page
affidavit dt. 09.08.1984. no. 967 of file
Ex.PW40/E
(colly)) (D-3 Vol-
III)
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 31 of 224 Sl Witness Name of the Evidence Documents no. no. witness Membership register ExPW10/ A at sl no. 89 was not shown to him. 8. PW-23 Sh. Deepak He deposed that he never Entry at sl no. 57 Bajaj became a member of the at page no. 11 of Society. He denied that at membership sl no. 57 of page no. 11 of register - Ex. membership register Ex. PW10/A (D-12) PW10/A, he had signed it at point A, though the Affidavit dated
particulars were correct. He 27.09.1983 – Ex.
denied the signatures on PW23/A (page
affidavit dated 22.09.1983, no. 1237 of file
resignation letter dated Ex.PW40/E
01.09.1994 (Q-1768 to (colly)) (D-3 Vol-
Q-1770) and receipt dated III)
27.09.1994 (Q-1771 and
Q-1773), He denied that he Resignation letter
knew accused Dev Raj, dated 01.09.1994
accused K.K. Wadhwa and – Ex. PW23/B
accused Sunil Kumar (page no. 3495 of
file Ex.PW40/L
(colly)) (D-11)
Receipt dated
27.9.1994 Ex.
PW23/C (page
no. 3497 of file
Ex.PW40/L
(colly)) (D-11)
9. PW-32 Sh. Naresh He deposed that he never Entry at sl no. 8
Kumar became a member of the of page no. 3 of
Society. He denied that at membership
sl no. 8 of page no. 3 of register Ex.
membership register Ex. PW10/A - Ex.
PW10/A, he had signed it PW32/A (page
at point A, though the no. 4498) (D-12)
particulars were correct. He
denied the signature on Affidavit dated
affidavit dated 22.09.1983, 22.09.1983-
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 32 of 224 Sl Witness Name of the Evidence Documents no. no. witness
resignation letter dated Ex.PW32/B (page
12.07.1994 (Q-2139 to no. 1139 of file
Q-2142) and receipt dated Ex.PW40/E
21.08.1994 (Q-2143 and (colly)) (D-3 Vol-
Q-2144). III)
Resignation letter
dated 12.07.1994
- Ex. PW32/C
(page no. 3853 of
file Ex.PW40/M
(D-11 Vol-I)
Receipt dated
21.08.1994 Ex.
PW32/D (page
no. 3855 of file
Ex.PW40/M
(colly)) (D-11)
10. PW-33 Sh. Vinod He deposed that he never Entry at sl no. 141
Kumar became a member of the of page no. 28 of
Society. He denied that at membership
sl no. 141 (Q-292 and register Ex.
Q-293) of page no. 28 of PW10/A (page
membership register Ex. no. 4549) (D-12)
PW10/A, he had signed it
at point A, though the Application dated
particulars were correct. He 02.11.1994 – Ex.
denied the signature on PW33/B (page
application form dated no. 2679 of file
02.11.1994 (Q-1394, to Ex.PW40/J
Q1396), affidavit dated (colly)) (D-10)
10.05.2000 (Q-858 and
Q859), resignation letter Affidavit dated
dated 20.12.2001 (Q-2318 10.05.2000 – Ex.
to Q-2320) and receipt PW33/A (page
dated 02.02.2002 (Q-2321). no. 251 of file
Ex.PW40/D
(colly)) (D-3 Vol-
II)
Resignation letter
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 33 of 224 Sl Witness Name of the Evidence Documents no. no. witness dated 20.12.2001 - Ex. PW33/C (page no. 3971 of file Ex.PW40/N (colly)) (D-11) Receipt dated 02.02.2002 - Ex. PW33/D (page no. 3973 of file Ex.PW40/M (colly)) (D-11) 11. PW-34 Sh. Surender He deposed that he never Entry at sl no. 48 Kumar became a member of the of page no. 9 of Society. He denied that at membership sl no. 48 of page no. 9 of register Ex. membership register Ex. PW10/A (page
PW10/A, he had signed it no. 4511) (D-12)
at point A, though the
particulars (except age) Resignation letter
were correct. He denied the dated 01.09.1994
signature on resignation – Ex. PW34/A
letter dated 01.09.1994 (page no. 3679 of
(Q-1961 to Q-1963) and file Ex.PW40/M
receipt dated 28.09.1994. (colly)) (D-11)
(Q-1964 and Q-1965).
Receipt dated
28.09.1994 - Ex.
PW34/B (page
no. 3681 of file
Ex.PW40/M
(colly)) (D-11)
12. PW-35 Ms. Sunita She deposed that she never Entry at sl no. 153
became a member of the of page no. 30 of
Society but was made to membership
sign certain documents by register Ex.
her father-in-law. She PW10/A (page
admitted that she had no. 4553) (D-12).
signed at point X at sl no.
153 (Q-316 and Q-317) of Application form
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 34 of 224 Sl Witness Name of the Evidence Documents no. no. witness
page no. 30 of membership dated 13.12.1994
register Ex. PW10/A Ex. PW35/A
though the particulars were (page no. 2755 of
correct. She admitted her file Ex.PW40/J
signatures on the (colly)) (D-10)
application form dated
13.12.1994 (Q-1436 to Affidavit dated
Q-1438), affidavit dated 10.05.2000 Ex.
10.05.2000 (Q-905 and PW35/B (page
Q-906), resignation letter no. 275 of file
dated 03.06.2002 (Q-2702) Ex.PW40/D
at point A and on receipt (colly)) (D-3 Vol-
dated 18.07.2002 (Q-2703) II)
at point A.
Resignation dated
03.06.2002- Ex.
PW35/C (page
no. 4471 of file
Ex.PW40/O
(colly)) (D-11)
receipt Ex.
PW35/D (page
no. 4473 of file
Ex.PW40/O
(colly)) (D-11)
13. PW-37 Sh. Rajesh He deposed that he never Entry at sl no. 147
Yadav became a member of the of page no. 29 of
Society. He denied that at membership
sl no. 147 of page no. 29 of register Ex.
membership register Ex. PW10/A (page
PW10/A and Q-304 was no. 4551) (D-12)
not in his handwriting, he
denied he had signed Application dated
application for membership 12.12.1994 – Ex.
dated 12.12.1994 at PW37/A (page
(Q-1412 to Q-1414), also no. 2715 of file
on resignation letter dated Ex.PW40/J
24.12.2001 (Q-2216 and (colly)) (D-10)
Q-2217) and receipt dated
04.02.2002 (Q-2271), he Resignation dated
denied his signatures at 24.12.2001- Ex.
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 35 of 224 Sl Witness Name of the Evidence Documents no. no. witness points Q-2217 or they PW37/B
having been filled in his (page no. 3929 of
handwriting file Ex.PW40/N
(colly)) (D-11)
Receipt dated
04.02.2002 Ex.
PW37/C (page
no. 3931 of file
Ex.PW40/N
(colly)) (D-11)
(iii) The following Members had joined the Society immediately
before moving of application for withdrawal of liquidation proceedings
but have been shown to have become members in 1994 or around that
time:
Sl Witness Name of the Evidence Documents
no. no. witness
1. PW-12 Smt. Shanti She deposed that she Application dated
Devi became member of CGHS 02.11.1994 –
about 17-18 years back. Ex. PW12/A
She tendered her (Q-1391 to
application for membership Q-1393) (page no.
and affidavit dated 2673 of File Ex.
10.05.2000 in evidence. PW40/J (Colly)
She deposed that she had (D-10)
paid Rs. 2,00,000/- by way
of cheque for which she Affidavit dated
was shown the receipt 10.05.2000 – Ex.
dated 19.12.2001 but could PW12/B (Q-856)
not confirm it if it was (page no. 249 of
given to her by the Society. File Ex. PW40/D
She identified her (colly) (D-3, Vol-
membership at sl no. 140 II)
of the membership register
Ex. PW10/A. She also
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 36 of 224 Sl Witness Name of the Evidence Documents no. no. witness
could not confirm whether Her membership
the receipt dated at sl no. 140 Ex.
02.04.2001 was issued to PW12/C at page
her against her membership no. 4547 (Q-290
and whether share and Q-291) of the
certificate was also issued membership
to her. She deposed that she register of Ex.
had resigned from the PW10/A.
membership and in support
thereof, relied upon Receipt dated
resignation letter dated 19.12.2001 for
20.02.2003 Ex. PW12/G Rs. 2,00,000/-
and receipt dated (Q-2322 and
19.12.2001, 02.04.2001 Q-2323) Ex.
and 28.03.2003. She PW12/D (page
deposed that she did not no. 3975 of file
attend GBM dated Ex. PW40/M
22.08.1999 and 27.09.1998 (colly) (D-11)
and they were not signed
by her. She also denied to
have attended the GBM Receipt dated
dated 07.09.1998, 02.04.2001 for
12.02.1995, 03.12.1995, Rs. 1000/-
24.11.1996, 16.04.2000, (Q-2324 and
and 19.11.2000. Q-2325) Ex.
However, it is also PW12/E (page no.
emerging from her 3977 of file Ex.
examination in chief that PW40/M (colly)
she became member of the (D-11)
executive committee of the
Society but could not recall Share certificate –
whether it was through the Ex. PW12/F
election. She stated that no (Q-2326 to
physical proof of the Q-2329) (page no.
membership was carried 3979 of file Ex.
out by the RCS. She further PW40/M (colly)
deposed that she did not (D-11)
know if her name was in
the consolidated list of Resignation dated
members sen to the DDA. 20.02.2003 – Ex.
PW12/G (Q-2330
and 2331) (page
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 37 of 224 Sl Witness Name of the Evidence Documents no. no. witness no. 3981 of file Ex. PW40/M (colly) (D-11) Receipt dated 28.03.2003 of Rs.20,000/- - Ex. PW12/H (Q-2332 and Q2333) (page no. 3983 of file Ex. PW40/M (colly) (D-11) Minutes of meeting dated 22.08.1999 - (Ex. PW12/J though it has been mentioned as Ex. PW12/E on the said minutes) (Q-115) (D-15) Minutes of meeting dated 27.09.1998 - (Ex. PW12/K) (Q-96) (page no. 4737) (D-15) Minutes of meeting dated 12.02.1995 - (Ex. PW12/L) (page no. 4695) (Q-3) (D-15) Minutes of meeting dated 03.12.1995 - (Ex. PW12/M) (page no. 4705) (Q-25) CBI vs K.K. Wadhwa & Ors. Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 38 of 224 Sl Witness Name of the Evidence Documents no. no. witness (D-15) Minutes of meeting dated 24.11.1996 - (Ex. PW12/N) (page no. 4716) (Q-56) (D-15) Minutes of meeting dated 16.04.2000 - (Ex. PW12/P) (page no. 4757) (Q-144) (D-15) Minutes of meeting dated 19.11.2000 - (Ex. PW12/Q)(page no. 1631) (D-7) 2. PW-15 Sh. Vijender He deposed that he became Application dated Singh a member of the Society in 11.12.1994 - Ex.
1999 through accused Dev PW15/A (Q-1406
Raj (since deceased) and at to Q-1408) (page
that time, he had deposited no. 2703 of file
membership fees along Ex.
with some documents with PW40/J(colly)
the application form. He (D-10)
deposed that he met
accused Dev Raj (since
deceased) at the office of Affidavit dated
accused Sunil Kumar but 10.05.2000 – Ex.
failed to identify accused PW15/B (Q-870
Sunil Kumar in the Court. and Q-871) (page
He denied having filed no.259 of file Ex.
application for membership PW40/D(colly)
dated 11.12.1994. He also (D-3, Vol-II)
deposed that the signature
against name as per sl no. Receipt dated
145 of membership register 02.04.2001 –
(Q-300 and Q-301) Ex. Ex. PW15/C CBI vs K.K. Wadhwa & Ors. Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 39 of 224 Sl Witness Name of the Evidence Documents no. no. witness PW10/A were not his, (Q-2276 and
affidavit dated 10.05.2000 Q-2277) (page no.
was also not affirmed by 3937 of file Ex.
him and he did not receive PW40/N(colly)
receipt of Rs.100/- as no (D-11, Vol-II)
such amount was paid by
him to the Society. He also Share Certificate
denied that share certificate dated 31.03.2001
was received by him. He –
could not recall whether he Ex. PW15/D
had resigned from the (Q-2279 to
membership of the Society. Q-2281) (page no.
He denied his signature at 3939 of file Ex.
sl no. 35, 25 and 47 of PW40/M(colly)
minutes of meetings dated (D-11)
03.12.95, 22.08.99 and
16.04.2000. He stated that Resignation letter
none from the RCS office dated 24.12.2001
conducted any physical Ex. PW15/E
verification of the (Q-2282 and
membership. He claimed Q-2283) (page no.
ignorance whether his 3941 of file Ex.
name was featured in the PW40/M(colly)
list of members sent to (D-11)
DDA for allotment.
Receipt dated
04.02.2002 -
Ex. PW15/F
(Q-2284) (page
no. 3943 of file
Ex.
PW40/M(colly)
(D-11)
3. PW-16 Smt. She deposed that she Application dated
Meenakshi became a member of the 25.06.1994-
Chaddha Society in 1995 through Ex.PW16/A (page
her father Sh. Dev Raj 7 of file
(accused). She identified Ex.PW40/I (colly)
her signature on application D-10 File-15).
form, affidavit dated
10.05.2000, serial no. 134 Affidavit dated
of membership register 10.05.2000-
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 40 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
(Ex.PW10/A), resignation Ex.PW16/B (page
letter dated 01.06.2003 and 237 of file
receipt. She stated that her Ex.PW40/D
Smt Shanti Devi was her (colly) D-3, Vol-
grandmother. She attended II.
4-5 meetings of the
Society. However, she Resignation letter
pleaded ignorance as to dated 01.06.2003-
who were the President and Ex.PW16/E (page
the Secretary of the no. 4017 of file
Society. She confirmed that Ex.PW40/M
no one from the RCS office (colly) D-11,
came for the physical File-20).
verification of her
membership. Also, she Receipt-Ex.
pleaded ignorance whether PW16/F (page no.
her name was mentioned in 4019 of file
the Perusal of Ex.PW16/A Ex.PW40/M
shows that she has (colly) D-11,
mentioned her father as late File-20).
Sh. Kundan Lal Fialok and
mother as Smt. Shanti Devi
Fialok whom before the
Court she claimed was her
grandmother).
4. PW-21 Sh. Rajesh He deposed that he became Entry at serial no.
Jaggi a member of the Society in 130 (Ex.PW21/A)
1994 at instance of accused (Q-270). in
Dev Raj as his son, Sh. membership
Rajesh Kumar was a register
supplier of building -Ex.PW10/A
material which used to be (D-12)
purchased by the witness.
However, he stated that he Application dated
had resigned in 2000. 23.06.1994
Between 1994 to 2000, he -Ex.PW21/B
had attended 1-2 meetings (Q-1380 and
of the Society. He Q-1381) (page no.
identified his signature at 2501 of file Ex.
Serial no. 130 of PW40/I (Colly)
membership register- (D-10)
Ex.PW10/A, application
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 41 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
form dated 23.06.1994, Resignation letter
resignation letter dated dated 15.12.2001-
15.12.2001 and receipt Ex.PW21/C
dated 29.01.2002, (Q-2372) (page
proceeding dated no. 4033 of file
12.02.1995 (already Ex. PW40/N
Ex.PW12/L at serial no. (Colly) (D-11)
18), 03.12.1995
(Ex.PW12/M at serial no. Receipt dated
15), 24.11.1996 29.01.2002-
(Ex.PW12/N at serial no. Ex.PW21/D
6), 19.10.1997 (Q-2373) (page
(Ex.PW14/K at serial no. no. 4035 of file
15), 27.09.1998 Ex. PW40/M
(Ex.PW14/L at serial no. (Colly) (D-11)
18), 22.08.1999
(Ex.PW12/E at serial no.
17).
5. PW-26 Sh. Suresh He deposed that he became Application dated
Kumar a member in the Society in 14.12.1994 – Ex.
2000 through one of his PW26/A (Q-1439
neighbor Sh. Anil Kumar to Q-1441) (page
who gave the proposal to no. 2761 of file
him. Thereafter, along with Ex.
Sh. Anil Kumar went to an PW40/J(colly)
office at Patel Nagar where (D-10)
he did the requisite
formalities of acquiring Affidavit dated
membership. There, 10.05.2000 – Ex.
accused Dev Raj was also PW26/B (Q-908
present. The witness had and Q-910) (page
paid Rs. 110 to become a no. 277 of file Ex.
member of it. He tendered PW40/D (colly)
his application dated (D-3, Vol-II)
14.12.1994 wherein he
identified his signature at Resignation dated
Q-1441 but could not 12.04.2003 –
confirm whether Q-1439 Ex. PW26/C
and Q-1440 were in his (Q-2692) (Page
handwriting. He also no. 4461 of file
confirmed his signature Ex PW40/O
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 42 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
against Serial no. 154 in (colly) (D-11)
the membership register
Ex.PW10/A. Affidavit receipt dated
dated 10.05.2000 was also 28.03.2003 –
tendered in evidence by Ex. PW26/D
him. Subsequently, he (Q-2693) (Page
claimed to have resigned no. 4463 of file
from membership vide Ex PW40/O
resignation letter dated (colly) (D-11)
12.04.2003 signed by him
at Q-2692 but he stated that
neither the date nor the
membership number were
in his handwriting. He
tendered the refund receipt
dated 28.03.2003 in
evidence but questioned the
amount as he stated that he
had only received Rs. 110/-
by cash and no amount of
Rs. 3600/- was refunded by
him.
(iv) Members who were added post revival of the Society were
examined as under :
Sl Witness Name of the Evidence Documents
no. no. witness
1. PW-25 Sh. Kewal He deposed that he became Application dated
Krishan a member in the Society in 01.07.2000-
2003 through one Sh. Ex.PW25/A (page
Bijender Yadav. All no. 2789 of file
documents in regard to the Ex.PW40/J
membership were brought (colly)) also
to him by Sh. Bijender D-10.
Yadav to whom the witness
had also paid the Affidavit dated
membership fee of Rs. 100- 24.07.2000
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 43 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
110/-. He tendered his Ex.PW25/B (page
application form dated no. 285 of File
01.07.2000 (Q-1458 to Ex.PW40/D
Q-1460), entry at serial no. (colly)) (D-3 Vol-
158 of membership register II)
(he identified his signature
at Point A) (Q-327) and Resignation letter
affidavit dated 24.07.2000 dated 15.02.2003
(Q-922 and Q-923). He Ex.PW25/C (page
explained that the year of no. 4439 of File
joining could have been Ex.PW40/O
2000. Thereafter, as in (colly) (D-11)).
2004, when he was
informed by Sh. Bijender Receipt dated
Yadav that Rs. 36 lakhs 28.03.2003
were to be paid for a flat at Ex.PW25/D (page
Dwarka, the witness no. 4439 of File
resigned as he wanted a flat Ex.PW40/O
at Rohini. He then also (colly) (D-11)).
tendered his resignation
letter dated 15.02.2003
(Q-2668) and cash voucher
dated 28.03.2003 vide
which he had received the
refund of his membership
fee.
2. PW-28 Sh. Sanjay He stated that he became a Application dated
Nandwani. member of the Society in 01.07.2000
2000 through his friend Sh. Ex.PW28/A
Kewal Sharma at the Real (page no. 2801 of
Estate office of the latter. file Ex.PW40/J
The proposal was given to (colly) (D-10)).
him by Sh. Kewal Sharma.
He had deposited Rs. 2.5 Affidavit dated
lakhs within six months but 24.07.2000
could not pay the demand Ex.PW28/B (page
of Rs. 5-6 lakhs due to no. 289 of file
financial constraints. He Ex.PW40/D
stated that he had never (colly) (D-3)).
attended any meeting of the
Society and could not Resignation letter
recollect whether any dated 09.06.2002
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 44 of 224 Sl Witness Name of the Evidence Documents no. no. witness communication was Ex.PW28/C (page received by him from the no. 4425 of file Society. He has tendered Ex.PW40/O
his application form dated (colly) (D-11))
01.07.2000 (Q-1462),
identified entry at Serial Refund receipt
no. 160 in register Ex. dated 22.07.2002
PW10/A (he has identified Ex.PW28/D (page
his signature at Point A no. 4427 of file
(Q-327)), affidavit dated Ex.PW40/O
24.07.2000 (Q-928 to (colly) (D-11))
Q-930) in evidence. He
also tendered his
resignation letter dated
09.06.2002 (Q-2654) and
refund receipt dated
22.07.2002 (Q-2655) for a
sum of Rs. 2,58, 600/- in
evidence.
3. PW-36 Sh. Vimal He deposed that he became Affidavit dated
Johar a member of the Society 24.07.2000
through his friend Sh. Ex.PW36/A (page
Sanjay Nandwani (PW28) no. 291 of file
who is a friend of accused Ex.PW40/D
K.K. Wadhwa. He has (colly) (D-3)).
identified entry at Serial
no. 161 in register Ex. Resignation letter
PW10/A and tendered dated 15.12.2001
affidavit dated 24.07.2000 Ex.PW36/B (page
(Q-931 to Q-933) in no. 4415 of file
evidence. He also tendered Ex.PW40/O
his resignation letter dated (colly) (D-11))
15.12.2001 (Q-2644) and
refund receipt dated Refund receipt
29.01.2002 (Q-2645) for a dated 29.01.2002
sum of Rs. 100/- evidence. Ex.PW36/C (page
no. 4417 of file
Ex.PW40/O
(colly) (D-11))
(v) Sanctioning authority
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 45 of 224 Sl PW Name of witnesses Documents no No. 1. PW-17 Sh. S.G. Mulchandaney He deposed that he authenticated the Sanction order dated 16.08.2010, Ex. PW17/A qua accused R.K. Srivastava 2. PW-18 Sh. Jitendra Kumar Singh He deposed that he authenticated the authenticated Sanction order dated 11.08.2009 Ex.PW18/A qua accused Krishan Kumar 3. PW-47 Sh. P.P. Agarwal Letter bearing no.
(worked with Late Sh. V.K.S. F.7(A)/05/2008//DOV/7521
Chauhan Authenticated dated 12.07.2010
Sanction order dated Sanction order dated
12.07.2010) 12.07.2010, Ex. PW47/B qua
accused P.N. Manchanda
(vi) Miscellaneous Witnesses as under:
Sl Witness Name of the Evidence Documents
no. no. witness
1. PW-1 Sh. Rajesh He deposed that he came in Certified copy of
Aggarwal contact with accused K.K. Account opening
Wadhwa through an form – Ex.
acquaintance when the PW1/A (page no.
former wanted to sell his 6263) (D-30)
property 272, Deepali,
Pitampura, Delhi. At the Proceedings of
same time, the witness also meeting dated
expressed his desire to rent 10.10.1994 –
out a cabin at his office at Mark AB (page
201, Namdhari Chamber, no. 4688) (D-14)
Deshbandhu Gupta Road,
Karol Bagh. Thereafter, in
2000-01, a person came to
him with reference of
accused K.K. Wadhwa to
avail the office space on
rent. At that time, the said
person had disclosed that
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 46 of 224 Sl Witness Name of the Evidence Documents no. no. witness the purpose of lease was to run the office of Lokpriya Vihar, CGHS. The witness had rented out the office space for running the aforementioned CGHS but he could not recall the name of the other functionaries of the CGHS. He also stated that he had a bank account at Bank of Punjab, Gurudwara Road where the witness also introduced the account of the Society. He stated that accused Anil Kumar had taken the office space on rent. He agreed that accused Devender Pal Singh, accused Sunil Kumar and accused Ravi Saluja were the President, Secretary and the Treasurer of the Society, respectively. However, thereafter, stated that his knowledge on the same was premised upon the documents shown to him by the IO. He confirmed that that Sh. Rohit Aggarwal (PW-11) is his brother-in-law who became a member of the Society in 2000-2001 on suggestion by the witness. However, the witness turned hostile on the identity of the signature of accused Devender Pal Singh, accused Sunil Kumar, accused Anil Kumar and accused Ravi CBI vs K.K. Wadhwa & Ors. Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 47 of 224 Sl Witness Name of the Evidence Documents no. no. witness Saluja on the account opening form. He also did not support the case of the prosecution that Q-24 also Mark AB (minutes of MC meeting dated 10.10.1994) at page no. 92 of the register (D-14) was in the handwriting of accused K.K. Wadhwa 2. PW-11 Sh. Rohit He deposed that accused Entry at Serial Aggarwal K.K. Wadhwa was a real no. 165 - Ex.
(brother-in-law estate dealer and friend of PW11/A (on page
of PW-1) Sh. Rajesh Aggarwal no. 4557 32 of
(PW1). He stated that the membership
office of accused K.K. register
Wadhwa was in Rohini. He (Ex.PW10/A)
confirmed that he became ( (D-12)
member of the CGHS in
the year 2001 through Minutes of
PW1. He had deposited Rs. meeting dated
100/- along with 14.04.03 – Ex.
application form to acquire PW11/B (page
the membership. It has also no. 4885 of file
been stated by him that Ex. PW41/H
when he became a member (colly) (D-17)
of the Society of accused
K.K. Wadhwa, accused Minutes of
Ravil Saluja and accused meeting dated
Anil Kumar were looking 04.05.03 – Ex.
after the affairs of the PW11/C (page
Society. He identified his no. 4888 of file
membership at sl no. 165 Ex. PW41/H
of the membership register (colly) (D-17)
Ex. PW10/A. He deposed
that he became the Minutes of
President in 2002 and on meeting dated
the date of deposition i.e. 19.06.03 – Ex.
on 29.09.2018 and he PW11/D (page
continued to be the no. 4891 of file
President of the Society. Ex. PW41/H
However, he deposed that (colly) (D-17)
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 48 of 224 Sl Witness Name of the Evidence Documents no. no. witness accused Devender Pal Singh and accused Sunil Kumar were not known to Minutes of
him. It has also been stated meeting dated
by him that when he 13.07.03 – Ex.
became a member of the PW11/E (page
Society accused K.K. no. 4893 of file
Wadhwa, accused Ravi Ex. PW41/H
Saluja and accused Anil (colly) (D-17)
Kumar were looking after
the affairs of the Society. Minutes of
However, he deposed that meeting dated
accused Devender Pal 03.08.03 - Ex.
Singh and accused Sunil PW11/F (page
Kumar were not known to no. 4895 of file
him. He tendered minutes Ex. PW41/H
of meeting dated 14.4.03, (colly) (D-17)
4.5.03, 19.6.03, 13.7.03
and 3.8.03 upon which he Minutes of
not only identified his meeting dated
signature but also of Sh. 15.09.03 – Ex.
Manoj Arora, the Treasurer PW11/G (page
of the Society and that no. 4897 of file
accused Sunil Kumar was Ex. PW41/H
the Secretary of the (colly) (D-17)
Society. Thereafter, he also
tendered minutes of Minutes of
meeting dated 15.09.03, meeting dated
11.10.03, 19.11.03, 11.10.03 - Ex.
23.12.03, 31.01.04 PW11/H (page
08.03.04, 03.06.04, no. 4899 of file
28.06.04, 25.07.04, Ex. PW41/H
07.09.04, 17.10.04, (colly) (D-17)
22.12.04, 24.02.05,
26.03.05, 23.04.05, Minutes of
22.07.05, 20.08.05, meeting dated
22.10.05, 15.12.05, 19.11.03 - Ex.
10.02.06 and 28.02.06 PW11/J (page no.
4901 of file Ex.
He deposed that he had PW41/H (colly)
never attended meeting (D-17)
dated 28.03.2001
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 49 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
Minutes of
Meeting dated
23.12.03 - Ex.
PW11/K (page
no. 4903 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
31.01.04 - Ex.
PW11/L (page
no. 4905 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
08.03.04 - Ex.
PW11/M (page
no. 4907 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
03.06.04 - Ex.
PW11/N (page
no. 4909 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
28.06.04 - Ex.
PW11/P (page
no. 4911 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 50 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
25.07.04 - Ex.
PW11/Q (page
no. 4913 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
17.10.2004 - Ex.
PW11/R (page
no. 4915 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
22.12.2004 - Ex.
PW11/S (page
no. 4917 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
24.02.04 - Ex.
PW11/T (page
no. 4919 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
26.03.05 - Ex.
PW11/U (page
no. 4921 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
23.04.05 - Ex.
PW11/V
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 51 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
(page no. 4924 of
file Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
22.07.05- Ex.
PW11/W (page
no. 4925 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
20.08.05 - Ex.
PW11/X (page
no. 4926 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
22.10.05 - Ex.
PW11/Y (page
no. 4928 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
15.12.05 - Ex.
PW11/Z (page
no. 4930 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
10.02.06 Ex.
PW11/Z1 (page
no. 4933 of file
Ex. PW41/H
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 52 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
(colly) (D-17)
Minutes of
meeting dated
28.02.06 - Ex
PW11/Z2 (page
no. 4936 of file
Ex. PW41/H
(colly) (D-17)
Minutes of
meeting dated
28.03.01 - Ex.
PW11/Z3 (page
no. 4792 of file
Ex. PW41/G
(colly) (Mark
PW45/2) (D-16)
Affidavit dated
04.07.2001
(Q-404) - Ex.
PW11/Z3A -
(page no. 547 of
file Ex. PW40/D
(colly) (D-3, Vol-
II
Application form
dated 14.03.2001
(Q-1579 and
Q-1580) - Ex.
PW11/Z3B (page
no. 3269 of file
Ex.PW40/K
(colly) (D-10)
Certified copy of
specimen
signatures card of
Bank of Punjab
Limited - Ex.
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 53 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
PW11/Z4 (page
no. 6241) (D-30)
Ex. PW11/Z5 -
(page 7153) 161
statements.
Proceedings
register - Ex.
PW11/Z6 -
(D-15)
Check list for
submission of
audit report - Ex.
PW11/Z7 -
(page no. 1257 of
file Ex. PW40/F)
(D-3, Vol-IV)
to
certificate with
regard to cash in
hand as on
31.3.91 of Lok
Priya Vihar
CGHS - Ex.
PW11/Z57 -
(page no. 1369 of
file Ex. PW40/F)
(D-3, Vol-IV)
Photocopy of
Noting dated
09.10.01 - Ex.
PW11Z-58 (page
no. 1381 of file
Ex. PW40/M
(colly) (D-6)
Letter dated
08.08.05 sent by
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 54 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
Lok Priya Vihar
CGHS to The
Deputy Director,
DDA - Ex.
PW11/Z-58 (page
no. 1469 of file
Ex. PW40/M
(colly) (D-6)
Copy of noting
with Ref:
Allotment of
Land to wait
listed Co-
operative
Societies dated
15.10.01 - Ex.
PW11/Z-59 (page
no. 1383 of file
Ex. PW40/M
(colly) (D-6))
Copy of notice
dated 17.10.01 -
Ex. PW11/Z60
(page no. 1385 of
file Ex. PW40/M
(colly) (D-6))
Noting dated
15.01.02 - Ex.
PW11/Z-61 (page
no. 1389 of file
Ex. PW40/M
(colly) (D-6))
Noting dated
18.03.02 and
27.01.03 - Ex.
PW11/Z-62 (page
no. 1391 of file
Ex. PW40/M
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 55 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
(colly) (D-6))
Copy of Noting
dated 04.02.03 -
Ex. PW11/Z-63
(page no. 1393 of
file Ex. PW40/M
(colly) (D-6))
Noting dated
17.04.03 - Ex.
PW11/Z-64 (page
no. 1395 of file
Ex. PW40/M
(colly) (D-6))
Noting dated
23.06.03 - Ex.
PW11/Z-65 (page
no. 1397 of file
Ex. PW40/M
(colly) (D-6))
Noting dated
29.09.03 - Ex.
PW11/Z-66 (page
no. 1389 of file
Ex. PW40/M
(colly) (D-6))
Noting dated
02.01.04 - Ex.
PW11/Z-67 (page
no. 1401 of file
Ex. PW40/M
(colly) (D-6))
Noting dated
18.03.04 - Ex.
PW11/Z-68 (page
no. 1403 of file
Ex. PW40/M
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 56 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
(colly) (D-6))
Noting dated
24.08.05 - Ex.
PW11/Z-69 (page
no. 1405 of file
Ex. PW40/M
(colly) (D-6))
Noting dated
02.11.05 - Ex.
PW11/Z-70 (page
no. 1407 of file
Ex. PW40/M
(colly) (D-6))
Noting dated
06.01.06 and
31.01.06 - Ex.
PW11/Z-71 (page
no. 1409 of file
Ex. PW40/M
(colly) (D-6))
Ex. PW11/Z-72
to Ex.
PW11/Z-118
Copy of list of
members Ex.
PW11/Z-119
(page no. 1621 of
file Ex. PW40/M
(colly) (D-6))
3. PW-40 Sh. B.P. Mishra To prove report and Forwarding letter
Govt. reasons bearing no.
Examiner, 391/3/11/2006/S
GEQD. He identified the signature CB-II/DLI dated
of Ms. K.B. Jena on report 29.01.07 from SP,
Ex. PW40/C SCB CBI – Ex.
PW40/A (colly) –
page no. 6185
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 57 of 224 Sl Witness Name of the Evidence Documents no. no. witness (file no. 35) Forwarding letter bearing no. DXC46/2007/193 6 dated 11.12.2007 From GEQD to SP, SCB, CBI - Ex. PW40/B (page no. 6225 of File Ex. PW40/A (Colly) (D-27)) Opinion / Report bearing No. DXC-46/2007 Ex. PW40/C (page no. 6227 of file Ex.PW40/A (colly) (D-27). (mentioned as Ex. PW44/C) Q-400A to Q-1048 in File D-3, Vol-II - Ex. PW 40/D (colly) Q-1069 to Q-1161 in File D-3, Vol-III - Ex. PW 40/E (colly) Q-1162 to Q-1300 in File D-3, Vol-IV - Ex. PW 40/F (colly) CBI vs K.K. Wadhwa & Ors. Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 58 of 224 Sl Witness Name of the Evidence Documents no. no. witness Q-1301 to Q-1334 in File D-19 - Ex. PW 40/G (colly) Q-1335 to Q-1368 in File D-6 - Ex. PW 40/H (colly) Q-1369 0A to Q-1383 in File D-10, Vol-I - Ex. PW 40/I (colly) Q-1384 to Q-1578 in File D-10, Vol-II - Ex. PW 40/J (colly) Q-1579 to Q-1738 in File D-10, Vol-II - Ex. PW 40/K (colly) Q-1739 to Q-1949 in File D-11, Vol-II - Ex. PW 40/L (colly) Q-1950 to Q-2175 in File D-11, Vol-I - Ex. PW 40/M (colly) CBI vs K.K. Wadhwa & Ors. Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 59 of 224 Sl Witness Name of the Evidence Documents no. no. witness Q-2176 to Q-2217 and Q-2271 to Q2465 in File D-11, Vol- II - Ex. PW 40/N (colly) Q-2466 to Q-2721 in File D-11, Vol-IV - Ex. PW 40/O (colly) Q-2722 to Q-2742 in File D-25 - Ex. PW 40/P (colly) S-1 to S-48, S-49 to S-128, S-183to S-212, S-213to S-252 S-253to S-289, S-290to S-312, S-313to S-364, S-365toS-391, S-392to S-407, and S-408 to S-417 in File Ex. PW 40/Q (colly) Reasons for opinion dated 11.12.2007 - Ex. PW40/S - (page no. 129 D-1) CBI vs K.K. Wadhwa & Ors. Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 60 of 224 Sl Witness Name of the Evidence Documents no. no. witness 4. PW-41 Sh. Richhpal He proved the various Samples already Singh - IO stages of investigation and Ex. PW40/Q deposed that specimen (colly) and handwritings / signatures Ex. PW40/R given by Harish Kumar, Ish (Colly). Kumar, accused Devender Pal Singh, accused Krishan FIR RC Kumar Wadhwa, accused 11(S)/2006 - Sunil Kumar, accused Anil (D-1) - Ex. Kumar, accused Rajesh PW41/A (page Kumar Khatri, accused no.115) Ravi Saluja, accused Prem Nath Manchanda Receipt memo
voluntarily in his presence. dated 22.09.2006
(D-2) – Ex.
PW41/B
(page-139)
Receipt memo
dated 21.03.2007
- Ex. PW41/C
(page no. 5273 of
file Ex. PW40/R
(colly) (D-21)
Letter dated
24.03.2007 sent
by Centurion
Bank of Punjab
to SP CBI - Ex.
PW41/D (colly)
(page no. 6239)
(D-29)
Receipt memo
dated 13.04.2006
(part of D-4) -
Ex. PW41/E
Membership
register 356/06
(D-13) - Ex.
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 61 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
PW41/F (colly)
Proceeding
register - Ex.
PW41/G (colly)
(also Mark
PW45/2)
(D-16)
Proceeding
register 360/06
(D-17) - Ex.
PW41/H (colly)
File no. 361/06
(D-18) - Ex.
PW41/I (colly)
File no. 363/06
(D-20) - Ex.
PW41/J (colly)
Receipt memo
dated 17.04.2006
(part of D-5) -
Ex. PW41/K
General Body
Meeting register
364/06 (D-7) -
Ex. PW41/L
(colly)
File (D-8) - Ex.
PW41/M (colly)
6 files (D-9) -
Ex. PW41/N-1 to
Ex. PW41/N-6,
respectively
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 62 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
5. PW-42 Sh. Sudhir To prove specimen S-1 to S-48,
Kant handwritings / signatures S-173to S-182,
voluntarily given by S-253to S-289,
accused Krishan Kumar S-290to S-312,
Wadhwa, accused Sunil S-313to S-364,
Kumar, accused Anil
Kumar, accused Rajesh Ex. PW 40/Q
Kumar Khatri and accused (colly)
Ravi Saluja
6. PW-43 Sh. V.S. Dagar To prove specimen S-79 to S-128,
handwritings / signatures S-365to S-391,
voluntarily given by S-392to S-407,
accused Anil Kumar, S-408to S-417,
accused Prem Nath
Manchanda, accused Sunil Ex. PW 40/Q
Kumar and accused Rajesh (colly)
Kumar Srivastava
7. PW-44 Sh. Suresh To prove specimen S-149 to S-172
Khullar writing / signatures Ex. PW40/Q
voluntarily given by (colly)
accused Krishan Kumar
Wadhwa
8. PW-39 Sh. Parasnath – He deposed that land was Letter bearing no.
Officer from allotted to Lokpriya Vihar F.7(23)2001/GH/
DDA CGHS. He identified the DDA 858 dated
signature of (i) Sh. K.G. 13.02.03 sent by
Kashyap, Dy. Director on DDA to the
letters dated 03.10.2000 Society – Ex.
and 01.02.2006 (ii) Sh. PW39/A (page
M.C. Singhal, Dy. Director no. 1549 of file
(GH) on allotment letter Ex. PW40/M
dated 13.02.2003 (colly)
Letter bearing no.
F.7(23)2001/GH/
DDA 1554 dated
01.02.06 sent by
DDA to the
Society - Ex.
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 63 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
PW39/B (page
no. 1413 of file
Ex. PW40/M
(colly)
copy of letter
bearing no.
F.47/19/GH/Coop
/Policy/2067
dated 03.10.2000
- Mark PW39/A
(page no. 1619 of
file Ex. PW40/M)
(colly)
9. PW-45 Sh. Arun He deposed that Lokpriya His membership
Kumar s/o Vihar CGHS was formed at sl no. 131 Ex.
accused Sh. by his father which he ran PW10/C (Q-273)
Dev Raj for about ten years and page no. 4543 of
thereafter, handed over to the membership
one Mr. Wadhwa register of Ex.
this witness was cross PW10/A (D-12).
examined by the State as
he was resiling from his Death certificate
earlier statement. of his maternal
grandfather –
He also confirmed his Mark PW45/1
signature against Serial no. (file no. 35 part
131 in the membership of D-26)
register Ex.PW10/A. He
further deposed that the Management
proceedings of General Committee
Body Meeting dated Meetings dated
10.10.1994 were in the 20.01.2001 to
handwriting of his father 18.04.2002 –
accused Dev Raj (since Mark PW45/2
deceased). He identified (D-16 register)
his signature as well as that
of his father on General Body
Management Committee Meetings dated
Meetings dated 15.01.1995 19.11.2000 to
to 10.12.2000 already Ex. 21.12.2003 –
PW11/Z (D-15) Mark PW45/3
Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 64 of 224 Sl Witness Name of the Evidence Documents no. no. witness (page no. 1629 (D-7 File no. 7)) Statement u/s 164 Cr.P.C. - Ex. PW45/A (chargesheet D-1 page no. 149) 10. PW-46 Sh. Ajay He deposed he filed the Kumar chargesheet as the case was entrusted to him for filing of the chargesheet upon transfer of the IO Sh. Richhpal Singh 11. PW-48 Sh. Ravinder He deposed that he was Letter dated Choudhary - appointed as architect of 16.02.2002 for Architect the Society on his appointment of application to an contractor - Ex. advertisement in PW48/1 - page
newspaper for appointment no. 5481 of file
of architects well as civil Ex. PW40/R
contractors. He deposed (colly)(part of
that became a member of D22)
the CGHS through Sh.
Ashok Gupta in 2003 after Letter dated
paying the membership fee 20.02.2002 sent
of Rs. 10100/- and had by the witness to
received the receipt and the Society for
share certificate. Sh. Ashok shortlisting of
Gupta was known to him contractors – Ex.
as he was timber supplier PW48/2 - page
at Sunny Valley CGHS no. 5483 of file
where the witness was an Ex. PW40/R
Architect. (colly)(part of
D22)
He agreed that he entered
into an agreement to design Letter dated
Chitrakoot Dham CGHS 22.02.2002 for
and Sh. Ashok Gupta was appointment of
one of the signatories in it contractors for
CBI vs K.K. Wadhwa & Ors.
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 65 of 224
Sl Witness Name of the Evidence Documents
no. no. witness
on behalf of the Society. construction of
The cost of project was 90 dwelling units
between 15 to 20 crores of the Society
and he was to be paid 2% sent by the
as fees of which partial Society to him –
payment had been made. Ex. PW48/3
page no. 5485 of
He claimed ignorance file Ex. PW40/R
about original registration (colly) (part of
of the Society, subsequent D22)
liquidation and revival of
the society. Letter dated
18.03.2002 sent
He proved his application by him to the
for membership. He Secretary of the
identified his membership Society for
details at sl no. 25 in list correction in the
mark PW5/X. He denied tender documents
having received any – Ex. PW48/4
communication from RCS page no. 5491 of
office. file Ex. PW40/R
(colly) (part of
D22)
Letter dated
26.03.2002 for
construction of
90 dwelling units
of the Society
sent by him to the
Society – Ex.
PW48/5 page no. 5493 of file Ex. PW40/R (colly) (part of D22) Letter dated 30.03.2002 regarding appointment as a contractor of the CBI vs K.K. Wadhwa & Ors. Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 66 of 224 Sl Witness Name of the Evidence Documents no. no. witness Society - Ex. PW48/6 page no. 5499 of file Ex. PW40/R (colly) (part of D22)
16. Prosecution evidence was closed vide order dated 16.09.2023.
STATEMENT OF ACCUSED PERSONS UNDER SECTION 313
READWITH SECTION 281 CR.P.C.
17. Statement of accused K.K. Wadhwa was recorded on 15.05.2024
and when the incriminating evidences were put to him, he denied the
same. He denied that it was through his reference that chamber no. 201,
Naamdhari Chambers, Desh Bandhu Gupta Road, Karol Bagh, New
Delhi was leased out to the office of Lok Priya Vihar CGHS by Sh.
Rajesh Aggarwal (PW-1). He stated that there was nothing on record to
show that the said property was used by the accused. On his association
with accused Anil Kumar, he denied that accused Anil Kumar was his
business associate. He claimed ignorance about the enrollments and
resignations of the members in the Lok Priya Vihar CGHS. He denied
that the specimen signature S-129 to S-182 pertained to him. He denied
that he had given any such specimen writing / signature. He thereafter,
also questioned the report of the handwriting expert Ex. PW40/C stating
that the handwriting expert lacks experience and qualification of an
expert and stated the report was not reliable due to mixing up of the
Criminal Case No. 23/19
ID No. 181/2019
FIR No. 11(S)/2006/CBI/SCB-II/ND page no 67 of 224
documents with those of case numbered as DCX-46/07. According to
him, he has been falsely implicated in the present case and the witnesses
have deposed against him at the instance of the Investigating Officer. He
also denied the contents of statement Ex. PW45/A (statement of PW45
Sh. Arun Kumar s/o accused Sh. Dev Raj under Section 164 Cr.P.C.)
17.1 During recording of statement under Section 313 Cr.P.C. on
22.05.2024, accused Anil Kumar has pleaded ignorance about
incriminating evidences appearing against him. When explanation was
sought about his association with accused K.K. Wadhwa, he denied that
he was a business associate of accused K.K. Wadhwa during the relevant
period of time. He also denied that he had requested Sh. Rajesh
Aggarwal (PW-1) to provide any premises on rent for running the office
of Lok Priya Vihar CGHS. He also stated that it was incorrect that Sh.
Rajesh Aggarwal (PW-1) had met him at the office accused K.K.
Wadhwa. He discarded the handwriting expert’s report on the ground that
there was mix up of documents in cases numbered DXC 46/07 and DXC
47/07 and therefore, the report is doubtful. He also stated that the report
Ex. PW40/C has failed to disclose what principles of scientific
examination and instruments had been employed by the handwriting
expert to arrive at the finding. Also, it has been stated by him that the
report cannot be relied upon as there were no rough notes and
photographs annexed along with the report to show that the documents
were scientifically examined. He has also denied that his specimen
writings and signatures S-49 to S-128 and S-253 to S-259 were given by
him and least in the presence of PW42 Sh. Sudhir Kant or PW-43 Sh.
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V.S. Dagar. He also denied any association between accused Dev Raj
(since deceased) and accused Sunil Kumar as has emerged from the
examination of PW-15 Sh. Vijender Singh. He also denied acquaintance
with any of the accused persons. He claimed that none of the
prosecution witnesses had deposed against him. He stated that he had
been falsely implicated due to malicious, vexatious and perfunctory
investigation conducted by the investigating agency.
17.2 Statement of accused Sunil Kumar was also recorded on
22.08.2024 and he has denied the incriminating evidences appearing
against him and brushed aside the facts as matter of record. In specific,
on being asked that whether along with co-accused Devender Pal Singh
and co-accused Ravi Saluja, he discharged the duty as office bearer
(Treasurer) in the Managing Committee of the Lok Priya Vihar CGHS,
he stated that it is a matter of record. He also admitted that prior to
appointment of Sh. Rohit Aggarwal (PW-11) as the President of the
Society, the President of the Society was co-accused Devender Pal Singh.
He denied that Sh. Vijender Singh (PW-15) had met co-accused Dev Raj
(since deceased) at the office of the accused. He also denied having
given specimen signature (S-1 to S-48) during investigation to the IO/SI
Richhpal (PW-41) in the presence of the independent witness Sh. Sudhir
Kant (PW-42). He stated that the prosecution witnesses had not deposed
against him and the documents relied upon by the prosecution had been
manipulated by the Investigating Officer with some other people. He
pleaded ignorance and claimed false accusation.
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17.3 During examination of statement under Section 313 Cr.P.C. on
22.08.2024 accused Devender Pal Singh has denied incriminating
evidences appearing against him. However, when he was questioned
regarding opening of account of Lok Priya Vihar CGHS at Centurion
Bank of Punjab, Gurudwara Road, Karol Bagh on introduction by Sh.
Rajesh Aggarwal (PW-1), the accused stated that it was a matter of
record. He also did not deny the fact that prior to Sh. Rohit Aggarwal
(PW-11) being the President of the Society, the accused himself had
officiated as President of the Society. As per him, witnesses who have
denied to have been the member of the Society had deposed incorrectly
qua their questioned signatures. He also claimed that the handwriting
expert’s report Ex. PW40/C is not reliable as the expert did not examine
the documents utilizing principles of scientific examination and detection
of forgery with the help of scientific instruments such as lenses of
various wave length and microscope with various types of lighting
arrangement. He claimed ignorance about the reasons on which the
opinion of the handwriting expert Sh. B.P. Mishra (PW-40) was
premised. He admitted that the investigating officer SI Richhpal (PW-41)
had taken his signatures on certain papers. He could not recall whether
independent witness was present when his specimen signatures had been
taken. On being questioned about the appointment of Sh. Ravinder
Chaudhary (PW-48) as the architect of the Lok Priya Vihar CGHS, he
stated that it was a matter of record. However, he claimed ignorance
about the fact whether Sh. Ravinder Chaudhary (PW-48) was acquainted
with Rajesh Aggarwal (PW-1) and was recommended by him. He denied
that any of the prosecution witnesses had deposed against him. He
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claimed innocence. He alleged that the investigation is unfair, tainted,
perfunctory and biased. He also alleged that the Investigating Officer had
manipulated the documents.
17.4 On 12.07.2024, statement under Section 313 Cr.P.C. of accused
Ravi Saluja was also recorded. During his examination, the accused
stated that formation of the Society by accused Dev Raj (since deceased)
having office at 223, Under Flyover Market, Defence Colony is a matter
of record. However, he pleaded ignorance about association between
accused Dev Raj (since deceased) and accused K.K. Wadhwa. He also
claimed ignorance about the status of existence of Sh. Nar Singh
(Maternal Grandfather of Sh. Arun Kumar (PW-45)) who was shown to
have resigned on 09.02.2001 whereas he had expired in 1986. However,
regarding Sh. Rajesh Aggarwal (PW1) having been the introducer of the
account of the Society at Centurion Bank of Punjab, Gurudwara Road,
Karol Bagh, he stated that it was a matter of record. He also admitted
that when accused Devender Pal Singh was officiating as the President of
the Society, accused himself was its Treasurer and accused Sunil Kumar
was the Secretary. As regards, fake resignation of members, he denied
the same stating that the witnesses had deposed under the influence of
CBI. Similar are his responses to statements of witnesses who testified
that they never became members of the Society and could not have
therefore, resigned and hence, resignations were also fake. Qua his
specimen signatures/handwritings S-313 to S-364 (part of Ex.PW40/Q
(colly)), he stated that they were given under the pressure of the IO. He
claimed false implications, manipulation of the documents by the IO and
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unfair investigation. He opted to lead defence evidence.
17.5 When accused Rajesh Kumar Khatri was examined under
Section 313 Cr.P.C on 04.06.2024, his general responses to incriminating
evidences have been that he denied the same for want of knowledge
except that he stated that the formation of the Society by his father
accused Dev Raj (since deceased) is a matter of record and that Smt.
Sudershan Kumari (PW-13) and Ms. Madhu (PW-38) have both deposed
that Minutes of Meeting dated 31.07.1994 (Ex.PW13/D1) and dated
12.09.1994 (Ex.PW13/Z13) which the prosecution attributed to the
accused, were not written by him. He questioned the professional
qualification of the handwriting expert Sh. B.P Mishra (PW-40) and his
examination for want of disclosure of scientific tools employed by him
during examination of the documents. As regards, his specimen
signatures/handwritings S-290 to S-312 ( part of Ex.PW40/Q (colly)), he
stated that it is a matter of record. However, he added to it that IO Sh.
Richhpal Singh (PW41) could not recall whether the specimen
signatures/handwritings of the accused had been taken or not and that
from his testimony, there was no confirmation that the accused had got
the promoter members to resign. Even though, the accused did not deny
the signature of independent witness Sh. Sudhir Kant (PW-42) on S-290
to S-312 (part of Ex.PW40/Q (colly)), he stated that the witness could
not identify any of the persons whose specimen signatures/handwritings
had been taken as he was not introduced to them. He has stated that none
of the prosecution witnesses deposed against him to the effect that
Minutes of Managing Committee Meeting dated 31.07.1994 and
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12.09.1994 (Ex.PW13/Z13) were in the handwriting of the accused.
Also, that there is no evidence on record to show that the accused
obtained the resignation of any of the members of the Society by
misleading him/her. He further that he never held any post of any office
bearer of the Society or derived any undue benefit from the Society. He
chose to lead defence evidence.
17.6 Statement of accused R.K. Srivastava under Section 313 Cr.P.C.
was recorded on 22.05.2024. His examination reveals that he did not
have knowledge regarding the proceedings of the Society and qua
enrollments and resignations of the members. When he was questioned
regarding the sanction for prosecution Ex. PW17/A, he has submitted
that the sanction order is without application of mind and has been
granted without proper appreciation of the provisions of DCS Act, 1972
and DCS Rules, 1973. It has also been stated by him that S.G.
Mulchandney (PW-17) was not the sanctioning authority. He also has
stated that advice of CVC sent to the Prime Minister’s Office and
approval of the Hon’ble Prime Minister have not been placed on record.
When the notings in File Ex.PW19/A was put to him, he stated that the
same are matter of record except for notings bearing signatures of Sh.
Ramesh Chandra, Assistant Registrar qua which he claimed lack of
knowledge. Regarding qua his specimen signatures/handwritings S-408
to S-417 (part of Ex.PW40/Q (colly)), the accused stated that he had no
knowledge about it. He also claimed ignorance regarding remaining
incriminating evidences put to him. He stated that none of the
prosecution witnesses have deposed against him. He also mentioned that
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a false chargesheet had been filed against him because of lack of
understanding and misinterpretation of DCS Act, 1972 and DCS Rules,
1973 which provide the legal framework for governing the affairs of the
cooperative societies in Delhi. He stated that he had passed the revival
order in quasi judicial capacity keeping in view the facts that were
presented/submitted to him by his subordinate staff on record for taking
the said decision. He stated that he had taken all precautions before
passing the revival order. He opted not to lead defence evidence.
17.7 Accused P.N. Manchanda during his examination under Section
313 Cr.P.C. on 12.07.2024 stated that he could not comment upon the
formation of the Society and who was running it as he joined the office
of RCS in the South Zone in March, 2000. He claimed that he had no
personal knowledge about the Society or its office and association
between the private accused persons. He has stated that enrollments of
members and acceptance of resignations are the prerogative of the
Managing Committee of the Society and therefore, no explanation in that
regard could be given by him. According to him, after enrollments and
resignations of members are confirmed by the Managing Committee, the
Managing Committee furnishes the information to the office of RCS and
the same becomes matter of record on the file until and unless it is
disputed by some members of the Society. Further, it has been stated by
him that the list of members along with relevant record are furnished by
the Society along with an undertaking proving the truth and veracity of
the same. Also, he has stated that affidavits and related documents are
always furnished by the Society or its management. He also pleaded
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ignorance about the proceedings of the Society however, qua the
proceedings sought to be proved by Sudarshan Kumari (PW-13), he
stated that they are matter of record. As per him, the documents are
prepared/maintained by the Managing Committee of the Society and
only they can explain any discrepancy. When notings Ex.PW19/A were
put to him he stated that they are matter of record. However, he
explained that he had signed as the Assistant Registrar at Points B as it
was part of his official duty to write notings and give a detailed brief to
the higher authorities. He has claimed that his act had a direct nexus with
the official discharge of duty and therefore, the provision of Section 197
Cr.P.C. is directly attracted in the facts of the present case and has not
been obtained qua him. Also, qua his signatures on Ex.PW19/C to
Ex.PW19/J he has explained the same to be a part of his official duty to
write notes/correspondences and described the position as per record of
the case. He also denied having ever met accused Dev Raj (since
deceased) or his son Sh. Arun Kumar (PW-45). Qua the professional
qualification of the handwriting expert, he has pleaded ignorance.
However, to questions qua examination of documents by the expert,
opinion Ex.PW40/C and reasons Ex.PW40/S, the accused stated them to
be matters of record. He also stated that specimen
signatures/handwritings S-365 to S-391 (part of Ex.PW40/Q (colly))
were matter of record. FIR Ex.PW41/A is stated to be a matter of record.
He stated that sanction for prosecution Ex.PW47/B was a matter of
record. However, the Hon’ble Lieutenant Governor only granted sanction
for prosecution under Section 19 of the PC Act but no sanction for
prosecution under Section 197 of Cr.P.C. had been granted which was
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mandatory as the offences alleged relate to the official discharge of duty
by the accused. As per the accused, none of the witnesses have
implicated him. He stated that the case is false and without any evidence.
He also stated that government auditors had already verified the list of
members, list of enrollments and list of resignations from time to time.
As per the procedure in the office, the Dealing Assistant verified the
entire records submitted by the Society, put up a detailed note in a
meticulous matter and marked the file to him. It has been claimed by the
accused that he complied with the DCS Act, 1972 and DCS Rules, 1973
while preparing notes in File D-3, Vol-I. He also sought immunity under
Section 83 (2) and Section 95 of DCS Act, 1972.
DEFENCE EVIDENCE
18. In order to disprove the allegations, accused Rajesh Kumar Khatri
himself stepped in the witness box as DW1 and examined Sh. Deepak
Jain (Private Handwriting and Finger Print Expert) as DW2. Accused
Rajesh Kumar Khatri (DW-1) relied upon the following documents :
Sl. Name of the Name of Documents Exhibited as
No. witness
1. Rajesh Kumar Application dated Ex. D6/1
Khatri (accused 28.08.2024
no.6) (DW-1)
Vakalatnama dated Ex. D6/2
25.05.2013Resignation letter Mark DW1/A
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Receipt Ex. D6/3
2. Sh. Deepak Jain Report Ex. DW2/A
(DW-2)
40 enlarged photographs Ex. DW2/B
(Colly)
FINAL ARGUMENTS
19. Final arguments on behalf of the State (through CBI) have been
led by Sh. Neel Mani, Ld. Public Prosecutor. Ld. Public Prosecutor for
the State began his arguments by leading the Court through files Ex.
PW19/A (notings) and Ex. PW40/E(colly) (correspondences) pertaining
to the RCS Office to demonstrate the role of the public servants and how
the application for withdrawal of the winding up order Ex. PW19/E was
entertained, processed and allowed in an unusual manner on account of
following reasons:
(a) That the application Ex. PW19/E was directly entertained by
accused R.K. Srivastava who was the Registrar of Co-operative
Societies.
(b) That as per the application applicant / accused Devender Pal Singh
(as the President of the Society) mentioned that it was in December, 1997
that when the Secretary of the Society contacted the RCS Office, he was
informed that the Society had been placed under liquidation vide order
dated 12.02.1992. Yet, the application was itself moved on 10.05.2000.
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Still despite awareness of the liquidation order, proceedings have been
allegedly conducted and yet, the public servants charged herein, were not
vigilant in processing the application as it was a circumstance brought to
their notice which should have raised an alarm qua the genuineness of
the intent of the application.
(c) That even though at page 21/N in file Ex. PW19/A it is recorded
that Sh. Sunil Kumar, Secretary of the Society attended the office of RCS
and submitted list of existing members. However, no list of members
finds reference in letter dated 26.05.2000 (at page 292/C of file Ex.
PW40/E (colly)). Even thereafter, it has been suggested that the list of
members had not been filed as it finds no reference in noting at pages
22/N to 25/N dated 30.05.2000 (of file Ex. PW19/A) and it is only
therefore, that again as per noting dated 31.05.2000 at page 25/N to
27/N, it is again directed that the Society shall produce records related to
resignations / enrollments of members within prescribed period for
approval of the competent authority. Therefore, it has been argued that
while processing the application Ex. PW19/E, list of members was
ignored.
(d) That accused R.K. Srivastava as per noting at pages 33/N to 34/N
mechanically approved the draft order without any hearing, inspection
under Section 54 of The DCS Act to verify the members and without
application of mind issued order dated 29.06.2000 (Ex. PW19/B) despite
carrying out quasi-judicial duties.
20. The Court was led through the testimony of Sh. Ram Chandra
(PW-24) who denied being a member of the Society or to have
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participated in any General Body Meetings of the Society. From his
testimony it was also sought to be demonstrated that Ex. PW12/P
minutes of meeting dated 16.04.2000 of the General Body Meeting,
whereby resolution was passed to apply for withdrawal of liquidation
order, was not attended by the witness. Therefore, it was canvassed that
the minutes of meeting were proved to be fake. Thereafter, drawing the
attention of the Court to the testimonies of Sh. Durgesh Yadav (PW-4),
Sh. Dinesh Kumar Gulati (PW-6), Sh. Anil Kumar Gulati (PW-7), Ms.
Shama (PW-8), Sh. Faqir Chand (PW-9), Smt. Shanti Devi (PW-12), Sh.
Nahar Singh (PW-14), Sh. Daulat Ram (PW-20), Sh. Deepak Bajaj
(PW-23), Sh. Naresh Kumar (PW-32), Sh. Vinod Kumar (PW-33), Sh.
Surender Kumar (PW-34), Ms. Sunita (PW-35) and Sh. Rajesh Yadav
(PW-37), it has been argued that they have denied applications, affidavits
and resignation letters attributed to them and have also denied to have
participated in the meetings of the Society. Also, leading the Court
through the testimonies of Ms. Asha Rani (PW-2), Sh. Vinod Katyal
(PW-3), Sh. Umesh Kumar (PW-5), Sh. Ashok Kumar (PW-10), Sh.
Tejinder (PW-22), Sh. Ram Chandra (PW-24), Ms. Pushpa Sagar
(PW-27), Sh. Tarun Kumar Katyal (PW-29)1, Sh. Ramesh Kumar Jain
(PW-30) and Sh.Yashpal Jain (PW-31), it has been argued that the said
witnesses have proved that despite being genuine members of the
Society, they had never resigned and resignation letters attributed to them
are forged. Further, relying upon the testimony of Smt. Shanti Devi
(PW-12) it has been argued that it is evident that minutes of meeting are
1 During his examination in chief on 28.01.2020, he disclosed his name as Tarun Kumar S/o Sh.
Krishan Lal Katyal
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not genuine and further that no communication was ever received by her
either by the DDA or RCS Office. Therefore, it has been argued that the
prosecution has successfully established that fake members were
introduced in the list of members by creating vacancies through fake
resignations.
21. It has been argued by the Ld. Public Prosecutor for the State
(through CBI) that Sh. Rajesh Aggarwal (PW-1) has testified that around
2000-2001, a representative of accused K.K. Wadhwa had sought office
space at 201, Naamdhari Chamber Earlier, the Society had been
operating from its office from under Defence Colony Flyover. It was
requested that the Court simultaneously refer to minutes of meeting
dated 10.09.2000 of Managing Committee of the Society at pages no. 87-
88 in Ex. PW11/Z6 (proceedings register for the period 15.01.1995 to
10.12.2000) wherein minutes of meeting records that since the
Registered office of the Society was far from the residences of the
members, a location central for all would be preferable. Therefore, it was
unanimously agreed that the change of Registered office to Karol Bagh
would be conducive and hence, a place belonging to the friend of the
President (then accused Devender Pal Singh) was zeroed in and the
office at 201 Namdhari Chamber was selected as the registered office of
the Society and intimation was required to be sent to the RCS Office.
However, no such intimation is on record qua change of address. To
show the roles of accused Devender Pal Singh, accused Sunil Kumar,
accused Ravi Saluja and accused K.K. Wadhwa, the Court was led
through the testimonies of Sh. Rajesh Aggarwal (PW-1) and Sh. Rohit
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Aggarwal (PW-11) through whom prosecution sought to prove that the
account of the Society at Bank of Punjab, Karol Bagh through account
opening form Ex. PW1/A was introduced by Sh. Rajesh Agarwal (PW-1)
who had let out his office to the Society at request of accused K.K.
Wadhwa.
22. The genuineness of minutes of General Body Meeting and
Managing Committee meetings has also been assailed by leading the
Court through the testimonies of Sh. Durgesh Yadav (PW-4), Ms. Shama
(PW-8), Ms. Shanti Devi (PW-12) and Sh. Nahar Singh (PW-14), as they
have denied having attended the said meetings though shown to have
been part of it. Also, it has been canvassed that the genuineness of the
aforementioned proceedings is also doubtful as the witnesses have also
testified that they never received any communication from the Society
even though they have been shown as a participant in the meetings.
23. So far as the public servants are concerned, reliance has been
placed upon Sh. S.G. Mulchandaney (PW-17) and Sh. P.P. Agarwal
(PW47) to show that sanction under Section 19 of The P.C. Act has also
been proved qua them. However, on the aspect of issue raised by accused
P.N. Manchanda regarding dropping of proceedings for want of sanction
under Section 197 Cr.P.C. reliance has been placed upon Prakash Singh
Badal Vs. State of Punjab2, Harihar Prasad Vs. State of Bihar 3,
Kalicharan Mahapatra Vs. State of Orissa4 and State of Kerala Vs.
2 (2007) 1 SCC 1
3 1972 (3) SCC 89
4 AIR 1998 Supreme Court 2595
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Padmanabhan Nair to argue that only if alleged acts are inseparable from
the official decision making, sanction under Section 197 Cr.P.C. is not
mandatory as criminal conspiracy and unlawful conduct has no nexus
with the official act and the official position is merely used as a guise for
carrying out the activities. So far as applicability of Rakesh Bhatnagar
Vs. CBI5 is concerned, it has been differentiated on facts submitting that
Sh. Rakesh Bhatnagar had limited administrative endorsements /
recommendation in the chain of processing the filed without clear
material showing active participation in a pre-designed conspiracy
whereas in the present case accused P.N. Manchanda and accused R.K.
Srivastava are active participants in the chain of approvals. It has been
argued that accused P.N. Manchanda was present in meetings where
forged / false documents were introduced and accused P.N. Manchanda
processed the file despite knowledge for the liquidation status of the
Society. It has been argued that there is direct corroborative evidence of
conspiracy charges against accused P.N. Manchanda.
24. Reliance has been placed upon State of Maharashtra Vs. Sukhdev
Singh6, Kehar Singh Vs. State (Delhi Admin.)7, Baliram Tikaram
Marathe Vs. Emperor8, State through Superintendent of Police, CBI/SIT
Vs. Nalini and Ors.9 and Yashpal Mittal Vs. State of Punjab10 to argue
what constitutes ingredients of conspiracy.
5 2023:DHC:8369
6 (1992) Supreme Court Cases 700
7 1988 (3) SCC 609
8 AIR1945 Nag 1
9 AIR 1999 SC 2640
10 (1977) 4 Supreme Court Cases 540
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25. Dr. Sushil Gupta, Ld. Advocate has argued on behalf of accused
Anil Kumar that the prosecution has relied upon oral testimonies of Sh.
Rajesh Aggarwal (PW-1), Sh. Rohit Aggarwal (PW-11), Sh. Suresh
Kumar (PW-26) and Sh. Arun Kumar (PW-45) documentary evidences
by way of handwriting experts report Ex. PW40/C. So far as the oral
testimonies are concerned, he led the Court through the examination and
cross-examination of Sh. Rajesh Aggarwal (PW1) and submitted that
even though the witness had claimed that accused Anil Kumar had
accompanied accused K.K. Wadhwa when in search of an office for Lok
Priya Vihar CGHS, he could not confirm whether accused Anil Kumar
indeed was a business associate of accused K.K. Wadhwa. Also, it has
been argued that even though the witness was made to identify the
signatures of accused Anil Kumar on the account opening form (Ex.
PW1/A), the account opening form (Ex.PW1/A) per se did not bear the
signature of accused Anil Kumar at all. Therefore, the statement itself is
factually incorrect. Similarly, in the testimony of Sh. Rohit Aggarwal
(PW-11) the relationship between accused K.K. Wadhwa and accused
Anil Kumar is concerned is to be shown to be hearsay as the said
information of Sh. Rohit Aggarwal (PW-11) was premised upon what
was told to him by Sh. Rajesh Aggarwal (PW-1). Thereafter, leading the
Court through the testimony of Sh. Suresh Kumar (PW-26), Ld. Counsel
for the accused submitted that he has referred to one Sh. Anil Kumar in
his testimony however, the said Sh. Anil Kumar features at sl no. 158 of
the list of members and his identity is different from that of the accused.
Therefore, it has been summarized that there is no iota of evidence that
accused Anil Kumar was part of the conspiracy at all. It has also been
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submitted that Sh. Arun Kumar (PW-45) also has turned hostile and has
not supported the case of the prosecution to the effect that accused Anil
Kumar used to visit accused Dev Raj (since deceased).
25.1 Then the Court was led through the handwriting experts report Ex.
PW40/C, testimony of Sh. Sudhir Kant (PW-42) and Sh. V.S. Dagar
(PW-43). Reliance was placed upon State of Rajasthan Vs. Dr. J.P.
Sharma11 to submit that it has first to be established that sample
handwriting and signature were that of accused Anil Kumar so as to
appreciate the FSL report Ex. PW40/C. However, both Sh. Sudhir Kant
(PW-42) and Sh. V.S. Dagar (PW-43) have failed to prove the identity of
accused Anil Kumar. So far as Sh. Sudhir Kant (PW-42) is concerned, he
has deposed as under :
” … I cannot identify any of the person whose specimen
handwritings / signatures were taken. …
… I was not introduced by the persons whose handwritings /
signatures were taken. …”
and Sh. V.S. Dagar (PW-43) has also deposed as under :
“… I was not shown ID proofs of those persons. I cannot identify
them. …”
25.2 Hence, that credible material had entered into consideration of the
FSL expert could not be established by the prosecution. The second
ground to discard the report of the handwriting expert has been premised
upon the following grounds:
(a) That the testimony of Sh. B.P. Mishra (PW-40) shows that there is
a discrepancy on the case number which is DX46/7 (as assigned by11 Cril. L.J 858 decided on 01.03.1982 by Rajasthan High Court
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GEQD) and the endorsements which documents in D-15. D-15 on the
top mentions the case number as DX46/2007 but the stamping on the
documents examined from Q-1 to Q-220 mention DX 47/07. On being
confronted with the same, no reasonable explanation could be furnished
by Sh. B.P. Mishra (PW-40) who also deposed that the numbers were
probably given by Ms. K.B. Jaina (who also examined the documents).
However, Ms. K.B. Jaina has not been examined before the Court.
(b) That there is no reason for opinion at para no. 9 of CFSL report
Ex. PW40/C.
(c) That the contents of the report in para no 2 also therefore, assumes
importance as the identity of Q-1 to Q-220 is shrouded in doubt as
already mentioned above.
(d) That the report has not furnished any material to this Court to form
an independent view and it appears that handwriting expert has acted as
the adjudicatory authority, himself.
(e) Relying upon Amarjit Singh Vs. State of UP12, it has also been
submitted that the reasons have been proved to be subsequently prepared
without the originals at the disposal of the expert on the basis of rough
notes. However, the rough notes are not part of the judicial record
enabling the Court to appreciate the evidentiary value of the reasons.
26. On behalf of accused R.K. Srivastava, Ld. Counsel Dr. Sushil
Kumar Gupta has led the arguments. The crux of the arguments is as
under:
(a) Legal submissions: 12 (1998) 8 Supreme Court Cases 613 CBI vs K.K. Wadhwa & Ors. Criminal Case No. 23/19 ID No. 181/2019 FIR No. 11(S)/2006/CBI/SCB-II/ND page no 85 of 224 (i) It has been canvassed that Law Commission and the Parliamentary
Committee Report, 2018 explicitly reported that Section 13(1)(d)(iii) was
being misused to target honest officers for administrative lapses when no
corrupt intent existed. Hence, by deleting the same, the Legislature has
arguably “de-crimininalized” conduct that lacks mens rea. There has a
been a paradigm shift from strict liability (as interpreted in Runu Ghosh
vs CBI13) to intent based culpability. Now, after deletion of Section 13(1)
(d)(iii), all other misconduct requires a corrupt intent. Therefore, it has
been urged that even for offence committed prior to 2018, the
prosecution must show “modern” understanding of corruption and a
conviction based merely on “lack of public interest” without any proof of
corrupt bargain or dishonest intention cannot be sustained as it is a
settled principle of Beneficial Retrospectivity that where the Legislature
de-criminalizes and aspect of conduct, the benefit must be extended to
the accused. Thereafter, it has been adumbrated that the prosecution has
failed to establish any illegal gratification, pecuniary gain, personal
benefit, undue advantage, criminal intent, dishonest motive, abuse of
position for gain. It has been argued that the investigation is silent upon
criminal intent of the accused. At best, the procedural deviations or errors
in judgment of the accused are administrative lapses. To fasten
culpability for administrative lapses would stifle independent decision
making.
(ii) It has been argued that for want of sanction under Section 197
Cr.P.C., as well, the cognizance was bad. He has submitted that the
13 Crl. A. 482/2002 decided on 21.12.2011 by High Court of Delhi
CBI vs K.K. Wadhwa & Ors.
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requirement for applicability of sanction under Section 197 Cr.P.C. is that
if the alleged act was not performed by the accused, it would amount to
dereliction of duty. Therefore, as it was incumbent upon the accused to
consider the application for revival of the Society, there is a clear co-
relation between his alleged acts and official duties. Therefore, it was
mandatory for the prosecution to have obtained sanction under Section
197 Cr.P.C. to prosecute the accused for offences punishable under IPC.
Additionally, relying upon N.K. Ganguly Vs. Central Bureau of
Investigation, New Delhi14, it has also been submitted that sanction under
Section 19 of The P.C. Act would not suffice for the sanction mandated
under Section 197 Cr.P.C. Ld. Counsel has relied upon State of M.P. Vs.
Sheetala Sahai and Ors. (Supra)15, A. Srinivasulu Vs. State of Tamil
Nadu16, A. Sreenivasa Reddy Vs Rakesh Sharma & Anr.17 Rakesh
Bhatnagar Vs. CBI18 and Krishan Kumar Vs. CBI19 to bolster his
submission that absence of sanction under Section 197 Cr.P.C. is fatal to
the case of the prosecution. Here, Ld. Counsel for the accused has also
sought parity with Sh. Krishan Kumar who was a co-accused but was
discharged by the Delhi High Court vide order dated 21.08.2024 in Crl.
M.C. no.3481/18.
(b) On Facts:
(i) As regard the charge for conspiracy, it has been argued that the
14 Criminal Appeal no. 798/2015 decided on 19.11.2025 by Supreme Court of India
15 2009 8 SCC 617
16 (2023) 13 SCC 705
17 (2023) 8 SCC 711
18 2323 SCC OnLine Del 7440
19 Crl. M.C. 3481/2018 decided by High Court of DelhiCBI vs K.K. Wadhwa & Ors.
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acts alleged against the accused were performed in discharge of his
official duty. There is no iota of direct or circumstantial evidence brought
on record by the prosecution whereby, it can be opined that accused R.K.
Srivastava had discharged his official duties in pursuance to the alleged
conspiracy. The prosecution has not led any evidence to show that
accused R.K. Srivastava ever met or contacted any of the co-
conspirators. Also, as the Dy. Registrar and the Dealing Assistant have
not been made an accused and as the Joint Registrar has now been
discharged, the chain of circumstantial evidence cannot be said to be
complete to establish alleged conspiracy.
(ii) It has been submitted that at Q-1159 in Ex. PW19/E (application
for revival of the Society), accused R.K. Srivastava had merely sought
examination and if he had not acted on the request, he would be
abdicating his duties. It has been further argued that the accused did not
initiate anything but merely acted as expected when he received the
application and to read malafide intention into it, it reflects that the
investigation has started with a prejudice.
27. Sh. R.P. Shukla, Ld. Counsel for accused P.N. Manchanda has
argued that accused P.N. Manchanda officiated as Assistant Registrar
(South) at the RCS Office from 07.01.2000 to 21.09.2000. Thereafter, he
was transferred to the North West Zone w.e.f. 21.09.2000. His
appointment as per Section 3 of the Act was with the purpose of assisting
the Registrar of Co-operative Societies and while so acting as per Section
3(3), he was to exercise his powers subject to the general guidance,
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superintendence and control of the Registrar and it has not been
demonstrated by the prosecution whether the accused had done anything
beyond his jurisdiction while acting as the Assistant Registrar or did any
illegal act as defined under Section 43 of the IPC. Thereafter, attention of
the Court was drawn to Section 95 of the Act whereby, it has been
provided as under :
“95. Indemnity :
– 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.”
27.1 The Court was meticulously led through the notings in file Ex.
PW19/A to urge the following:
(a) That as an Assistant Registrar, the accused merely was acting as
post office and at no instance recommended any approval qua the
authenticity of the documents. It has been argued that as Assistant
Registrar (South) it was not within his authority to examine, verify or
approve the authenticity of the documents. According to the Ld. Counsel
for the accused, senior officials like Dy Registrar and Joint Registrar
were supposed to approve the verification conducted by the dealing hand
who primarily deal with the documents provided by the Society and
relied upon by the Registrar.
(b) That the Dealing Assistant initiated the notings and obtained the
documents from the Society to verify the same which were then
approved by the Dy. Registrar, Joint Registrar and then placed before the
Registrar. However, neither the Dealing Assistant nor the DeputyCBI vs K.K. Wadhwa & Ors.
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Registrar were arraigned as accused in the present case. However, Joint
Registrar Sh. Krishan Kumar who had been chargesheeted for offence
punishable under Section 120B readwith 420/467/468/471 IPC readwith
Section 13(2) redwith 13(1)(d) of The P.C. Act had been discharged by
the Delhi High Court vide order dated 21.08.2024 in Crl. M.C.
no.3481/18 affording him the benefit of want of sanction for prosecution
under Section 197 Cr.P.C. and therefore, the chain of alleged conspiracy
was not complete. Further, relying upon Indra Devi Vs. State of
Rajasthan20, it has also been submitted that accused P.N. Manchanda is
entitled to be granted parity with co-accused Krishan Kumar for want of
sanction for prosecution under Section 197 Cr.P.C and therefore, the
cognizance taken for offence punishable under Section 120B read with
420,467/468,471 IPC and Section 13(2) readwith 13(1)(d) of The P.C.
Act is bad in law. It has been submitted that the act of the accused was in
discharge of his duty can also be gathered from the fact that he had no
discretion while dealing with the file Ex. PW19/A and therefore,
whatever he did was in discharge of his official duty.
(c) Relying upon Thalappalam Service Cooperative Bank Limited and
Others Vs. State of Kerala and Others21, it has also been adumbrated that
Registrars of the Co-operative Societies merely exercises supervisory,
regulatory and indirect control over the co-operative societies and the
actual persuasive control of the management of the Society rests with the
Managing Committee of the Society. Thus, it has been suggested that
20 Criminal Appeal No. 593/2021 (Arising out of SLP (Crl.) No. 1605/2018) decided by Supreme
Court of India on 23.07.2021
21 (2013) 16 Supreme Court Cases 82
CBI vs K.K. Wadhwa & Ors.
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since the private management of the co-operative Society would have the
final authority and not the RCS.
(d) That there is no illegality in the file Ex. PW19/A whereby the
winding up order has been cancelled as liquidation process was not
initiated despite lapse of more than a year and there is nothing on record
that limitation period was extended. Thereafter, relying upon Vikas Co-
operative Group Housing Society Ltd. Vs. Registrar Co-operative
Societies & Others22, it has been submitted that the liquidation
proceedings stood terminated on lapse of the statutory period and there
was no bar in the Society continuing its activities.
27.2 So far as the allegation of conspiracy is concerned, it has also been
argued that not only the chain of the circumstantial evidence is
incomplete, but there is no evidence to show that the accused had any
personal interaction with the Assistant Registrar. It has been submitted
that none of the members of the Managing Committee of the Society
ever appealed before the AR (South) either to produce any document
relating to the Society or for their scrutiny and verification. It has been
argued that even if some members of the Managing Committee appeared
before the AR at any point of time, that could have been a casual meeting
as no constructive decision can be taken by the accused as he was not
empowered to do so under The DCS Act. So far as the query of the RCS
at page no. 45/N in Ex. PW19/A is concerned, it is stated that it has been
observed by the Joint Registrar (now stands discharged) vide note dated
12.09.2000 “that the enrollment and resignations are in the competency
22 Civil Writ Petition no. 1767/1986 decided by Delhi High Court on 21.11.1986
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of the Management Committee” and once the Society has been revived
and its Managing Committee in fresh resolution dated 23.07.2000 (Ex.
PW1/Z-6) has resolved to rectify the resignations and enrollments, there
is no legal hitch as it is the incompetence of the present Management
Committee. Reference has also been made to Section 28 of The DCS
Act, 1972, to urge that the decision of the Management Committee is
ultimate and cannot be questioned by any authority including the
Registrar. The only remedy against such decision, if contrary to law can
be challenged before Co-operative Societies Tribunal or the Arbitrator or
Financial Commissioner or through a Writ Petition before The Delhi
High Court.
27.3 Additionally, it has also been submitted that it is within the
jurisdiction of the auditor to authenticate the list of members which in
this case was Sh. H.C. Kadam, but he has neither been examined as a
witness nor arrayed as an accused. Since the issue of membership and
approval of list by an approver is an important legal task, the allegation
of conspiracy cannot be established as the chain of conspiracy would
break here.
27.4 Further, it has also been submitted that the bonafide the acts of
cancellation of winding up order are also reflected from the fact that the
certificate of authenticity Ex. PW41/5(colly) was also obtained from the
office bearers of the Society which was verified by the Dealing Assistant
before being signed by the accused. During the course of arguments, it
has also been repeatedly submitted that the accused as an AR who had
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worked in other departments wasn’t fully aware of the functioning of the
RCS Office and had also not undergone any training.
27.5 Relying upon C. Surender Nath Vs. State of Kerala23, it has also
been adumbrated that dishonest intention is sine qua non to attract
conviction for offence punishable under Section 13(1)(d) of The P.C. Act
and mere action contrary to rules and departmental norms cannot amount
to criminal misconduct. There is no quid pro quo also established against
the accused.
27.6 The validity of sanction under Section 19 of The P.C. Act has also
been questioned stating that the appointing authority for the accused is
the Hon’ble Lt. Governor of NCT of Delhi whereas the sanction order
(Ex. PW47/B) had been issued by Sh. V.K.S. Chauhan, Additional
Secretary, who was not the competent authority to remove the accused
from service. Hence, it has been submitted that the accused should be
acquitted of the offences charged with. Reliance has been placed upon
the following judgments :
(i) A. Srinivasulu Vs. State Rep. by the Inspector of Police24
(ii) N.K. Ganguly Vs. CBI (Supra)
(iii) P.L. Pradhan Vs. State of Sikkim represented by the Central
Bureau of Investigation25
(iv) Amod Kumar Kanth Vs. Association of Victim of Uphaar Tragedy
and Anr.26
(v) Indra Devi Vs. State of Rajasthan27
23 2024 SCC Online Kerala 210
24 Criminal Appeal no. 2417 of 2010 decided on 15.06.2023 by Supreme Court of India
25 Criminal Appeal no. 1118/2000 decided on 24.07.2001 by Supreme Court of India
26 Criminal Appeal no. 1359/2017 decided on 20.04.2023 by Supreme Court of India
27 Criminal Appeal No. 593/2021 (Arising out of SLP (Crl.) no. 1605/2018) decided on 23.07.2021
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(vi) Rakesh Bhatnagar Vs. CBI (Supra)
(viii) Paul Varghese Vs. State of Kerala29
(ix) Devinder Singh & Ors. Vs. State of Punjab Through CBI30
27.7 It has also been submitted that the accused as the AR was bound
by the directions of his superiors and had no choice of action. For
example : Attention of the Court has been drawn to application for
cancellation of the winding up order (Ex. PW19/E) to show that as per
the endorsements dated 10.05.2000, the accused had no option but to call
for the record as he was bound by the instructions issued to him by his
superiors. It has been stated that he could not have exercised any
discretion to not summon the records and therefore, the allegation in the
chargesheet (page-12) is incorrect.
28. On behalf of accused Rajesh Kumar Khatri written submissions
have been filed through counsel Sh. Sudesh Kumar and Sh. Vijay Kumar
Babbar. As per the same, it is submitted that the allegations against
accused Rajesh Kumar Khatri have not been proved broadly on the
following grounds:
(a) Drawing the attention of the Court to the testimony of Smt.
Sudarshan Kumari (PW-13), it has been sought to be demonstrated that
she has denied that she had not attended the meetings dated 12.09.1994
(Ex. PW13/Z13), 31.07.1994 and 19.09.1994 (Ex.PW13/D1). She alsoby Supreme Court of India
28 Crl. MC 3481/2018, Crl. MA 12633/2018, Crl. MA 13566/2023 decided by Delhi High Court on
21.08.2024
29 AIR 2007 Supreme Court 2618
30 Criminal Appeal No. 190/2003 decided on 25.04.2016 by Supreme Court of India
CBI vs K.K. Wadhwa & Ors.
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deposed that the proceedings were written by friend of her brother
accused Dev Raj (since deceased). Thus, it has been submitted that the
fake proceedings attributed to accused Rajesh Kumar Khatri have been
proved to not have been written by him. Through her testimony, it has
also been sought to be shown that even qua entries no. 129 to 134 the
Membership Register Ex. PW10/A (D-12) she has pleaded ignorance as
to who made those entries but testified that they were made in her
presence and not by accused Rajesh Kumar Khatri.
(b) Then, attention of the Court has been drawn to cross-examination
of Ms. Madhu (PW-38) who also deposed that she had attended meeting
of the Society dated 31.07.1994 (Ex.PW13/D1) which was signed by her
at sl no.2 of the attendees. However, she deposed that the minutes of the
meeting were not written by the accused Rajesh Kumar Khatri but by a
friend of accused Dev Raj (since deceased). She has taken a similar stand
qua minutes of meeting dated 12.09.1994 (Ex. Ex. PW13/Z13).
Referring to examination of PW-45 Sh. Arun Kumar (brother of
accused), it has been argued that the said witness has disproved the
allegation that entries from sl. no. 129 to sl. no. 135 were made by
accused Rajesh Kumar Khatri and also that GBM meeting dated
31.07.1994 (Ex.PW13/D1) and 12.09.1994 (Ex.PW13/Z13) were written
by accused Rajesh Kumar Khatri. The said witness also has denied that
accused Rajesh Kumar Khatri had got any resignations from the
members of the Society by misleading them. Hence, relying upon the
aforementioned 03 witnesses, it has been argued that the allegations of
the prosecution that backdated minutes of meeting dated 12.09.1994
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(Ex.PW13/Z13) and 31.07.1994 were written by accused Rajesh Kumar
Khatri has not been proved.
(c) A comparative analysis has been sought to be made qua the GEQD
report Ex.PW40/C and the report submitted by Sh. Deepak Jain (DW-2)
Ex. DW2/A to challenge the GEQD report it has been argued that the
said report cannot be acted upon as (a) the handwriting expert lacked
qualifications to be an expert as proved through the cross-examination
conducted by Ld. Counsel for accused Rajesh Kumar Khatri (b) his
report is silent on the tools which had been used for conducting the
examination as evidenced by cross-examination conducted by Ld.
Counsel for accused Ravi Saluja.
(d) The identity of the specimen writings of accused Rajesh Kumar
Khatri has not been established during trial to buttress the claim the Ld.
Counsel for the accused has relied upon the examination of Sh. Richhpal
Singh (PW-41) to argue that even though the specimen writings S-290 to
S-312 have all been taken on one single date i.e. on 03.11.2006, the IO
deposed that he could not tell as to how many days were consumed in the
process of taking specimen writings and could have taken 3 to 4 days.
Thereafter, relying upon the testimony of Sh. Sudhir Kant (PW-42), it
has been contended that the said witness in whose presence the specimen
writings of accused Sunil Kumar, accused Anil Kumar, accused Rajesh
Kumar Khatri, accused K.K. Wadhwa and accused Ravi Saluja. He
could not identify the said accused persons and he has also testified that
when the said samples / signatures were obtained from the
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aforementioned accused persons, they were neither introduced nor their
identities were confirmed before the witness. Per contra, referring to the
report submitted by Sh. Deepak Jain (DW-2), it has been submitted that
the said witness has opined that Q-222 (part of minutes of meeting dated
31.03.1990 at page no. 52 of Proceedings Register Ex. PW10B), Q-261
(Ex. PW13/D1 i.e minutes of meeting dated 31.07.1994), Q-262-Q263
(Ex.PW13/Z13 i.e. minutes of meeting dated 12.09.1994 of Proceedings
Register Ex. PW10B), Q-272 to Q-274 (particulars of M no. 130 in the
name of Sh. Rajesh Jaggi dated 31.07.1994, M no. 131 in the name of
Sh. Arun Kumar dated 31.07.1994 and M no. 132 in the name of Sh.
Ashish Sahni), Q-276 (M no. 133 in the name of Sh. Rajinder Kumar
dated 31.07.1994), Q-278 (M no. 134 in the name of Ms. Meenakshi
Fialok dated 31.07.1994), Q-280 (M no. 135 in the name of Sh. Rajesh
Lamba dated 31.07.1994), Q-1380 (particulars of applicant Sh. Rajesh
Jaggi in application dated 23.06.1994 (Ex. PW21/B)) and Q-1382
(particulars of the accused Rajesh Kumar Khatri in his application dated
23.06.1994 (Ex. PW21/B)) were not written by accused Rajesh Kumar
Khatri.
(e) It has also been argued that against accused Rajesh Kumar Khatri,
no evidence has been brought on record of how all essentials section 420
IPC are meted out. It has been submitted that there is material on record
to show that even though liquidator was directed to be appointed on
25.07.1995, no liquidation proceedings ever took place and from the
examination of Sh. Richhpal Singh (PW-41), it is also confirmed that no
records were seized by the liquidator. Rather, the official records of the
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Society continued to remain with the Managing Committee which was
working and auditor Sh. H.C. Kadam also continued to perform his
duties as per rules and guidelines and therefore, the Society never
became defunct. Relying upon the testimony of Sh. Richhpal Singh
(PW-41) that Sh. HC Kadam, Auditor was not chargesheeted as no
malafide or lapse on his part was found. Further, it has been argued that
no ownership of land was transferred to the Society or any benefits were
proved to have been derived by accused Rajesh Kumar Khatri to make
out an offence under Section 420 IPC.
29. As regards the allegation of conspiracy, relying upon Gulam
Sarver Vs. State of Bihar31, it has submitted that the prosecution has not
led any credible evidence to show that there was any prior meeting of
minor accused Rajesh Kumar Khatri with the remaining accused persons
to commit the alleged offences.
30. On behalf of accused Ravi Saluja written submissions have been
filed by Sh. Rajiv Tehlan, Ld. Advocate. It has been advocated on his
behalf that the evidence brought on record by the prosecution is marred
by serious contradictions and is substantially based on hearsay evidence,
not supported by any credible documentary or independent corroborative
evidence thus, making the case of the prosecution inherently weak,
doubtful and incapable of meeting the standards of proof beyond
reasonable doubt which is sine qua non for rendering conviction against
accused Ravi Saluja. Thereafter, drawing the attention of the Court to
31 (2014) 3 Supreme Court Cases 401
CBI vs K.K. Wadhwa & Ors.
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witnesses Sh. Rajesh Aggarwal (PW-1), Sh.Rohit Aggarwal (PW-11), Sh.
B.P. Mishra (PW40) and Sh. Richhpal Singh (PW41) who are deemed to
be relevant qua allegations made against accused Ravi Saluja, the
evidence of the prosecution has been dissected as under:
(a) Testimony of Sh. Rajesh Aggarwal (PW-1) – It has been contended
that the witness has turned hostile and has made contradictory statements
therefore, his testimony has been rendered unbelievable. It has been
stated that during cross examination, the witness claimed that he had not
seen accused Sunil Kumar, accused Devender Pal Singh, accused Ravi
Saluja sign the account opening form in his presence and that the account
opening form might bear the signature of the office bearers.
(b) Testimony of Sh. Rohit Aggarwal (PW-11) – Yet again it has been
argued that the said witness did not support the case of the prosecution
and from his deposition nothing has emerged which connects accused
Ravi Saluja to the offences he has been charged with. Leading the Court
through his examination, it has been argued that the said witness was
ignorant about the earlier Executive Committee of which allegedly
accused Ravi Saluja was the Treasurer and he was also unable to identify
the sign of accused Ravi Saluja on the proceedings register. Thus, it has
been submitted that the witness admitted lack of knowledge regarding
the affairs and composition of the earlier Executive Committee. He was
unable to identify the signature of accused persons in the proceedings
register which renders his testimony of no evidentiary worth.
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(c) Testimony of Sh. B.P. Mishra (Handwriting Expert) (PW-40) –
Ld. Counsel for accused has submitted that the testimony of the
handwriting expert does not inspire confidence due to the following
reasons :
(i) The witness has failed to establish any credible or scientifically
reliable link between the accused and the alleged questioned documents.
(ii) During cross-examination Sh. B.P. Mishra (PW-40) has admitted
that reasons Ex. PW40/S for his opinion (Ex. PW40/C) was prepared by
him only after his retirement in May 2021 and upon receipt of summons
of the Court. At that time, he has not contemporaneously examined the
documents. He then did not had access to the original documents and
merely relied upon rough notes and photographs which are not part of
judicial record.
(iii) From his examination, it has also emerged that a different case
number i.e. DXC-47/07 was assigned to certain documents examined by
him whereas the present case is DXC-46/07 and no reasonable
explanation was given for the said discrepancy. Thus, it has been
adumbrated that in the light of admitted procedural lapses and absence of
contemporaneous reasoning, the opinion given by the witness is
fundamentally flawed. His reliance on secondary material not forming
part of record, coupled with unexplained discrepancy in numbering of
the case, raises serious doubts about the integrity of the examination
itself. Also, the lack of scientific methodology and demonstrative
analysis, the opinion expressed by the expert lacks evidentiary weight.
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That report is also not admissible as Certificate under Section 65B of The
Indian Evidence Act was not filed alongwith it.
30.1 Reliance has been placed on Murari Lal Vs. State of Madhya
Pradesh32 it has been argued that law relating to evidentiary value of
opinion of an expert under Section 45 of The Indian Evidence Act,
cannot be treated as conclusive or infallible. An expert merely assists the
Court by providing scientific criteria for evaluation, but the final
determination of facts and conclusions rests solely upon the Court. The
Court is not bound to accept the opinion mechanically and it must be
tested upon the touchstone of its reasoning, methodology and overall
evidentiary consistency. It has been submitted that handwriting analysis
is not infallible. The Court has to examine whether the expert has given
clear reasons in support of his opinion and whether such opinion
withstands scrutiny when tested against other material brought on record.
Reference has thereafter been made to the report of DW1 whose view is
contrary to that of PW40.
(d) Testimony of Sh. Richhpal Singh (PW-41) – Through his
testimony, Ld. Counsel for the accused has tried to demonstrate that
specimen writings attributed to accused Ravi Saluja have not been
proved to have been obtained by him. It has been submitted that Sh.
Richhpal Singh (PW-41) did not remember how many pages, date time
and duration of the specimen signatures of accused Ravi Saluja. His
uncertainty and failure to record credible details concerning the
32 (1980) 1 SCC 704
CBI vs K.K. Wadhwa & Ors.
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obtainment of specimen handwritings of accused Ravi Saluja creates a
serious lacuna in prosecution’s case.
30.2 Thereafter, legal objections have been taken of insufficiency of
evidence to establish conspiracy punishable under Section 120 B IPC.
Reliance has been placed upon Ram Narayan Popli Vs. CBI33, CBI Vs.
Srichand & Ors. and Rakesh Kumar & Ors. Vs. State34 to urge that the
very foundation of an offence under Section 120B IPC lies in the
existence of an agreement between two or more persons to commit an
illegal act or to achieve lawful object by illegal means. Such agreement –
whether express or implied must be established through cogent, reliable
and admissible evidence. Mere suspicion, proximity, association or
knowledge of events does not satisfy the legal threshold required to bring
home the culpability of the accused. Admitting that conspiracy is often
hatched in secrecy and may be proved through circumstantial evidence.
Relying upon Sharad Birdhichand Sarda vs. State of Maharashtra35,
Hanumant Govind Nargundkar Vs. State of M.P.36 and C. Chenga Reddy
Vs. State of A.P.37 it has been argued that the chain of circumstances
must be complete excluding every hypothesis except guilt of the accused.
Relying upon Ramesh Bhai and Anr. Vs. State of Rajasthan38 and State of
U.P. Vs. Ashok Kumar Srivastava39, it has been submitted that when a
33 AIR 2003, SC 2748
34 2009 (163) DLT 658
35 1984 AIR 1622
36 Criminal Appeal No. 56 o 1951 with No. 57 of 1951 decided on 23.09.1952 by Supreme Court of
India
37 (1996) 10 SCC 193
38 (2009) 12 Supreme Court Cases 603
39 1992 Crl. LJ 1104
CBI vs K.K. Wadhwa & Ors.
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case rests on circumstantial evidence the burden lies heavily upon the
prosecution to establish each incriminating circumstance beyond
reasonable doubt and the cumulative effect of such circumstances must
be incompatible with the innocence of the accused. It has been submitted
that where two view are possible, the one favouring the accused must be
adopted.
30.3 It has also been argued that principles governing conspiracy make
it abundantly clear that the essence of the offence is not the mere
commission of illegal acts, but the existence of prior agreement to
commit such acts. While it is not necessary that every conspirator must
play an active role or know all details of the conspiracy, there has to be
convincing evidence that clearly shows that the accused was a willing
and conscious participant in the unlawful design. In absence thereof,
inference of conspiracy is not sustainable. Reverting to the present
matter, it has been argued that there is no evidence – direct or
circumstantial demonstrating any agreement of mind between accused
Ravi Saluja and the co-accused persons. The material brought on record
falls short of proving any concerted action, prior arrangement or conduct
indicating participation in the alleged conspiracy. Rather, it has been
submitted that material placed on record is fragmented, inconclusive and
riddled with inconsistencies. Therefore, the essential ingredients of
criminal conspiracy remained unproved.
31. Final arguments of behalf of accused Sunil Kumar and accused
Devender Pal Singh have been led by Ld. Counsel Sh. Vijay Bishnoi. It
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has been argued on behalf of accused Devender Pal Singh that the role
attributed to him is of having signed the documents on behalf of the
CGHS as its president. However, doubt has been raised on the identity of
the accused by drawing the attention of the Court to page no. 22/N (of
file Ex. PW19/A) where the notings record that application has been
moved by one Sh. D.P. Pappu. However, it has been submitted that no
investigation has been conducted to connect the identity of Sh. D.P.
Pappu with that of accused Devender Pal Singh. Therefore, it has been
adumbrated that chances of false implication cannot be ruled out.
Thereafter, leading the Court through the records, it has been submitted
that there is no clarity as to how the purported specimen handwriting of
the accused Devender Pal Singh were brought on record. Attention of
the Court has been drawn to application dated 25.04.2013 wherein, there
is no reference of the specimen writings of accused Devender Pal Singh.
Thereafter, leading the Court through the examination of Sh. Richhpal
Singh (PW-41), it has also been submitted that the said witness could not
prove that the specimen writings attributed to accused Devender Pal
Singh were indeed his. Be that as it may, drawing the attention of the
Court to the handwriting experts report it has also been submitted that
the said report is not incriminatory qua accused Devender Pal Singh.
Further, alluding to the arguments led by Dr. Sushil Gupta, it has yet
again been emphasized that the report of Sh. B.P. Mishra (PW-40) cannot
be acted upon. Also, it has been submitted that the account opening form
which was shown to PW1 for identification signature of accused
Devender Pal Singh as well as accused Sunil Kumar, it can be gathered
that the same is a photocopy. It has been submitted that the witness also
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admitted during cross-examination that he can only depose qua the
signatures as the document is suggestive of the positions being held by
the signatories. Further, it has also been argued that none from the bank
has been examined to prove the account opening form. Further, the
prosecution has failed to lead convincing evidence to attribute the role to
accused Devender Pal Singh as the President of the CGHS.
31.1 The credibility of testimony of PW1 has also been challenged
stating that he is an accused in at least 4-5 CGHS scam matters and
therefore, the Court cannot deny the fact that such a witness is a tainted
witness and could have deposed under duress. As regards the offence of
conspiracy, it has been argued that the prosecution cannot attribute
inconsistencies in the documents which are prior to when the accused
persons allegedly took charge of the Managing Committee of the CGHS.
It was not possible for them to confirm the veracity of the documents
brought on record prior to them having taken charge of the Society. It has
not been shown that there were any such circumstances upon which
knowledge of inconsistencies can be attributed to accused Devender Pal
Singh or Sunil Kumar. In fact, none of the prosecution witnesses have
deposed on any facts which incriminate accused Devender Pal Singh or
accused Sunil Kumar to the alleged conspiracy.
31.2 Ld. Counsel for the accused persons has also condemned the
investigation to be perfunctory and biased. It has also been submitted
that specimen signatures / writings were taken by the Investigating
Officer during investigation. However, no permission from the
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concerned Magistrate / Special Judge was obtained before taking the
specimen writing. Reliance has been placed upon Sapan Haldar Vs.
State40. Also, the IO has not given any explanation as to why the
admitted writings of the contemporaneous periods were not procured
during investigation which was the best piece of evidence for
comparison of the questioned documents attributed to the accused
persons.
31.3 Further, it has been submitted that the examination of Sh.
Ravinder Choudhary (PW-48) elicits responses from the said witness
which shows that Sh. Rajesh Aggarwal (PW-1) played a prominent role
in the affairs of the Society. It was PW1 who had introduced Sh.
Ravinder Choudhary (PW-48) as an architect to the Society. However,
Sh. Rajesh Aggarwal (PW-1) has been chosen to be a witness instead of
an accused and not much credibility can be attached to what he has
deposed before the Court. Similarly, Smt. Shanti Devi (PW-12) has given
evasive answers in her examination in chief and despite admitting her
membership denied signatures in minutes of meetings of the year 1999,
however, the Investigating Officer did not investigate the matter property
by sending her signatures for analysis, as well. Further, it has been
submitted that the Investigating Officers also chose not to chargesheet
the auditor Sh. H.C. Kadam as it is stated that they did not find anything
incriminatory qua him. However, this breaks the chain of conspiracy as it
is the auditor who is responsible for ensuring that the compliances were
made as per Bye-laws and the Act and Rules. Thus, it has been submitted
40 Crl. Appeal No. 804/2001 decided on 11.08.2011 by Delhi High Court.
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that the prosecution has miserably failed to establish its allegations
against accused Devender Pal Singh and accused Sunil Kumar beyond
reasonable doubt and they should therefore, acquitted of the offences
charge with.
ANALYSIS, APPRECIATION OF EVIDENCE AND REASONS
32. Now as the Court proceeds to appreciate the evidence adduced to
prove the charges framed against the accused persons, it deems it
expedient and facilitatory to recapitulate the acts attributed to the accused
persons, step by step.
32.1 The genesis of the allegations against the accused persons is filing
of application for revival of the Society and verification and final list of
members under the signature of accused Devender Pal Singh as the
President of the Society. The said application was directly filed before
accused R.K. Srivastava on 10.05.2000. The said letter is at page no.
255/C to 256/C (Ex. PW19/E) and accused R.K.Srivastava directed for
its examination and verification. Thereafter, JR (South) i.e. Sh. Krishan
Kumar (since discharged) directed for the application to be placed on file
and call for records from the Society for verification. Pursuant thereto,
the said application was put up before AR (South) accused P.N.
Manchanda and then marked to the Dealing Assistant by him mentioning
“urgent”.
32.2 As per noting at page 18/N dated 10.05.2000, diary no. 366/AR(s)
CBI vs K.K. Wadhwa & Ors.
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was assigned to the said letter. It was recorded that in view of the facts
and remarks of JR(S) i.e. Sh. Krishan Kumar (since discharged), records
of the Society be called for verification. Accused PK Manchanda
thereupon as per noting dated 15.05.2000 at pages 19/N-20/N opined
“but from the letter of the society it is evident that records are still with
the society. So we may call the records of the society for verification held
on 16.04.2000”. The said proposal was approved by DR (South), JR
(South) and finally by accused R.K. Srivastava and letter dated
22.05.2000 (Ex. PW19/D) was issued to the President / Secretary of the
society requiring production of the following documents :
“1. Proceeding register
2. Membership Register
3. Documents of the last election held
4. Accounts statement for the year under which the society was under
liquidation
5. All the documents of the General Body meeting held on 16.04.2000
6. Any other relevant records pertaining to above subject.”
32.3 Subsequently, on 26.05.2000 (as per page 21/N of file Ex.
PW19/A), accused Sunil Kumar in the capacity of the Secretary of the
Society produced the following documents:
“1. Photocopy of GBM held on 16.4.2000.
2. Photocopy of M.C resolution approving agenda
3. Service proof of agenda notice
4. Photocopy of proceeding of last election held on 22.8.99.
5. Photocopy of M.C resolution approving agenda
6. Service proof of Agenda notice.
7. Accounts statements for 1991 to 2000.”
32.4 Then, he was also requested to furnish the list of the existing
members. On 29.05.2000, accused Sunil Kumar, Secretary of the Society
attended the office and submitted the list of existing members as per
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noting at page 21/N of Dealing Assistant. Accordingly, the Dealing
Assistant prepared noting dated 30.05.2000 (page 22/N to 25/N)
proposing withdrawal of winding up order. Upon the same, on
31.05.2000 from pages 25/N to 27/N, accused P.N. Manchanda as AR
(South) recommended exercise of power under Section 63(3) of DCS Act
for cancelling of winding up order dated 12.02.1992 subject to
conditions which are as under:
“… 1. Elections of the society to be conducted in due course of
time i.e within the prescribed period.
2. Pending audits are completed within 3 months time of the
revival of society.
3. Records to be produced complying the audit objections well
in time every year.
4. The society will follow all the provisions of Coop. Act and
rules and the directives issued from time to time.
5. Records related to the resignations/enrolments of the members
will be produced within the prescribed period for the approval of
the competent authority.
The society may be bound to fulfil these conditions so that due
to the in action of the Management Committee the same
condition may not arise.”
32.5 The said recommendation was forwarded by JR (South) Sh.
Krishan Kumar (now discharged) allowing an opportunity for hearing to
the Managing Committee of the Society. The said recommendation was
approved by accused R.K. Srivastava on 02.06.2000, itself and the
hearing was thereafter, fixed by the office of RCS on 12.06.2000 at 11.00
a.m. (page 28/N of file Ex. PW19/A) and a letter dated 07.06.2000 (Ex
PW19/C) under the signature of accused P.N. Manchanda was sent to the
President / Secretary of the Society. Pursuant thereto, accused Devender
Pal Singh (President), accused Sunil Kumar (Secretary), accused Ravi
Saluja, accused Anil Kumar and Smt. Shanti Devi (PW-12) appeared
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before accused R.K. Srivastava (RCS) and the noting reads as under:
“… It was decided that the records of the society need to be perused
and accordingly they will be called on 11.00 a.m. on 21.6.2000. The
proceedings register was taken on record carrying entries from page
3 to 70. Documents need to be thoroughly examined by AR.”
32.6 This was followed by accused P.N. Manchanda calling for records
for verification vide his noting dated 14.06.2000 at page 29/N of file Ex.
PW19/A. Thereafter, as per the noting dated 19.06.200 of accused P.N.
Manchanda at pages 30/N and 31/N of file Ex. PW19/A, accused
Devender Pal Singh (President) and accused Sunil Kumar (Secretary) of
the Society produced the membership register consisting of 49 pages
containing 157 entries. It was reported that 52 members had resigned.
They also produced proceedings registers for the period 10.10.1982 to
16.12.1994 (containing 95 pages). Accused P.N. Manchanda further
recorded satisfaction that statutory audit of the Society was complete till
1989-1990 as per the report available at page no 236/C and that balance
sheets for the periods 1999-1991 to 1999-2000 (pages 258/C to 275/C)
had also been filed. Last election had been held on 22.08.1999 and
records of service of agenda notice upon 105 members alongwith copy of
the proceedings of GBM (at pages 282/C to 289/C) was found to be to
his satisfaction.
32.7 He also recorded that General Body Meeting was informed about
the status of liquidation of the Society and the Managing Committee in
its meeting dated 19.03.2000 decided to call the General Body Meeting
for seeking the opinion of the members. Thus, General Body Meeting
dated 16.04.2000 was held in the presence of the members and it was
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decided that the Society be revived authorizing accused Devender Pal
Singh being the President.
32.8 Then, as per proceedings dated 22.06.2000 at pages 31/N to 32/N
accused R.K.Srivastava has recorded that accused Devender Pal Singh
(President) and accused Sunil Kumar (Secretary) of the Society appeared
alongwith original record of membership which were seen. It further
mentions that the records had been verified by the Zonal AR that GBM
had been called and resolution had been passed to get the Society
revived. Accused Devender Pal Singh and accused Sunil Kumar were
advised to file an affidavit that the Society would comply with the
statutory liabilities in future and thereafter, the request made by the
Society would be considered. The proceedings register was then
discharged and handed over to the Secretary of the Society.
32.9 Immediately on the same day an affidavit at page no. 300/C was
filed by accused Devender Pal Singh undertaking to comply with the
statutory obligations cast upon by the DCS Act. Subsequent thereto, as
per noting at page no. 32/N and 33/N, on the same day, the Dealing
Assistant had prepared a note that since the compliance of directions of
RCS had been made, the request of the Society to withdraw the winding
up order may be acceded to. The said recommendation was endorsed by
accused P.N. Manchanda (AR-South) recommending exercise of power
under Section 63(3) of DCS Act and revival of the Society. On
26.06.2000, Dy. Registrar (South) Sh. B.M. Sethi endorsed the
recommendation which was further approved by JR (South) on
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22.06.2000 also recommending putting up of draft order. The said draft
order was placed before accused R.K. Srivastav on 22.07.2000 as per
page 34/N of file Ex. PW19/A and he approved the same and order under
Section 63(3) of DCS Act (Ex. PW19/B) was issued on 29.06.2000
cancelling the liquidation order subject to following conditions :
“1. Elections of the society to be conducted in due course of time i.e.
within the prescribed period.
2. Pending audits are completed within 3 months time of the revival
of the society.
3. Records to be produced complying the audit objections well in
time every year.
4. The society will follow all the provisions of Act and rules and the
directives issued from time to time.”
32.10 Thereafter, a letter was received on 27.07.2000 (at page no.38 of
file D-19 tendered in evidence as Ex. PW40/G (colly) was received from
the Secretary of the Society for approval of enrollment/resignation of
members and for approval of final list of members for allotment of land
as per noting dated 28.07.2000 (page no. 35/N of file Ex. PW19/A). Upon
the same, on 02.08.2000 accused Sunil Kumar had been summoned for
verification of records by accused P.N. Manchanda. On 02.08.2000,
accused Sunil Kumar appeared as the Secretary of the Society and
produced the relevant records in original for verification. As per noting
dated 02.08.2000, the records were completely verified and thereafter,
accused P.N. Manchanda recommended the matter for approval from
competent authority. Accordingly, detailed note dated 08.08.2000 (pages
36/N to 42/N File Ex.PW19/A) was prepared by the Dealing Assistant.
Upon the same, on 11.08.2000 at pages 42/N and 43/N of File
Ex.PW19/A, accused P.N. Manchanda has recorded as under:
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“May kindly peruse the aforegoing note for the approval of final
list of members for allotment of land to the Society. The Society
was registered at Sl. No. 1033 (H). On 7-12-83 (P-122/C) with its
65 promoter members. Thereafter, the Society submitted a final
list of 105 members (P-195/C) enrolled upto 26-7-1985. The
Society was called in the office to produce the records related to
these 105 members so that these enrolments could be approved.
But the Society failed to produce the records. Finally the Society
was placed under liquidation vide order dt. 12.2.92. Thereafter,
Ld. RCS vide his order dt 29.6.2000 (P-305/C) exercising his
vested powers u/s 63 of DCS Act 1972 revived the Society
imposing certain conditions to conduct elections audit and
submitted the records related to the resignations and enrolments.
The Society has now completed the statutory obligations i.e.
elections and audit as stated above. Records related to
resignations/enrolments have been produced which have been
verified. Copies of these records have been retained and placed in
the attached folder. Ld. RCS may approve the list of 105 members
detailed on 39/N to 41/N.
DR (S) Sd/-
11/8/2000
32.11 The said recommendation was seconded by Sh. B.M. Sethi, D.R.
(South) observing as under as per noting dated 17.08.2000
In view of the facts of verification as replied at page 36/N to 43/N
we may approve the list of 105 members as put up by A.R (S) as
‘A’ above.
J.R. (S (South)) BML
17/8/2000
32.12 Sh. Krishan Kumar, J.R. (South) (since discharged) then
noted “(A) above be approved” on 18.08.2000.
32.13 When the file was put up before accused R.K. Srivastava for
approval, on 21.08.2000, his noting reads as under:
“There is some sanctity to the cut off date i.e. 30.6.86. Then there
is some sanctity to list of 105 members having submitted earlier
for which society failed to produce records and Doc was put
under liquidation during 1992. When the Society remained under
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liquidation from 1992 till its revival how come enrolments and
resignations have taken place?
This needs a clarification before approving any list of
members.
AR (South) Sd
21/8"
32.14 Pursuant thereto, in view of the objections raised by accused R.K.
Srivastava, notice for clarification was sent to the Society as per noting
dated 28.08.2000 (Page 44/N of file Ex.PW19/A).
“In view of the observations on PrePage by the Ld. R.C.S. we
may seek the clarification from the Society. Fair letter is added for
sign Pl.
Sd
28/8/2000 A.R (S)"
32.15 A letter dated 28.08.2000 (Ex.PW19/F at page no. 37 of file
Ex.PW40/G(colly) (D-19)) was issued by accused P.N. Manchanda to the
Society. In pursuance thereof, the Society responded by letter dated
31.08.2000 through accused Devender Pal Singh stating that “the
enrollments and resignations that had taken place earlier during the
period under which the society was placed under liquidation, was done
by the previous Managing Committee, that was in power during those
periods, which was against the Act / Rules. However, the present
Managing Committee during its meeting held on 23.07.2000 had
confirmed and accepted all those enrollments and resignations….”. As
per noting dated 05.09.2000 (at pages no. 44/N & 45/N of file Ex.
PW19/A (D-3, Vol-I)), it is recorded as under:
“With reference to objections raised by the Ld. R.C.S on pre-page it is
submitted that the society sought clarification in this regard vide our letter
dated 28.8.2000. The society vide its letter dated 31.8.2000 had stated that
enrollments and resignations which had taken place during the period under
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which the society was placed under liquidation, was done by the previous
Managing Committee which was in power in those years, which is against
the Act/Rules. However the present Managing Committee vide its M.C
Meeting dated 23.7.2000 had confirmed and accepted all these enrolments
and resignations which had taken place during the period under which the
society was placed under liquidation i.e from 12.2.1992 to 29.6.2000. The
society had produced the original records which were verified and the copy
of the same is placed from page 544/c to 548/c.
In view of the circumstances mentioned prepage and from pages 36/N on
wards, the list of 105 members as detailed at page 39/N to 41/N may be
approved and the same may be forwarded to D.D.A for allotment of land.
Submitted pl.
Sd
05.9.2000 A.R (S).”
32.16 Accused P.N. Manchanda then noted as under on 05.09.2000:
: May kindly see the above note with reference to the observations of
Ld. RCS on 43/N. The Society has rectified its resolutions passed
during the period under liquidation and accepted all the resignations
and enrolments afresh in its m.c. meeting dt. 23.7.2000 (Copy of
minutes placed at P-545 to P-547). May approve x above.
DR(S) Sd
5/9/2000"
32.17 Which was forwarded to accused R.K. Srivastava by Sh. B.M.
Sethi, D.R. (South) and Sh. Krishan Kumar, J.R. (South) (since
discharged) on 06.09.2000. Yet again, accused R.K. Srivastava
questioned as under on 07.09.2000 (page 45/N)
“Is it permissible under the provision of law? JR to examine &
comment.
JR (South) Sd
7/9"
32.18 The same was called for discussion by Sh. Krishan Kumar J.R.
(South) (since discharged) and he on 17.09.2000 (at page no. 46/N of file
Ex.PW19/A) has noted as under:
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“Discussed. The enrolments & resignations are in the competence of
the Managing Committee. Although such action during the
liquidation proceedings had no legal sanctity, yet once the Society
has been revived and it is MC in a fresh resolution dated 23/7/2000
has done during the period of liquidation. I do no think there is any
legal hitch in such decisions now on it is in the competence present
Managing Committee.
JR(S) Sd
17/9/2000"
32.19 Then, accused R.K. Srivasatava approved the enrollments and
resignations and list of members. Then, as per noting dated 09.10.2000
(page no. 47/N of file Ex. PW19/A (D-3, Vol-I)), on request of the
Society Sh. Satish Singh Aswal (examined as PW-19) was appointed as
the Election Officer by Sh. Yogiraj, then AR (South). He submitted his
report qua election conducted by him on 19.11.2000 as is referred to in
the noting dated 27.12.2000 (at page no. 47/N-48/N of file Ex. PW19/A
(D-3, Vol-I)). The report is taken on record by Sh. Yogiraj who was then
the AR (South). For audit, Sh. H.C. Kadam was appointed and he
submitted his report to AR (Audit) on 17.07.2000 (Ex. PW11/Z7 (D-3,
Vol-IV))ALLEGATIONS OF FORGERY, USE OF FORGED DOCUMENTS
AND CONSPIRACY TO FORGE AND USE FORGED DOCUMENTS.
33. As per the case of prosecution, the minutes of meeting dated
16.04.2000 (Ex.PW12/P at pages no. 66 to 70 of Proceedings Register
(Ex.PW11/Z6 also D-15)) on the strength of which application under
Section 63(3) of The DCS Act (Ex.PW19/E) had been filed is fabricated
and contains forged signatures of members who had not participated in
the said meeting. Similarly, minutes of meeting dated 12.08.1999 of the
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managing committee (Ex.PW12/E)41 had also been fabricated as the
participants shown to have attended the same had neither attended it nor
signed on the minutes of meeting. Further, the order for withdrawal of
liquidation dated 29.06.2000 (Ex.PW19/B) being a conditional order
imposed certain conditions for revival. Of them, election of the Society
was to be conducted within the prescribed period and records related to
resignations/enrollments of the members was also directed to be
produced within the prescribed period. However, minutes of meeting of
the Managing Committee dated 23.07.2000 (at pages 78 to 81of
Proceedings Register (Ex.PW19/E)) wherein enrollments and
resignations of members made during the period of liquidation were
accepted and confirmed and the final list of members for approval of
RCS for allotment of land was finalised, also had been fabricated and
forged. Additionally, it has also been alleged that the minutes of meetings
of the managing committee in which resignations of 42 members (from
1986 to 2000), out of which 35 members have been shown to have
resigned between 1990-1995 (during liquidation) have been fabricated
and forged. Allegedly, the 29 members shown to have resigned in 1994
in the minutes of meeting, thereby creating corresponding vacancies that
had been filled up by the Society apparently in 1994, had been back
dated as infact, the said enrollments had been made between 1999-2000
just prior to the revival of the Society. Therefore, the resignation
applications and receipts issued had allegedly, also been forged. Also,
41 The agenda of the meeting was fulfillment of statutory requirement of DCS Act and Rules as it
was informed by the Secretary that the society had been put under liquidation vide order dated
12.02.1992. Further, election was conducted by Sh. Vinod Kumar, Election Officer who declared
the winners which included accused Devender Pal Singh as the President of the Society, accused
Sunil Kumar, accused Ravi Saluja and accused Anil Kumar as the Managing Committee members.
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certain applications for enrollment and affidavits were also allegedly,
forged as the members shown claimed that they had not applied for the
membership of the Society. Consequently, the final list of members
(Ex.PW11/Z19) is also a false document.
33.1 In specific, accused K.K. Wadhwa, accused Dev Raj (since
deceased), accused Ravi Saluja and accused Devender Pal Singh have
also been substantively charged for commission of offences punishable
under Section 467/468 IPC for fraudulently and dishonestly
preparing/getting prepared false and forged documents for securing
cancellation of winding up order from the office of RCS and allotment of
land from DDA at a subsidized rate. Accused Devender Pal Singh has
also been facing trial for fraudulently and dishonestly and with
knowledge to have used the fake and fabricated documents for securing
cancellation of winding up order, approval of freeze list of 105 fictitious
members of the Society and thereafter, obtain land from DDA at a
subsidized rate.
33.2 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.
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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 or electronic
record].”
33.3 While defining forgery, the Apex Court in Md. Ibrahim & Ors. Vs.
State of Bihar & Anr.42, 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 of42 (Criminal Appeal No.1695 of 2009) (2009) 13 (ADDL.) S.C.R. 1254
CBI vs K.K. Wadhwa & Ors.
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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
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
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obtained a altered or tampered document by practicing deception, or
from a person not in control of his senses.”
33.4 The prosecution has to prove beyond reasonable doubt (a) that the
document is false (b) that the accused has prepared the false document
(c) with the intention to defraud, in order to establish the charge of
forgery.
33.5 For efficient analysis, the forged documents identified by the
prosecution can be categorized as under:
a. Proceedings Registers (Ex.PW10/B also D-14 and Ex.PW11/Z6
also D-15) containing original minutes of meeting between 10.10.1983 43
to 10.12.2000 and in specific dated 31.07.1994 (Ex.PW13/D1),
12.09.1994 (Ex.PW13/Z13), 10.10.1994 (Mark AB), 06.11.1994,
16.12.1994, 12.02.1995 (Ex.PW12/L), 03.12.1995 (Ex.PW12/M),
24.11.1996 (Ex.PW12/1), 24.12.1996 (Ex.PW12/N), 31.03.1997
(Ex.DW1/Q), 30.05.1997 (Ex.DW1/R), 16.09.1997 (Ex.DW1/S),
19.10.1997 (Ex.PW14/K), 31.12.1997 (Mark DW1/T), 28.02.1998 (Mark
DW1/U), 29.04.1998 ( Mark DW1/V), 30.06.1998 (Mark DW1/W),
30.08.1998 (Mark DW1/X), 27.09.1998 (Ex.PW14/L also Ex.PW12/K),
16.04.2000 (Ex.PW12/P) and 23.07.2000.
b. Photocopy of agenda notice (at page 279/C of file Ex.PW40/E
(colly)) along with service proof of agenda notices for GBM dated
43 Even though through Ms. Sudershan Kumari (PW13), the Ld. PP for the State has got tendered
minutes of meeting dated 10.10.1983 (PW13/F), 20.12.1983 (Ex.PW13/G), 05.06.1984
(Ex.PW13/H), 29.07.1984 (Ex.PW13/J), 08.05.1985 (Ex.PW13/K), 07.08.1985 (Ex.PW13/L),
14.12.1985 (Ex.PW13/M), 31.03.1986 (Ex.PW13/N), 10.05.1986 (Ex.PW13/D), 15.07.1986
(Ex.PW13/Q), 12.11.1986 (Ex.PW13/R), 15.04.1987 (Ex.PW13/S), 13.06.1987 (Ex.PW13/T),
20.09.1987 (Ex.PW13/U), however, the questioned documents as Q-220A is from 15.11.1987,
only.
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16.04.2000 (Mark 6X) (at pages 276/C to 278/C of the same file)
c. Photocopy of agenda notice (at page 289/C of file Ex.PW40/E
(colly)) along with service proof of agenda notices for AGM dated
22.08.1999 (Ex.PW4/C) (at pages 285/C to 288/C of the same file)
d. Membership Register (Ex.PW41/F (colly) also D-13))
e. Photocopies of applications for resignation (pages 393/C to 350/C
in File Ex.PW40/D (colly) (also D-3, Vol-II))(43 applications)
f. Photocopy of Cash Receipts (pages 349/C to 306/C in File
Ex.PW40/D (colly) (also D-3, Vol-II)) (44 receipts).
g. Applications for membership (in Files 43/I (colly), Ex.PW40/J
(colly) and Ex.PW40/K (colly))
h. Affidavits of purported members making declaration of being
eligible to become a member of the Society (pages 405/C to 440/C in
File Ex.PW40/D (colly)) (D-3, Vol-II).
i. Consolidated List of Members (Ex. PW11/Z119)
j. Account statements since 1990-1991 to 1999-2000 (at pages 258/C
to 275/C of File Ex.PW40/E (colly) also, D-3 Vol-III)).
33.6 The Court now proposes to delve upon aforementioned class of
documents one by one as under:
a. Whether Proceedings Register, Agenda Notices and their proof of
service are fabricated and forged?
i) To demonstrate that minutes of meeting of the Managing Committee
of the Society dated 15.11.1987, 31.12.1987, 31.03.1988, 31.08.1988,
31.03.1989, 15.05.1989, 03.06.1989, 30.11.1989, 15.02.1990,
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03.03.1990, 31.03.1990, 31.05.1990, 28.07.1990, 30.12.1990,
10.04.1991, 31.05.1991, 30.07.1991, 30.08.1991, 30.09.1991,
29.10.1991, 30.12.1991, 27.02.1992, 06.04.1992, 30.04.1992,
30.08.1992, 30.12.1992, 31.03.1993, 30.04.1993, 30.06.1993,
24.08.1993, 25.10.1993, 27.11.1993, 30.12.1993, 28.01.1994,
28.02.1994, 29.03.1994, 28.05.1994, 31.07.1994, 12.09.1994,
10.10.1994, 06.11.1994 and GBM dated 30.09.1988, 17.08.1989,
30.01.1990, 21.10.1991, 27.11.1993 (in Proceeding Register Ex.PW10/B
(D-14))
and
meeting of the Managing Committee of the Society dated 15.01.1995,
26.03.1995, 21.05.1995, 16.07.1995, 09.09.1995, 05.11.1995,
28.02.1996, 30.06.1996, 25.08.1996, 16.10.1996, 29.01.1997,
30.05.1997, 28.07.1997, 31.12.1997, 28.02.1998, 30.06.1988,
10.01,1999, 04.04.1999, 05.06.1999, 25.07.1999, 10.01.2000,
19.03.2000, 14.05.2000, 12.06.2000, 02.07.2000, 09.07.2000,
23.07.2000, 28.08.2000, 29.09.2000, 22.10.2000, 26.11.2000 and
10.12.2000 and AGM/GBM dated 12.02.1995, 03.12.1995, 24.11.1996,
19.10.1997, 27.09.1998, 22.08.1999 and 16.04.2000 (in Proceeding
Register Ex.PW11/Z6 D-15), have been fabricated and forged, the
Prosecution seeks to rely upon the following evidences:
(a.) Testimonies of members (whether genuine or fake) Sh. Durgesh
Yadav (PW-4), Sh. Ashok Kumar (PW-10), Smt. Sudarshan Kumari
(PW-13), Ms. Meenakshi Fialok (PW-16), Sh. Rajesh Jaggi (PW-21), Sh.
Nahar Singh (PW-14), Smt. Shanti Devi (PW-12), Sh. Rajesh Aggarwal
(PW-1), Sh. Vijender Yadav (PW-15), Sh. Ram Chandra (PW-24), Sh.
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Anil Kumar Gulati (PW-7), Sh. Faqir Chand (PW-9), Sh. Deepak Bajaj
(PW-23), Sh. Vinod Kumar (PW-33) and Sh. Surender Kumar (PW-34).
(b.) Handwriting Analysis Report (Ex. PW40/C) tendered in evidence
by Sh. B.P. Mishra (PW-40) along with statements of miscellaneous
witnesses Sh. Sudhir Kant (PW-42), Sh. V.S. Dagar (PW-43), Sh. Suresh
Kullar (PW-44) and Inspector Richhpal Singh (PW-41) for identification
of the specimen writings / signatures.
(a.(i).) So far as the testimony of Smt. Sudarshan Kumari (PW-13)
(sister of accused Dev Raj) (Membership no. 11) is concerned, it is
observed that qua the genuineness of the minutes of meeting, she did not
support the case of prosecution to the effect that no meeting dated
22.08.1999 had been conducted and that she had signed the same at
request of her brother accused Dev Raj (since deceased) and that minutes
of meeting dated 16.04.2000 had not been signed by her and was rather
forged. In fact, she testified that minutes of meeting in Proceeding
Register Ex.PW10/B (D-14)) were bearing her signature and she had
attended those meetings. Though she claimed she did not remember
whether she had attended the meeting of the Society held on 22.08.1999
(Ex.PW12/E), it was signed by her. She also stated that minutes of GBM
dated 16.04.2000 (Ex.PW12/P) had been signed by her. However, it
cannot be lost sight of that she is a relative of accused Dev Raj (since
deceased) and of accused Rajesh Kumar Khatri and therefore, naturally
inclined not to depose against them. Similarly, Ms. Meenkashi Fialok
(PW-16) (daughter of accused Dev Raj (since deceased) and sister of
accused Rajesh Kumar Khatri) also did not support the case of the
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prosecution that she was introduced as a member only in the year 2000
and not before that.
(a.(ii.)) However, during examination Smt. Shanti Devi (PW-12)
(sister of accused Sunil Kumar and accused Anil Kukmar), stated that
she had attended four or five meetings of the Society. Thereafter, she
stated that she did not remember whether she had attended the GBM of
the Society dated 22.08.1999 (Ex.PW12/J) and also denied the signature
attributed to her at Serial no. 34 of the list of attendees. She denied
having attended GBM dated 27.09.1998 (Ex.PW12/K), 12.02.1995
(Ex.PW12/M), dated 24.11.1996 (Ex.PW12/N), 16.04.2000
(Ex.PW12/P) and dated 19.11.2000 (Ex.PW12/Q) and also deposed that
they did not bear her signatures. This is contradictory to her statement
under Section 161 Cr.P.C. (Mark PW12/DA) according to which the said
minutes of meeting was signed by her at her residence at behest of her
brother accused Anil Kumar. But there are compelling reasons for the
witness to not support the case of the prosecution on the said aspect as
she is a relative of accused Anil Kumar and accused Sunil Kumar and it
can also be gathered from noting at page 29/N of file Ex. PW19/A that
she had accompanied accused Devender Pal Singh, accused Sunil
Kumar, accused Ravi Saluja and accused Anil Kumar for the hearing
before the RCS on 12.06.2000. Also, as, she was a member of the
Executive Committee of the Society as admitted by her during her
examination in chief. So, her vested interest cannot be ignored. Be that
as it may, the said contradiction does not in any way render the
aforementioned minutes of meeting to be genuine as the witness has
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categorically, denied to have signed them. The genuineness of the
minutes of meeting dated 06.11.1994 is further questionable as from her
examination and cross-examination, it has also come on record that she
joined the Society 17-18 years back (w.e.f. 06.10.2018) therefore, around
the year 1999-2000 and she also denied to have become the member of it
in November, 1994 even though she has also stated that the application
date “02.11.1994” was mentioned by her at the time of becoming a
member. This aspect of her testimony has not been effectively
controverted.
(a.(iii.)) Also, Sh. Durgesh Yadav (PW-4) deposed that he never
attended the proceedings of the general body of the Society as he had not
consciously become a member of the Society by himself. He has deposed
that some Sh. Parvesh44 Yadav and Sh. Vijender Singh had obtained his
signatures on some documents. When he was shown the photocopy of
minutes of meeting of the GBM dated 22.08.1999 (Ex. PW4/E at page
no. 284/C to 282/C of file Ex. PW40/E (colly)) (the original of said
minutes of meeting is already Ex. PW12/E in the Proceedings Register
Ex.PW11/Z6), he denied having attended the said meeting and also
deposed that signatures appearing against his name at sl no. 21 is forged.
Here, contents of minutes of meeting dated 06.11.1994 therefore, also
appear to be fabricated as Sh. Durgesh Yadav was shown to have been
introduced as a member of the Society on 06.11.1994. During his cross-
examination conducted only by Ld. Counsel for accused Rajesh Kumar
44 One Parvesh is shown as a member at sl no. 16 and one Vijender Singh (PW-15) has also been
examined and purportedly shown as a member at sl no. 25 of minutes of meeting of the GBM
dated 22.08.1999 (Ex. PW12/E)
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Khatri, there has been no questioning on the assertions of the witness and
therefore, the testimony of the witness is untraversed.
(a.(iv.)) Similarly, when Sh. Vijender Singh (PW-15) was examined
by the prosecution, he has deposed that he became the member of the
Society in the year 1999 or 2000 through accused Dev Raj (since
deceased). He also confirmed that accused Sunil Kumar was looking
after the finance of the Society. However, he failed to identify him in
Court due to lapse of time. On being shown minutes of meeting dated
22.08.1999 (Ex. PW12/E), he deposed that “the signatures in my name
on this document at Point D at Sr. No. 25, page No. 58 are not mine “.
He also deposed that minutes of meeting of GBM dated 16.04.2000 (Ex.
PW12/P) also did not contain his signature at point D at sl no. 47 at page
no. 67 (of Register Ex. PW11/Z6 also D-15). When he was cross-
examined by Ld. Counsel for accused K.K. Wadhwa, he deposed that due
to lapse of time he was unable to identify his signatures or documents
which were shown to him. Thus, a futile attempt was made by the
defence to discredit the witness. The attempt is futile according to this
Court as the witness when he identified the signatures or documents
during his examination in chief did not whisper about any compulsion to
do so. Therefore, a stray suggestion of his inability to identify the
signature or documents shown to him is of no consequence.
(a.(v.)) When Sh. Ashok Kumar (PW-10) was examined on
25.08.2018, he testified that he had become a member of the Society
about 30-35 years ago through one Sh. Massa Ram. But, on being shown
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the minutes of GBM dated 10.08.1983, 30.09.1988, 17.08.1989,
29.10.1991 and 27.11.1993 in Register Ex. PW10/B (D-14), he denied
the signatures against his name. He also denied signatures against his
name in minutes of meeting of the Managing Committee from
05.06.1984 to 30.09.1991. During cross-examination conducted by Ld.
Counsel for accused Rajesh Kumar Khatri no material was elicited to
contradict the assertion of the witness that he had not participated in the
above-mentioned GBMs and that his signatures on the minutes had been
forged.
(a.(vi.)) Further, when the testimony of Sh. Nahar Singh (PW-14) is
perused, it can be fathomed that he never became a member of the
Society. He also denied having attended any meeting of the Society and
specifically deposed that proceedings of GBMs dated 12.02.1995 (Ex.
PW12/L), 03.12.1995 (Ex. PW12/M), 24.11.1996 (Ex. PW12/N),
19.10.1997 (Ex. PW14/K), 27.09.1998 (wrongly mentioned in the
deposition sheet as 22.09.1998) (Ex. PW14/L), 22.08.1999 (Ex.
PW12/E) and 16.04.2000 (Ex. PW12/P) did not bear his signature
against his name. During cross examination, Ld. Counsel for accused
Anil Kumar and accused Sunil Kumar and also Ld. Counsel for accused
K.K. Wadhwa attempted to raise doubts on the credibility of the witness
seeking to demonstrate that he had suffered some loss of memory on
account of a bye-pass surgery. However, in the considered view of the
Court, it has not been clarified from the examination as to which organ of
the witness was affected requiring surgery and whether, the said
treatment could have affected his cognitive abilities. The witness has
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been examined in chief in detail and during his said examination, the
Court has not observed any incompetency on his part. Therefore, the
cross-examination is superficial and does not raise any credible grounds
to dis-credit the witness.
(a.(vii.)) Sh. Ramesh Chandra (PW-24) has testified that he became a
member of Society in 1984-1985. However, he denied that he had
applied for resignation from the membership vide application dated
27.08.1984 (Ex.PW24/C) or that receipt Ex.PW24/B which is dated
28.09.1984 was not signed by him. Yet, as per minutes of meeting dated
12.09.1994 (Ex.PW13/Z13), he has shown to have resigned casting
doubts on the contents of the meeting. The witness could not confirm
whether the application for withdrawal and cash receipt was forged by
his brother in law Sh. Baldev Raj. Therefore, during cross-examination,
the defence has not been able to disprove the assertions of the witness.
(a.(viii.)) As per minutes of meeting of the Management Committee
dated 12.09.1994 (Ex.PW13/Z13), Sh. Anil Kumar Gulati (PW-7) has
also been shown to have resigned. However, the witness when examined
before the Court has denied that application for withdrawal (Ex.PW7/C)
was written or signed by him and also that cash receipt (Ex.PW7/D) was
signed by him. Once again, his testimony qua documents being forged
remained unrebutted as can be seen from the cross-examination. Hence,
it casts doubts on the genuineness of minutes of meeting dated
12.09.1994 (Ex.PW13/Z13).
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(a.(ix.)) Sh. Deepak Bajaj (PW-23) when examined before the Court
categorically deposed that he had never become a member of any
Cooperative Group Housing Society. Therefore, application for
resignation dated 01.09.1994 (Ex. PW23/B) as also the receipt dated
27.09.1994 (Ex. PW23/C) were deposed to be forged. Through the cross-
examination conducted on behalf of accused Rajesh Kumar Khatri, the
credibility of the witness was sought to be questioned by demonstrating
that he is a planted witness and probably his in-laws made him a member
of the Society without taking him into confidence. However, the said
cross-examination does not turn much as the witness has continued to
assert that he himself has not applied or resigned from the membership
of the Society. The witness claimed ignorance about the defence sought
to be raised and there is no affirmative evidence led by accused Rajesh
Kumar Khatri to show that in-laws of the witness had fabricated the
documents pertaining to the witness to obtain membership in his name.
Hence, once again, the content of minutes of meeting dated 12.09.1994 is
questionable.
(a.(x.)) Sh. Naresh Kumar (PW-32) has testified that he never
became a member of the Society and the application for withdrawal (Ex.
PW32/C) as well as cash receipt dated 21.08.1994 (Ex. PW32/D) have
been forged. During cross examination, Ld. Counsel for accused Anil
Kumar and accused Sunil Kumar, noting contradictory was elicited.
(a.(xi.)) Sh. Vinod Kumar (PW-33) has also denied being a member
of the Society or to have resigned vide application dated 20.12.2001
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(Ex.PW33/C) or to have accepted any refund against cash receipt dated
02.02.2002 (Ex.PW33/D). Therefore, the minutes of meeting dated
12.09.1994 wherein the said witness is shown to have resigned is fake.
(a.(xii.)) Sh. Rajesh Jaggi (PW-21) did not support the case of the
prosecution as he claimed lack of recollection qua minutes of meeting of
GBMs dated 12.02.1995 (Ex. PW12/L), 03.12.1995 (Ex. PW12/M),
24.11.1996 (Ex. PW12/N), 19.10.1997 (Ex. PW14/K), 27.09.1998 (Ex.
PW14/L) and 22.08.1999 (Ex. PW12/E), due to lapse of time.
(a.(xiii.)) When one peruses the testimony of Sh. Rajesh Aggarwal
(PW-1), he has pleaded ignorance about the minutes of meeting of
Managing Committee dated 10.10.1994 recorded at page no. 92 of
Proceedings Register (Ex. PW10/B) which is Mark AB and which the
prosecution has attributed to accused K.K. Wadhwa. There is
inconsistencies in the evidence led by the Prosecution on the handwriting
of Mark AB as Sh. Arun (PW-45) has attributed the said hand-writing to
his father accused Dev Raj (since deceased).
(a.(xiv.)) To further appreciate the genuineness of minutes of General
Body Meeting dated 22.08.1999 (Ex. PW12/E) and 16.04.2000 (Ex.
PW12/P) which had been submitted on 26.05.2000 by Secretary accused
Sunil Kumar at the office of Assistant Registrar (South) and endorsed by
accused P.N. Manchanda (letter at page no. 297/C of file Ex. PW40/E
(colly) for revival of the Society and verification of final list of members,
it also becomes imperative to ascertain whether service proof of agenda
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notices is factually correct. Along with the letter, photocopy of agenda
notice dated 26.07.1999 was also filed. The said agenda notice was
addressed to all members of the Society as AGM was scheduled on
22.08.1999 for the following agendas:
“1. To confirm the minutes of last AGM
2. To discuss the fate of the Society in the light of liquidation
under dated 12.02.92 under section 63
3. ELECTION : Election for the One post of President, One post
of Vice-President, and 5 post of Managing Committee
members…”
It was also accompanied with the agenda notice of Sh. Vinod Kumar,
Election Officer scheduling the elections on the said date. Purportedly,
the said agenda notices were dispatched vide UPC certificate dated
27.07.1999, copy of which was also filed before the Assistant Registrar
(South) and has been tendered in evidence as Ex. PW4/C. It enlists 106
addressees including the Assistant Registrar (South). Similarly, the said
letter is also accompanied with copy of agenda notice dated 20.03.2000
calling for a General Body Meeting on 16.04.2000 for the following
agendas:
“1. To Confirm the minutes of the last General Body
Meeting.
2. To consider the necessary action and to take the views
of the members regarding of the Society in the light of the
present policy vide with several Socities are being received by
the RCS to fullfil the everlast dream/objectof the members and
the Society….”.
In support of proof of service, the letter was accompanied with copy of
another UPC dated 22.03.2000 tendered in evidence as Mark 6X. Both
Ex. PW4/C and Mark 6X are identical. Of the 106 purported members
mentioned therein, 22 of them have been examined before the Court.
Unfortunately, the prosecution has been lackadaisical in not putting the
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fact in issue to all the 22 witnesses qua receipt of agenda notices. ( It is
perturbing to note that the said fact in issue to establish that minutes of
meetings are not genuine has not been put to remaining witnesses
examined and appearing in the UPC certificate. It is here, that the Court
is anguished that the prosecution often becomes casual and superficial,
adversely impacting the trial. Possibly, when the file changes hand, there
is a lack of in-depth study of the record by the successive Prosecutors
and hence, there are unwarranted omissions which should be guarded
against.) Be that as it may, considering that Sh. Durgesh Yadav (PW-4)
(shown at sl no. 91 of the lists) and Sh. Dinesh Kumar Gulati (PW-6)
(shown at sl no. 28 of the lists) had been examined about receipt of any
communication against the agenda notices to which their reply was in the
negative. There has also no response been elicited during cross-
examination to contradict the testimonies of the aforementioned
witnesses qua non-service of agenda notices. Also, what is observable
from record is that purported recipients Sh. Durgesh Yadav (PW-4),
Sh.Umesh Kumar (PW-5), Sh. Dinesh Kumar Gulati (PW-6), Sh. Ashok
Kumar (PW-10), Ms. Shati Devi (PW-12)(qua GBM dated 22.08.1999),
Sh. Nahar Singh (PW-14) and Sh. Vijender Singh (PW-15) are additional
few witnesses who are shown to have been issued notices however, have
also denied having participated in any proceedings of the Society.
Hence, in view of the facts and circumstances of the case, this renders it
further plausible that no agenda notices as claimed had been issued on
the respective dates. Thus, this further demonstrates that the minutes of
meeting of the Managing Committee and the General Body Meetings
relied upon at the time of revival of the Society were not genuine.
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(a.(xv.)) In the considered view of this Court as approval of
enrollments and resignations of the members is also a contentious issue,
minutes of Managing Committee meetings dated 31.07.199445,
12.09.199446, and 02.07.200047 are required to be examined qua their
genuineness. The said examination would be with greater clarity if it is
borne in mind that enrollments have been fabricated (a) completely as
the witnesses have deposed that they never became member of the
Society and (b) members have been introduced around 1999-2000
(around the time revival was sought) though, minutes of meetings have
been fabricated to show introduction of members much earlier in point of
time i.e. during the period the Society was not functioning.
(a.(xvi.)) Of the witnesses examined by the prosecution, Sh.Durgesh
Yadav (PW-4), Sh. Dinesh Kumar Gulati (PW-6.), Sh. Anil Kumar Gulati
(PW-7), Ms. Shama (PW-8), Sh. Nahar Singh (PW-14), Sh. Daulat Ram
(PW-20), Sh. Deepak Bajaj (PW-23), Sh. Naresh Kumar (PW-32), Sh.
45 Members shown to have resigned are Sh. Naresh Kumar (M. No. 8), Ms. Veena (M. No. 23), Sh.
Chatter Singh (M. No. 39) and Sh. Dharam Pal (M. No. 42).
46 Sh. Ramesh Kumar Goel (M. No. 125), Sh. Madan Lal Saini (M.No. 105), Ram Pyari (M.No. 95),
Sh. Ram Chander (M.No. 75), Sh. Anil Kumar Gulati (M.No. 45), Sh. Dev Raj (M. No. 50), Ms.
Lalita Mahi (M. No. 60), Sh. Baldev Arora (M.No. 70), Sh. Avtar Singh (M. No. 80), Sh. Sukhdev
Singh (M. No. 90), Sh. Vinod Kumar Sikri (M. No. 100), Sh. Samboo Saran Singh (M. No. 110),
Sh. Surinder Kumar (M. No. 48), Sh. Yograj Khattar (M. No. 47), Sh. Deepak Bajaj (M. No. 57),
Sh. Kasturi Lal (M. No. 62), Sh. Nirmal Sikka (M. No. 67), Sh. Narinder Sagar (M. No. 72), Sh.
Sushil Kumar (M. No. 82), Sh. Bhupinder Singh (M. No. 87), Ms. Sudesh Kumari (M. No. 92), Sh.
Laxman Dass Puri (M. No. 97), Ms. Kamla (M. No. 98), Sh. Massa Ram (M. No. 04) and Sh.
Vinod Kumar (M. No. 15).
47 Sh. Shashi Mehta (M. No. 121), Sh. Kishan Chand (M. No. 122), Ms. Nishi Goel (M. No. 123),
Sh. Ram Singh Sure (M. No. 124), Sh. Prem Chand (M. No. 126), Ms. Bhupinder Kaur (M. No.
127) and Sh. Sanjeev Kumar (M. No. 128)
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Vinod Kumar (PW-33), Sh. Surender Kumar (PW-34) and Sh. Rajesh
Yadav (PW-37) have deposed that they never became a member of the
Society. Among the aforementioned witnesses, Sh. Daulat Ram (PW-20),
Sh. Naresh Kumar (PW-32), Sh. Deepak Bajaj (PW-23), Sh. Dinesh
Kumar Gulati (PW-6) and Sh. Anil Kumar Gulati (PW-7) are shown to
have become members in early 1980s (whether rightly or wrongly)
which is prior to the period since when conspiracy against the accused
persons has been alleged. Therefore, the Court does not deem it
necessary to delve upon their enrollments. However, the remaining
witnesses namely Sh. Durgesh Yadav (PW-4), Ms. Shama (PW-8), Sh.
Nahar Singh (PW-14), Sh. Vinod Kumar (PW-33) and Sh. Rajesh Yadav
(PW-37), purportedly applied vide application Ex. PW4/A dated
03.11.1994, Ex.PW8/A dated 12.12.1994, Ex.PW14/A dated 11.12.1994,
Ex.PW33/B dated 02.11.1994 and Ex. PW37/A dated 12.12.1994,
respectively. They all have denied moving the application and deposed
that the applications have been forged. The said testimonies are
uncontroverted on the said aspect. Sh. Surender Kumar’s (PW-34)
application is not tendered in evidence. However, he too has denied
having applied for membership. Sh. Durgesh Yadav (PW-4) was
introduced as a member vide minutes of meeting of the Managing
Committee dated 06.11.1994. The remaining aforementioned witnesses
have been introduced as members vide minutes of Managing Committee
Meeting of the Society held on 16.12.1994. Through the said meeting,
accused Devender Pal Singh as well as accused Ravi Saluja also have
been inducted as members of the Society.
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(a.(xvii.) As already mentioned above, there are also witnesses who
were made to join later but have been shown to have been introduced as
members earlier in point of time when the Society was not functioning.
Such members can be identified as witnesses Smt. Shanti Devi (PW-12),
Sh. Vijender Singh (PW-15) and Sh. Suresh Kumar (PW-26). Smt.
Shanti Devi has been introduced as a member on her application dated
02.11.1994 (Ex.PW12/A) vide minutes of meeting of Managing
Committee Meeting dated 06.11.1994. During her testimony, she has not
supported the case of the Prosecution. Sh. Vijender Singh (PW-15) has
deposed that he became a member of the Society only in 1999-2000
through accused Dev Raj (since deceased) who he had met at the office
of accused Sunil Kumar whom he did not identify in Court due to lapse
of time. However, his application is dated 11.12.1994 and the minutes of
meeting vide which he was introduced as member is 16.12.1994.
Similarly, Sh. Suresh Kumar (PW-26) has stated that he became a
member in the Society in the year 2000 through his neighbor Sh. Anil
Kumar (whom he stated to be different from accused Anil Kumar) at an
office at Patel Nagar where he had met accused Dev Raj (since
deceased). Neither Sh. Virender Singh nor Sh. Suresh Kumar have been
contradicted on their assertions that they had applied for membership
only in 1999-2000 and not in 1994. Therefore, the it has been proved that
the minutes of meeting dated 06.11.1994 are fabricated and back dated.
(a.(xviii.)) Therefore, on cumulative assessment of the above
testimonies there is convincing material brought on record through which
the prosecution has been able to prove that the relevant minutes of
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meetings of the Managing Committee and of the General Body Meeting
referred to above have been fabricated and forged.
(b) The question which now arises is whether the prosecution has then
able to then establish that the fabrication, forgery and false creation can
be attributed to accused persons? Substantive charges under Section
467/468 IPC have been framed only qua accused K.K. Wadhwa, accused
Dev Raj (since deceased) and accused Ravi Saluja. Accused Anil Kumar,
accused Sunil Kumar and accused Rajesh Kumar Khatri though not
charged substantively under Section 467/468 IPC, have been charged
under Section 420 IPC on allegations of dishonestly and fraudulently
preparing or getting prepared fake proceedings with motive to
fraudulently revive the Society. Accused Rajesh Kumar Khatri has
specifically been charged for writing fake proceedings (dated 31.07.1994
and 12.09.1994) at instances of his father accused Dev Raj (since
deceased).
i) To prove that fake proceedings were written or false documents
(Proceedings Register, Resignation letters etc.) were prepared / forged /
fabricated / manipulated by the aforementioned accused persons, the
reliance of the prosecution is upon (a) oral testimonies and (b) report of
the handwriting expert.
ii) So far as oral testimonies are concerned, the relevant witnesses can
be understood as Sh. Rajesh Aggarwal (PW-1) and Sh. Arun Kumar
(PW-45). In addition, during cross-examination of Ms. Sudarshan
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Kumari (PW-13) and Ms. Madhu (PW-38), the defence has sought to
prove that minutes of meetings dated 31.07.1994 and 12.09.1994 are not
in the handwriting of accused Rajesh Kumar Khatri. However, Sh.
Rajesh Aggarwal (PW-1) did not support the case of the prosecution in
identifying that minutes of meeting dated 10.10.1994 (Mark AB) 48 was in
the handwriting of accused K.K. Wadhwa. Also, Sh. Arun Kumar
(PW-45) (son of accused Dev Raj (since deceased) and brother of
accused Rajesh Kumar Khatri) did not support the case of the
prosecution in identifying that handwritings in general body meetings
dated 31.03.1990 to 28.05.1994, 31.07.1994 to 12.09.1994 (Ex.
PW10/B)(D-14) and Managing Committee meetings dated 15.01.1995 to
10.12.2000 (Ex. PW1/Z6((D-15), 20.01.2001 to 18.04.2002 (D-16) and
19.11.2000 to 21.12.2003 (D-17) and also did not identify forgery of
signatures of Smt. Premlata and Ms. Madhu on GBM dated 10.10.1994,
of Smt. Prem and Ms. Madhu. However, there is a statement of the said
witness under Section 164 Cr.P.C. which has been tendered in evidence
as Ex. PW45/A. During cross examination by the Ld. Public Prosecutor
for the State, the said statement was read over to the witness and he
admitted the same to be correct and having been made by him. The said
statement records as under :
“My father had business of tour and travel. At present he is sick
and confined to bed. In the year 1983-84 my father formed a
Central Group Housing Society (CGHS) by the name of Lok Priya
Vihar CGHS Ltd. My father ran the society for 4-5 years.
Thereafter my father started remaining ill and the society become
defunct. The papers / documents of the society were of no use to
him. Sometime in the year 1990-92 Sh. Anil Kr. And Sh. K.K.
Wadhwa took the documents of the society from my father stating48 It is a minutes of meeting correcting duplicate recording of resignations of certain members.
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that under the scheme of the government they could get the society
revived. My father returned the payment received from the
members to the respective members. My father had told Anil Kr.
and K.K. Wadhwa that they should induct 6-7 persons from our
family / acquaintance as members in the society. In the year 1990-
92 I was student. We had been called by Mr. Thakur Dy. S.P. CBI
and I accompanied my father to the office of the CBI as my father
can’t see and walk. Sh. Anil Kr. and Sh. K.K. Wadhwa were also
present in the CBI office. I remember that I had seen these persons
at my residence on one-two occasions when they visited my father.
When the talks for documents of the society had taken place I was
a student however, now I have been told by my father that Sh. Anil
Kr. and Sh. K.K. Wadhwa had taken the documents of the society
as mentioned above. In the year 1998 – 99 I had been made a
member of the Lokpriya Vihar, CGHS by K.K. Wadhwa. However,
in the year 2001 I resigned from membership of the society at the
advice of my father. My father had given the document of the
society to Sh. Anil Kr. and Sh. K.K. Wadhwa thinking that they
would help the members of the society. However, it has come out
that they had cheated the members. Dy. S.P. Thakur had shown
some documents to us. We were shown the resignation of my
maternal grandfather Sh. Narsingh Dass (one of the original
members of the society) of the year 2001 whereas my maternal
grandfather had expired in the year 1986. Apparently his
resignation was forged. My aunty (Mausi) Mrs. Premlata and my
aunty (Mami) Mrs. Madhu Mehta were also original members of
the society. They are resident of Ludhiana and Haridwar
respectively. They come to Delhi on a gap of many years. Some
ante date documents with the signatures of my Mausi and Mami
were also shown to us by Dy. S.P. Thakur. Both of them were not
in Delhi on the date mentioned in the said documents. My brother
Rajesh Kr and my sister Meenakshi had also become member of
the society with me in the year 1999 and they also resigned in the
year 2001. Some friends of my father were also member of the
society however, I do not have knowledge about the status of their
membership. Though we had been made members since 1994. In
the year 1994 the society was not functioning. If the documents
which were shown to me at the CBI office, are shown again to me I
can identify them. I had not attended any meeting of the society. I
do not attended any meeting of the society. I do not want to say
anything else.”
iii) During cross-examination by Ld. Counsel for accused K.K.
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Wadhwa, the only cross-examination limited to the aforementioned
statement is as under :
“I do not remember whether the CBI official was with me when I
appeared before the Ld. Magistrate to give the statement. I do not
remember whether it was CBI or the court who called me for the
purpose of recording of my statement. It is wrong to suggest that
was tutored by th CBI official to make the statement before the
Ld. Magistrate. VOL. I cannot give the statement at the instance
of someone. It is wrong to suggest that I am deposing falsely.”
iv) Thus, this Court is faced with a situation where a witness has
partly resiled from his previous statement Ex. PW45/A (recorded under
Section 164 Cr.P.C) and therefore, is anxious whether his statement Ex.
PW45/A can still be relied upon?
v) Here, the Court would allude to K.P. Tamilmaran Vs. State49 :
“18. When a witness, produced on behalf of prosecution, deposes
against the prosecution version and goes against his/her own
previously recorded statements, the prosecution can request the
Court to declare such a witness as hostile and seek permission
from the Court to cross-examine its own witness. This is the
procedure followed in a Trial, as we all know. In the present case,
there are as many as fifty-one prosecution witnesses and it is also
a fact that many of them have turned hostile by turning against
their earlier statements made before the police under section 161
CrPC, and even before the Magistrate under section 164 CrPC, in
some cases. This phenomenon is not new, in fact it is sadly a
common occurrence in our criminal Courts today, much to the
despair and frustration of the prosecution. This case, therefore, is
no exception. Despite this, however, there are witnesses in the
present case, especially PW-1, PW-2, PW-3, PW-15 and PW-49,
whose evidence, in the form of their testimonies before the
Court, is more than sufficient to convict the present appellants. A
word here about the evidentiary value of a so-called hostile
witness.
19. The Indian Evidence Act, 1872 (hereinafter ‘Evidence Act‘)
49 2025 INSC 576
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allows a party, with the leave of the Court, to cross-examine its
own witness. Section 154 of the Evidence Act originally read as
follows:
“154.Question by party to his own witness The Court may,
in its discretion, permit the person who calls a witness to
put any questions to him which might be put in cross-
examination by the adverse party.”
20. The Calcutta High Court, in Khijiruddin Sonar v. Emperor
1925 SCC OnLine Cal 259, while interpreting Section 154 of the
Evidence Act, held that “When a witness who has been called by
the prosecution is permitted to be cross-examined on behalf of
the prosecution under the provisions of Section 154 of the
Evidence Act, the result of that course being permitted is to
discredit that witness altogether and not merely to get rid of a
part of his testimony”.
21. But this judgment in Khijiruddin was overruled by a five-
Judge bench of the Calcutta High Court in Praphullakumar
Sarkar v. Emperor 1931 SCC OnLine Cal 7. The High Court was
answering a reference from a Division Bench regarding the
specific question of whether the testimony of a witness, who was
cross-examined by the party which produced him/her, should be
discarded totally, partially, or not discarded at all. Chief Justice
Rankin, speaking for three other Judges and himself, answered
the reference in the following terms:
“24. In my opinion, the fact that a witness is dealt with
under Section 154 of the Evidence Act, even when under
that Section he is “cross-examined” to credit, in no way
warrants a direction to the jury that they are bound in law
to place no reliance on his evidence, or that the party who
called and cross-examined him can take no advantage
from any part of his evidence. There is, moreover, no rule
of law that if a jury thinks that a witness has been
discredited on one point, they may not give credit to him
on another. The rule of law is that it is for the jury to say.
Of the seven questions stated by the Division Bench I
propose that we should answer four, viz.–
(3) whether the evidence of a witness treated as “hostile”
must be rejected in whole or in part;
(4) whether it must be rejected so far as it is in favour of
the party calling the witness;
(5) whether it must be rejected so far as it is in favour of
the opposite party.
These three questions I would answer in the negative.
(6) Whether the whole of the evidence so far as it affects
both parties favourably or unfavourably, must go to the
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jury for what it is worth.
25. To this question, I would be content to answer “yes,”
…”
22. Justice Buckland, in the above case, in his concurring
opinion holds that there is no law which states that the evidence
of a witness, who has been cross-examined by its party, should
be entirely rejected. In his opinion, it is for the jury (or the
Judge) to form an opinion regarding the value of the testimony
of such a witness.
23. All the same, later this Court in Jagir Singh v. State (Delhi)
(1975) 3 SCC 562 held to the contrary and approved the
decision of the Calcutta High Court in Khijiruddin. This is what
was said in Jagir Singh by Justice Bhagwati:
“7. Now, it is apparent from the judgment of the High
Court that the conviction of the appellant rested entirely
on the evidence of Pritam Singh (P.W. 10) and Sajjan
Singh (P.W. 13). Swaran Singh (P.W. 11) was also
examined on behalf of the prosecution but his evidence
is of no help to the prosecution because he went back on
the story of the prosecution and was permitted to be
cross-examined on behalf of the prosecution. It is now
well settled that when a witness, who has been called by
the prosecution, is permitted to be cross-examined on
behalf of the prosecution, the result of that course being
adopted is to discredit that witness altogether and not
merely to get rid of a part of his testimony. See
Khijiruddin v. Emperor….”
24. However, it is to be noted that Jagir Singh does not refer to
the five-Judge Bench decision of the Calcutta High Court in
Praphullakumar Sarkar.
25. But then in a subsequent decision (of which Justice
Bhagwati was also a part) i.e., Sat Paul v. Delhi Administration
(1976) 1 SCC 727, it was held differently. Justice Sarkaria,
speaking for the Bench, clarified the earlier judgment in Jagir
Singh, and held that what has been held in Jagir Singh would
only be applicable where a witness through cross-examination
by the party which calls it, is totally discredited. It is only in
such a situation that the Court, as matter of prudence, discards
his/her evidence in its entirety.
26. As a general rule, the testimony of a witness who has been
cross-examined by the party which produced him/her will not
stand totally discredited, and it is for the Court to consider what
value should be attached to this testimony. After referring to a
series of judgments on this point, the Court in Sat Paul held as
follows:
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“52. From the above conspectus, it emerges clear that
even in a criminal prosecution when a witness is cross-
examined and contradicted with the leave of the court,
by the party calling him, his evidence cannot, as a
matter of law, be treated as washed off the record
altogether. It is for the Judge of fact to consider in each
case whether as a result of such cross-examination and
contradiction, the witness stands thoroughly discredited
or can still be believed in regard to a part of his
testimony. If the Judge finds that in the process, the
credit of the witness has not been completely shaken, he
may, after reading and considering the evidence of the
witness, as a whole, with due caution and care, accept,
in the light of the other evidence on the record, that part
of his testimony which he finds to be creditworthy and
act upon it. If in a given case, the whole of the testimony
of the witness is impugned, and in the process, the
witness stands squarely and totally discredited, the
Judge should, as matter of prudence, discard his
evidence in toto.
53. It was in the context of such a case, where, as a
result of the cross-examination by the Public,
Prosecutor, the prosecution witness concerned stood
discredited altogether, that this Court in Jagir Singh v.
State (Delhi Admn.) with the aforesaid rule of caution
— which is not to be treated as a rule of law — in mind,
said that the evidence of such a witness is to be rejected
enbloc.”
(Emphasis Provided)
27. An examination of the cases referred above shows that there
can be no doubt about the fact that the evidence of a witness,
who has been cross-examined by the side which produced
him/her, cannot be totally discarded [Also see:Neeraj Dutta v.
State (NCT of Delhi), (2023) 4 SCC 731].
28. It may also be worthwhile to mention here that by the
Criminal Law Amendment Act of 2005, sub-section 2 was added
to section 154 of the Evidence Act. The amended section 154 of
the Evidence Act now reads as under:
154. Question by party to his own witness. — (1) The
Court may, in its discretion, permit the person who calls
a witness to put any
questions to him which might be put in cross-
examination by the adverse party.
(2) Nothing in this section shall disentitle the person so
permitted under sub-section (1), to rely on any part of the
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evidence of such witness.
(Emphasis Provided)
29. By way of the above amendment, the position which had
been
reiterated by this Court has now come in the statute itself.
30. The word ‘hostile’ or ‘hostile witness’ has not been used
anywhere in the Evidence Act. The logic behind this exclusion
seems to be that the declaration of witness as ‘hostile witness’
carries a specific significance under the English law, from where
this term has been derived, where liberty is only granted to a side
to cross-examine its own witness when such declaration of
‘hostility’ is made. The position in India is different and here it is
left to the discretion of the Court to allow a party to cross-
examine its own witness, regardless of a declaration of
‘hostility’. This has been explained by this Court in Sat Paul:
“38. To steer clear of the controversy over the meaning of
the terms “hostile” witness, “adverse” witness,
“unfavourable” witness which had given rise to
considerable difficulty and conflict of opinion in
England, the authors of the Indian Evidence Act, 1872
seem to have advisedly avoided the use of any of those
terms so that, in India, the grant of permission to cross-
examine his own witness by a party is not conditional on
the witness being declared “adverse” or “hostile”.
Whether it be the grant of permission under Section 142
to put leading questions, or the leave under Section 154
to ask questions which might be put in cross-examination
by the adverse party, the Indian Evidence Act leaves the
matter entirely to the discretion of the court (see the
observations of Sir Lawrence Jenkins in Baikuntha Nath
v. Prasannamoyi [AIR 1922 PC 409: 72IC 286]). The
discretion conferred by Section 154 on the court is
unqualified and untrammelled and is apart from any
question of “hostility”. It is to be liberally exercised
whenever the court from the witnesses demeanour,
temper, attitude, bearing, or the tenor and tendency of his
answers, or from a perusal of his previous inconsistent
statement, or otherwise, thinks that the grant of such
permission is expedient to extract the truth and to do
justice. The grant of such permission does not amount to
an adjudication by the court as to the veracity of the
witness. Therefore, in the order granting such permission,
it is preferable to avoid the use of such expressions, such
as “declared hostile”, “declared unfavourable”, the
significance of which is still not free from the historical
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cobwebs which, in their wake bring a misleading legacy
of confusion, and conflict that had so long vexed the
English Courts.”
(Emphasis Provided)
31. The phrase ‘hostile witness’ is commonly used in criminal
jurisprudence and court proceedings. We too cannot escape the
blame of using the term ‘hostile witness’ in our judgment. We do
it for pragmatic reasons. Some words like ‘hostile witness’ in this
case are now a part of our legal vocabulary. There is no point in
inventing or substituting new words or phrases, at least in the
present case, and we leave that for the future. But what is
necessary, however, is to explain the meaning of the term as it is
now to be understood. The phrase ‘hostile witness’ has come to
be used for a witness who gives a statement contrary to the story
of the side for which he/she is a witness. All the same, because a
witness has supported some, though not all, aspects of a case, it
would not automatically mean that this witness has to be declared
‘hostile’. A party can cross-examine its own witness under
Section 154 Evidence Act, even without getting a declaration of
‘hostility’. The only restriction to cross-examination under
Section 154 Evidence Act is that the party,who seeks to cross-
examine its own witness, must obtain the leave of the Court.
Whether there is a declaration of ‘hostility’ or not, one thing is
clear that evidence of witness, who has been cross-examined
under Section 154 Evidence Act by the party who called such
witness, cannot be washed off entirely and it is for the Court to
see what can be retrieved from such evidence.
32. This can be understood from another aspect. We shall now
refer to the definition of the term ‘evidence’ given under Section
3 of the Evidence Act. It reads as follows:
“Evidence” – “Evidence” means and includes – (1) all
statements which the Court permits or requires to be
made before it by witnesses, in relation to matters of fact
under inquiry; such statements are called oral evidence;
(2) all documents including electronic records produced
for the inspection of the Court; such document are called
documentary evidence.”
(Emphasis Provided)
33. The statements made by a witness in Court, including in
cross-examination, either conducted by the opposite party or by
the party who produced the witness, would come under the
definition of ‘evidence’ under Section 3 of the Evidence Act,
since this evidence has come before the Court with its
permission. Moreover, there is no specific bar under the
Evidence Act which mandates that such evidence has to be
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discarded. Thus, it would form part of the entire evidence which
the Court can examine while arriving at its decision, and it is for
the Court to determine what value has to be given to that piece of
evidence or how such evidence has to be used in a given case.
34. Viewed from a different perspective, the rejection of the
entire testimony of a prosecution witness, who has been cross-
examined by the prosecution, would not only harm the case of
the prosecution but perhaps also of the defence in a given case.
This is because as the law stands today, the benefit of the
testimony of such witness can be taken by both the prosecution
and the defence, allowing them to use it to build their case [See:
Paulmeli v. State of T.N. (2014) 13 SCC 90, Ramesh Harijan v.
State of U.P. (2012) 5 SCC 777]. In any case, ultimately, it will
be the cause of justice that will suffer if the testimony of such
witness is totally discarded. It is, therefore, rightly left to the
discretion of the Court to test the evidentiary value of such a
testimony.
35. Here, we may also take note of Section 155 of the Evidence
Act50 which allows a party, with permission of the Court, to
impeach the credibility of its own witness as per the procedure
laid down therein.
36. It is though trite and much overstated but the maxim “falsus
in uno, falsus in omnibus”51, is not applicable to our criminal
justice system. It is for the Court to distinguish the wheat from
the chaff while dealing with the depositions of a hostile witness.
Courts can rely upon that part of the deposition of a hostile
witness which is corroborated by other evidence on record. This
Court in Bhajju v. State of Madhya Pradesh (2012) 4 SCC 327
discussed the worth of the evidence of a hostile witness in the
following words:
“36. It is settled law that the evidence of hostile witnesses can
also be relied upon by the prosecution to the extent to which it
supports the prosecution version of the incident. The evidence of
such witnesses cannot be treated as washed off the records, it
remains admissible in trial and there is no legal bar to base the
conviction of the accused upon such testimony, if corroborated50 155. Impeaching credit of witness: The credit of a witness may be impeached in the following
ways by the adverse party, or, with the consent of the Court, by the party who calls him:
(1) By the evidence of persons who testify that they, from their knowledge of the
witness, believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has accepted the offer of a bribe, or
has received any other corrupt inducement to give his evidence;
(3) By proof of former statements inconsistent with any part of his evidence which is
liable to be contradicted…
51 false in one thing, false in everything.
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by other reliable evidence…”
If part of the evidence of a hostile witness corroborates with
other reliable evidence, then that part of the evidence is
admissible. Once a prosecution witness has been declared hostile
and then cross-examined by the prosecution, then it is for the
Court to evaluate the veracity of the testimony. There can be
several reasons for a witness to turn hostile and the court must
also look into these factors while evaluating the evidence given
by a hostile witness. It is an uncomfortable reality in our criminal
Courts for a prosecution witness to turn hostile. But then the
purpose of a Trial Court is to go to the truth of the matter.
Whatever evidence is there before the Court must be examined,
tested, corroborated (whenever necessary), before a verdict can
be finally given.”
vi) The defence has not elicited any response from the witness to
discredit him on his assertions in the statement under sec 164 Cr.P.C
which he confirmed before deposing before the Court. Nothing has been
elicited during cross-examination to show that statement Ex. PW45/A
was obtained under any duress and was not voluntary. The witness is the
son of accused Dev Raj (since deceased) and brother of accused Rajesh
Kumar Khatri. Therefore, his natural inclination to protect them is the
most plausible reason for him to have resiled before this Court from
identifying the handwritings on the contentious minutes of the General
Body Meetings and the Managing Committee Meetings as well as entries
in the Membership Register (Ex. PW10/A (D-12)). Therefore, in the facts
and circumstances of the case, there is no reason to completely discard
the statement of the witness. His statement Ex. PW45/A, contents of
which he affirmed before the Court demonstrates that minutes of meeting
dated 10.10.1994 is fabricated as his aunts Ms. Premlata and Ms. Madhu
who are signatories to the same had not attended it. From his statement,
it has also been established that his sister Ms. Meenakshi Fialok (PW-16)
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and accused Rajesh Kumar Khatri (his brother) were introduced as
members of the Society in the year 1999 only and not in 1994. He has
categorically stated that the Society was non-functional in the year 1994.
The said contentions remained un-controverted. Therefore, this further
corroborates the assertions of the prosecution that material minutes of
Managing Committee meetings dated 31.07.1994 (Ex.PW13/D1) and
dated 12.09.1994 (Ex.PW13/Z13), 10.10.1994 (Mark AB.), 06.11.1994
and 16.12.1994 in-specific, are fabricated
vii) Though, not the witnesses of the prosecution in identifying the
handwriting on minutes of meetings dated 31.07.1994 (Ex.PW13/D1)
and dated 12.09.1994 (Ex.PW13/Z13), cross-examination of Smt.
Sudarshan Kumari (PW-13) and Smt. Madhu (PW-38) has been
conducted on behalf of accused Rajesh Kumar Khatri to which they have
stated that the hand writings on the minutes of meetings are not of the
accused. But, the said cross-examination is beyond the examination in
chief and both the said witnesses are interested witnesses being the
relative of accused Rajesh Kumar Khatri. Therefore, the Court is not
inclined to give much credence to their testimonies favouring accused
Rajesh Kumar Khatri qua minutes of meeting dated 31.07.1994
(Ex.PW13/D1) and minutes of meeting dated 12.09.1994
(Ex.PW13/Z13).
viii) Since, Sh. Rajesh Aggarwal (PW-1) and Sh. Arun Kumar (PW-45)
did not support the case of the prosecution in identifying the
handwritings on the minutes of meetings under scrutiny, the prosecution
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now only has the handwriting expert’s report Ex. PW40/C proved
through Sh. B.P. Mishra (PW-40) and statements of Sh. Sudhir Kant
(PW-42), Sh. V.S. Dagar (PW-43), Sh. Suresh Kullar (PW-44) and
Inspector Richhpal Singh (PW-41) to fall back upon.
ix) Before the Court now proceeds to delve upon the report of the
handwriting expert, it deems it conducive to recapitulate the principles of
law which are to be kept in mind while appreciating the said report.
x) 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 , State of H.P. Vs.
Jailal and ors (Supra), Ramesh Chandra Agrawal V. Regency Hospital
Limited52.
xi) In Fakhruddin Vs. State of Madhya Pradesh53, qua proof of identity
52 AIR 2000 Supreme Court 806
53 AIR 1967 SC 1326
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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
observation that it is safe to accept the opinion whether of the expert or
other witness.”
emphasis supplied.
xii) In Ram Naraian Vs. State of Uttar Pradesh54, the Apex Court held as
under:
54 1973 2 SCC 86
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“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. …”
xiii) Also, in Murari Lal Vs. State of Madhya Pradesh55 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 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.”
xiv) However, while acting on the report of a handwriting expert, the
55 1980, SCC (1) 704
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caution to be exercised has been clearly explained in Devi Prasad Vs.
State 56 as under :
“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.”
Emphasis supplied
xv) Also, in Padum Kumar Vs. State of UP 57 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
56 1964 SCC Online All 381
57 (2020) 3 SCC 35
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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
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.”
xvi) The cumulative challenge to the handwriting expert’s report Ex.
PW40/C on the basis of arguments led by the defence counsels can be
identified as under :
a) That Sh. B.P. Mishra (PW-40) does not have the experience and
qualification to be classified as an expert.
b) That the report does not specify the scientific tools and
mechanisms employed to study the documents to arrive at the opinion.
c) That the identity of the documents examined by the expert is
doubtful as documents examined by him were endorsed with a different
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case number (DXC-47/07 as opposed to the present case DXC-46/07)
and therefore, his opinion cannot be relied upon. (Reliance is placed
upon Amarjit Singh Vs. State of U.P.(Supra).
d) That specimen writings are of the accused persons has not been
established beyond reasonable doubts. Reliance is placed upon State of
Rajasthan Vs. J.P. Sharma (Supra).
e) That Reasons (Ex. PW40/S) have been subsequently produced and
not contemporaneously prepared alongwith Reasons. The secondary
material upon which the Reasons are premised were not produced before
the Court. Therefore, the Reasons cannot be relied upon to appreciate the
opinions arrived at.
xvii) So far as the defence of lack of qualification and experience of the
expert is concerned, it can be gathered from record that Sh. B.P. Mishra
(PW-40) was appointed as Assistant Central Intelligence Officer on
10.03.1986 and received guided training under Government Examiner,
Sh. Santok Singh for identification of forgery and authorship of
questioned documents. He also received training from National Institute
of Forensic Science and Criminology. During that period, he examined
several cases of forgery. Thereafter, he joined as Assistant Government
Examiner on 17.04.1997 and was finally promoted Dy. Director, GEQD,
Kolkata on 26.10.2015. He deposed that he had an experience of
examining thousands of cases and submission of report. His
qualification was sought to be doubted for not holding a specialized
degree in the said field. However, it has been explained by him that
GEQD is the only government institution which caters to the need of
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examination of documents and the qualification has more to do with
practical work than theoretical knowledge. Therefore, it cannot be said
that the defence has been able to prove that Sh. B.P. Mishra (PW-40) is
not a qualified expert.
xviii) The second reason urged before the Court to discard report Ex.
PW40/C and Reasons Ex. PW40/S is that they are silent on the scientific
tools and principles adopted while examination of the documents.
However, during his examination in chief, it has been deposed by the
witness that “All these documents were compared by utilizing the
principles of scientific examination and detection of forgery with the
help of the scientific instruments such as lenses of various wavelength
and microscope with various type of lighting arrangements…”. So far as
the scientific principles are concerned, Ld. Counsel for accused Anil
Kumar has conducted a detailed cross-examination on 20.09.2022 during
which the witness asserted that his opinion was on cumulative
examination of the questioned and sample documents, mentioned that
both questioned and specimen writings were of same movement
(referring to wrist or finger or forearm movement), mentioned about the
pressure, angle, inclination / slant etc. though not specifically.
xix) It has been rightly pointed out during cross-examination on
20.09.2022 that endorsement on each page of the register PW11/Z6
(D-15) containing minutes of meeting from 15.01.1995 to 10.12.2000
(having Q1 to Q220) has been endorsed as DXC 47/07 instead of DXC
46/07 which was the case number assigned to examination of documents
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in this matter. During cross-examination, though it was sought to be
explained that the mistake was manual however, Ms. K.B. Jena who had
examined the documents first or the Assistant who had endorsed the
documents have not been examined to explain the discrepancy. No
corrigendum was ever issued and it was also not clarified if the mistake
was possible considering that case DXC 47/07 was either examined by
Ms. K.B. Jena or the witness himself. Therefore, so far as examination of
D-15 is concerned, since a doubt has been raised on the identity of
Proceedings Register (Ex. PW11/Z6) (D-15)) purportedly examined, to
that extent, it is not safe to rely upon the report of the handwriting expert.
xx) For accused Sunil Kumar, accused K.K. Wadhwa, accused Rajesh
Kumar Khatri and accused Ravi Saluja doubt has been sought to be
created by the Ld. Defence Counsels on specimen writings by relying
upon the cross-examination of the Investigating Officer that he did not
remember that the process of taking specimen writings took how how
many and, on his failure, to remember how many independent witnesses
were present. However, considering that the examination of the
Investigating Officer was conducted in August, 2023, it is not humanly
possible for him to have recollected the said facts. Therefore, to such
inconsistencies, this Court does not wish to give any weight-age. During
examination under Section 313 Cr.P.C. when specimen writings were put
to accused Devender Pal Singh, accused Ravi Saluja, accused Rajesh
Kumar Khatri, they did not deny the specimen writings. Accused Ravi
Saluja claimed duress but did not lead any affirmative evidence to prove
it. Considering that independent witnesses Sh. Sudhir Kant (PW-42) and
CBI vs K.K. Wadhwa & Ors.
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Sh. V.S. Dagar (PW-43) have deposed during cross-examination that the
individuals whose hand-writings had been taken had not been introduced
to them and they also have not identified the accused persons whose
sample writings were taken in their presence in the Court, the defence on
behalf of accused Sunil Kumar, accused Anil Kumar and accused K.K.
Wadhwa on the identity of their specimen writings.
xxi) Finally, the Reasons Ex. PW40/S have to satisfy this Court that the
Opinion Ex. PW40/C has been arrived at on the basis of sound scientific
principles on analysis of the documents. It therefore, requires careful
probing and examination. However, the defence through cross-
examination has elicited responses from the witness which demonstrate
that the Reason was prepared in May, 2021 whereas the Opinion Ex.
PW40/C (mentioned as Ex. PW44/C) is dated 11.12.2007. At the point
of time Reasons have been prepared, the expert was not seized of the
original documents. He stated that he had prepared the report on the basis
of rough notes and photographs however, the said secondary material
was not produced before the Court to appreciate whether on account of
lapse almost 15 years, there were no discrepancies on the documents
considered during preparation of Opinion and Reasons. Therefore,
prudence requires the Court to be circumspect from acting upon the
report of the handwriting expert.
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(xxii) Here, it would be relevant to also consider the testimony of Sh.
Deepak Jain (DW-2) examined by accused Rajesh Kumar Khatri who
also tendered his report Ex. DW2/A (Colly) whereby he opined that
Q-222, Q-261 to Q-263, Q-272 to Q-274, Q-276 , Q-278, Q-280, Q-1380
and Q-1382 are not in the hand-writing of the accused Rajesh Kumar
Khatri. However, it is to be borne in mind that the comparison of
admitted writing and the questioned writings were of a difference of 24
years and the opinion is premised on the experts prima facie view on the
basis of style, fashion, manner, pattern and design being similar despite
lapse of time though he admitted during cross-examination that from
childhood till adulthood, variation in handwriting occurs. He also
admitted that he did not compare the sample handwriting of accused
Rajesh Kumar Khatri from S-290 to S-312 with the questioned
documents. To the question of the Court as to what determinative
factors were considered to arrive at a prima facie view, whether variation
in the writings of accused Rajesh Kumar Khatri was within the range of
natural (of 10% as disclosed by him to be the standard ) despite lapse of
24 years, he admitted that calculation done in that regard was not brought
on record by him. Therefore, his prima facie view does not convince this
Court. Thus, as contemporaneous admitted writings would always be
preferable and best suited for comparison, this Court is not inclined to
rely upon the report of Sh. Deepak Jain (DW-2).
(xxiii). In view of the above detailed discussion, the prosecution has
established that the Proceedings Register, Agenda Notices and their proof
of service have been fabricated, ante-dated and forged but authorship of
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the forgery could not be conclusively established.
c. Applications for membership (in Files 43/I (colly), Ex.PW40/J
(colly) and Ex.PW40/K (colly)) and Affidavits of purported members
(pages 405/C to 440/C in file Ex. PW40/D (Colly) (D-3, Vol-II))
(i) To prove the forgery of applications for membership and affidavit
the prosecution has relied upon oral testimonies of witnesses namely Sh.
Durgesh Yadav (PW-4), Sh. Dinesh Kumar Gulati (PW-6), Sh. Anil
Kumar Gulati (PW-7), Ms. Shama (PW-8), Sh. Nahar Singh (PW-14),
Sh. Daulat Ram (PW-20), Sh. Deepak Bajaj (PW-23), Sh. Naresh Kumar
(PW-32), Sh. Vinod Kumar (PW-33), Sh. Surender Kumar (PW-34), Ms.
Sunita (PW-35), Sh. Rajesh Yadav (PW-37), Shanti Devi (PW-12),
Vijender Singh (PW-15) and Suresh Kumar (PW-26) apart from the
handwriting expert’s Report Ex. PW40/C
(ii) Of the abovementioned witnesses, since Sh. Dinesh Gulati (PW-6),
Sh. Anil Gulati (PW-7), Sh. Daulat Ram (PW-20), Sh. Deepak Bajaj
(PW-23), Sh. Naresh Kumar (PW-32) and Sh. Surender Kumar (PW-34)
have been shown to have been introduced as members in early 1980s i.e.
prior to the period since when conspiracy has been alleged, their
introduction as members, rightly or wrongly is not being considered. Smt
Sunita (PW35), Ms. Shanti Devi (PW-12) and Sh. Suresh Kumar
(PW-26) have not supported the case of the prosecution to the effect that
their applications have been forged or ante dated.
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(iii) From the testimonies of Sh. Durgesh Yadav (PW-4), Ms. Shama
(PW-8), Sh. Nahar Singh (PW-14), Sh. Vinod Kumar (PW-33), Sh.
Rajesh Yadav (PW-37) and Sh. Vijender Singh (PW-15), it has been
established that applications in their name Ex.PW4/A dated 03.11.1994,
Ex.PW8/A dated 12.12.1994, Ex.PW14/A dated 11.12.1994, Ex.PW33/B
dated 02.11.1994, Ex.PW37/A dated 12.12.1994 and Ex.PW15/A dated
11.12.1994 respectively, it has been conclusively established that the
aforementioned applications have not been signed and moved by them
therefore, they are forged. Further, the aforesaid witnesses have proved
that affidavits Ex.PW4/D dated 10.05.2000, Ex.PW8/B dated
10.05.2000, Ex.PW14/E dated 10.05.2000, Ex.PW33/A dated 10.05.2000
and Ex.PW15/B dated 10.05.2000, respectively, affirming their eligibility
for membership have been forged as they have not been signed by them.
iv). So far as the hand-writing expert’s report Ex.PW40/C and reason
Ex.PW40/S is concerned, through the detailed discussion above, the
Court has already observed why it is circumspect to act upon the report
Ex.PW40/C and reason Ex.PW40/S, therefore, authorship of forgery has
not been established
d. Photocopies of applications for resignation (pages 393/C to 350/C
in File Ex.PW40/D (colly) (also D-3, Vol-II))(43 applications) and
Photocopy of Cash Receipts (pages 349/C to 306/C in File Ex.PW40/D
(colly) (also D-3, Vol-II)) (44 receipts).
i). As per the Prosecution, the following resignations have been
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falsely accepted on 31.07.1994, 12.09.1994 and 02.07.2000 as during
investigation it has been found that the resignation letters were forged
and the meetings had been fabricated:
S.No. M.No. Name of the Member Meeting
Date Shown
1 08 Naresh Kumar (PW-32) 31.07.1994
2 23 Veena 31.07.1994
3 39 Chatter Singh 31.07.1994
4 42 Dharam Pal 31.07.1994
5 125 Ramesh Kumar Goel 12.09.1994
6 105 Madan Lal Saini 12.09.1994
7 95 Ram Pyari 12.09.1994
8 75 Ram Chandra (PW-24) 12.09.1994
9 45 Anil Kumar Gulati (PW-7) 12.09.1994
10 50 Dev Raj 12.09.1994
11 60 Lalita Mahi 12.09.1994
12 70 Baldev Arora 12.09.1994
13 80 Avtar Singh 12.09.1994
14 90 Sukhdev Singh 12.09.1994
15 100 Vinod Kumar Sikri 12.09.1994
16 110 Samboo Saran Singh 12.09.1994
17 48 Surinder Kumar (PW-34) 12.09.1994
18 47 Yograj Khattar 12.09.1994
19 57 Deepak Bajaj (PW-23) 12.09.1994
20 62 Kasturi Lal 12.09.1994
21 67 Nirmal Sikka 12.09.1994
22 72 Narinder Sagar 12.09.1994
23 82 Sushil Kumar 12.09.1994
24 87 Bhupinder Singh 12.09.1994
25 92 Sudesh Kumari 12.09.1994
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26 97 Laxman Dass Puri 12.09.1994
27 98 Kamla 12.09.1994
28 04 Massa Ram 12.09.1994
29 15 Vinod Kumar (PW-33) 12.09.1994
30 121 Shashi Mehta 02.07.2000
31 122 Kishan Chand 02.07.2000
32 123 Nishi Goel 02.07.2000
33 124 Ram Singh Sure 02.07.2000
34 126 Prem Chand 02.07.2000
35 127 Bhupinder Kaur 02.07.2000
36 128 Sanjeev Kumar 02.07.2000
ii). Of the abovementioned members who are shown to have resigned,
the prosecution has examined Sh. Anil Kumar Gulati (PW-7), Sh.
Deepak Bajaj (PW-23), Sh. Ram Chandra (PW-24), Sh. Naresh Kumar
(PW-32), Sh. Vinod Kumar (PW-33) and Sh. Surender Kumar (PW-34).
Sh. Anil Kumar Gulati (PW-7) have specifically deposed that resignation
letter dated 27.08.1994 (Ex. PW7/C) and cash receipt dated 27.09.1994
(Ex. PW7/D) have not been signed by him. Sh. Deepak Bajaj (PW-23)
has testified that resignation (Ex. PW23/B) and cash receipt dated
27.09.1994 (Ex. PW23/C) have not been signed by him. Sh. Ram
Chandra (PW-24) who was one of the founding members of the Society
has also stated that he had never resigned from membership and
application dated 27.08.1984 (Ex. PW24/C) and receipt dated 28.09.1994
(Ex. PW24/D) do not bear his signatures. The statements of Sh. Naresh
Kumar (PW-32), Sh. Vinod Kumar (PW-33) and Sh. Surender Kumar
(PW-34) are on the same lines that neither did they become members of
the Society nor could have resigned from it. They have denied that
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resignation letters Ex. PW32/C, Ex. PW33/C and Ex. PW34/A,
respectively as well as receipts Ex. PW32/D, Ex. PW33/D and Ex.
PW34/B, respectively are not signed by them. From the cross-
examination of the aforesaid witnesses on the aspect of resignation being
fake, the defence has not been able to elicit any response which lends
credence to the defence that the aforesaid witnesses have not truthfully
deposed that they had not resigned from the membership of the Society.
iii). Further, it is also the case of the prosecution that Smt Asha Rani
(PW-2), Sh. Vinod Katyal (PW-3), Sh. Umesh Kumar (PW-5), Sh.
Dinesh Kumar Gulati (PW-6), Ms. Shama (PW-8), Sh. Ashok Kumar
(PW-10), Smt Sudarshan Kumari (PW-13), Ms. Meenakshi Fialok
(PW-16), Sh. Rajesh Jaggi (PW-21), Sh. Tajinder Singh (PW-22), Ms.
Pushpa Sagar (PW-27), Sh. Ramesh Kumar Jain (PW-30), Sh. Yashpal
Jain (PW-31) and Smt. Madhu (PW-38) whose resignations had been
accepted post the revival of the Society are also fabricated. However,
Smt. Sudarshan Kumari (PW-13), Ms. Meenakshi Fialok (PW-16), Sh.
Rajesh Jaggi (PW-21) and Smt. Madhu (PW-38) have not supported the
case of prosecution that applications for withdrawal Ex. PW13/D,
Ex.PW16/E, Ex. PW21/C and Ex. PW38/A, respectively are forged. But
from the testimony of the above remaining witnesses, it has been
established that resignation letters Ex. PW2/B, Ex. PW3/B, Ex. PW5/D,
Ex. PW6/C, Ex. PW8/C, Ex. PW10/G, Ex. PW22/E, Ex. PW27/C, EX.
PW30/B and Ex. PW31/B, respectively have not been signed and
presented by them and are therefore, forged. Similarly, the cash receipts
Ex. PW2/E, Ex. PW3/C, Ex. PW5/E, Ex. PW6/D, Ex. PW8/D, Ex.
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PW10/H, Ex. PW22/F, Ex. PW27/D, Ex. PW30/C and Ex. PW31/C,
respectively have not been signed by them and are therefore, forged.
iv). Be that it may, once again, the authorship on the aforementioned
forged application forms and cash receipts has not been established as
the hand-writing expert’s report Ex.PW40/C has failed to stand the test
of its acceptance.
e. Membership Register (EX. PW41/F (Colly) also D-13)) and
Consolidated list of members (Ex. PW11/Z119)
(i) It is also the case of the prosecution that Membership Register
(Ex.PW41/F) is forged and fabricated as not only the signatures against
the enrollments and resignations have been forged but also in view of the
minutes of meeting discussed above, the entries in the register have been
fabricated. In view of the statements of Sh. Durgesh Yadav (PW-4), Sh.
Dinesh Kumar Gulati (PW-6), Ms. Shama (PW-8), Sh. Nahar Singh
(PW-14), Sh. Daulat Ram (PW-20), Sh. Vinod Kumar (PW-33), Sh.
Surender Kumar (PW-34), Ms. Sunita (PW-35) and Sh. Rajesh Yadav
(PW-37) who have been shown at serial nos. 84, 28, 92, 87, 49, 82, 96,
94, and 88, respectively (as per Consolidated List of Members Ex.
PW11/Z119) having deposed that they never became member of the
Society, it has been established that entries qua them have been
fabricated and signatures against their name have been forged. Also, the
following resignations have been incorrectly mentioned as it is apparent
from the testimonies of abovementioned witnesses and therefore, have
been fabricated. Therefore, from the evidence led by the Prosecution it
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has been conclusively established that the membership register contains
false entries and is therefore, is a fabricated document.
ii). Consolidated list of members (Ex.PW11/Z119) has also been
assailed to be a fabricated list. The list tendered in evidence is a
photocopy in File No.F7 (23)2001/GH/DDA annexed along with letter
Mark PW39/A which was sent by Sh. B.M. Sethi, Deputy Registrar
(Policy) to the Deputy Director (GH), DDA to intimate the consolidated
list duly approved by the competent authority of Societies mentioned
therein, including Lok Priya Vihar, CGHS. An objection has been taken
that the said document is a photocopy and therefore, inadmissible in
evidence. However, in File of the RCS (D-19) which is Ex.PW40/G
(colly), the final list of members for allotment of land submitted for
approval by the Society to Assistant Registrar (South), RCS, in original
is on record and the Court has compared the two documents and they are
enlisting same members. Therefore, as the original is also part of judicial
record, therefore, the objection stands overruled. Here, however, the
lackadaisical and casual approach of the Prosecution needs to be called
out so that in future, the Prosecution is vigilant while conducting trials.
iii). The Consolidated list of members is the culmination of
enrollments and resignations over the relevant period of time. Out of the
105 enlisted members, the Prosecution has examined Sh. Durgesh Yadav
(PW-4), Sh. Dinesh Kumar Gulati (PW-6), Sh. Anil Kumar Gulati
(PW-7), Ms. Shama (PW-8), Sh. Nahar Singh (PW-14), Sh. Daulat Ram
(PW-20), Sh. Deepak Bajaj (PW-23), Sh. Naresh Kumar (PW-32), Sh.
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Vinod Kumar (PW-33), Sh. Surender Kumar (PW-34) and Sh. Rajesh
Yadav (PW-37),who have denied having ever become a member. Smt.
Asha Rani (PW-2), Sh. Vinod Katyal (PW-3), Sh. Umesh Kumar (PW-5),
Sh. Ashok Kumar (PW-10), Sh. Tejinder Singh (PW-22), Sh. Ram
Chandra (PW-24), Ms. Pushpa Sagar (PW-27), Sh. Ramesh Kumar Jain
(PW-30) and Sh. Yashpal Jain (PW-31) have denied having resigned
from membership. Their examination is sufficient to prove that the
entries made in the membership register is not only fabricated but also
forged. Also, of them, accused Dev Raj (since deceased) (M.No. 1),
accused Sunil Kumar (M.No. 142), accused Ravi Saluja (M.No. 149) and
accused Devender Pal Singh (M.No. 157) are also featuring in the list at
Serial no. 1, 83, 90 and 98. So far as introduction of accused Ravi Saluja
and accused Devender Pal Singh as the members of the Society is
concerned, the same has been shown vide meeting dated 16.12.1994.
But, the fabrication of the said meeting has been established to the
satisfaction of the Court and therefore, the consequent entries in the
Membership Register on the strength of the Managing Committee
Meeting dated 16.12.1994 are also fabricated. Also, of the seven
members (from Serial no. 99 to 105) shown to have been introduced
through Managing Committee dated 02.07.2000, the Prosecution has
examined Sh. Kewal Krishan (PW-25), Sh. Sanjay Nandwani (PW-28)
and Sh. Vimal Johar (PW-36). But, from their examination, the
Prosecution has not been able to elicit much to serve its stance. One Sh.
Narshing Dass (M.No. 38) is also featuring in the list at Serial no. 23.
However, from the testimony of Sh. Arun Kumar (PW-45), it has been
established that he had expired in the year 1986 (18.11.1986 as per Mark
CBI vs K.K. Wadhwa & Ors.
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PW45/1) and therefore, could not have continued to remain a member.
He was the father-in-law of accused Dev Raj (since deceased) and his
death certificate has been tendered in evidence as Mark PW45/1. Hence,
the Consolidated List of Members (Ex. PW11/Z119) for allotment of
land has been fabricated.
(iv) So far as, entries in the Membership Register (Ex. PW10/A) is
concerned, the Sh. Arun Kumar (PW-45) has denied that entries from sl
nos. 129 to Sl no. 135 is in the hand-writing of his brother accused
Rajesh Kumar Khatri. He also denied that entries from sl no. 137
onwards have been made by accused K.K. Wadhwa. Though not being
acted upon even the hand-writing expert’s report Ex.PW44/C is silent
whether entries from Q-282 to Q-361 in the membership register were in
the hand-writing of accused K.K. Wadhwa or accused Anil Kumar and
whether Q-268 to Q-271 in the same register could be attributed to
accused Rajesh Kumar Khatri.
33.7 So far as the intention to defraud is concerned, the very factum
that the above discussed fabricated, false and forged documents had been
presented at the office of the RCS for no other reason but to seek revival
of the Society and to get the consolidated list of members approved for
allotment of land by DDA at subsidized rates, the acts are suggestive of
the intention to defraud.
33.8 So far as, Section 471 Cr.P.C. is concerned, it has to be established
beyond reasonable doubts that :
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(a) There was fraudulent / dishonest use of a document as genuine
(b) By the accused persons with knowledge or reason to believe that
the document is a forged one.
33.9 Substantive charge for the said offence has only been made qua
accused Devender Pal Singh. So far as, genuineness of Membership
Register (Ex. PW10/A), Proceedings Registers (Ex. PW10/B and Ex.
PW11/Z6), List of Members (Ex. PW11/Z119), Agenda Notices,
Applications (Ex. PW4/A, Ex. PW8/A, Ex. PW14/A, Ex. PW33/B, Ex.
PW37/A and Ex. PW15/A), Affidavits (Ex. PW4/D, Ex. PW8/B, Ex.
PW14/E, Ex. PW33/A and Ex. PW15/B), Resignation Letters (Ex. PW
2/B, Ex. PW 3/B, Ex. PW 5/D, Ex. PW 6/C, Ex. PW 8/C, Ex. PW 10/G,
Ex. PW 22/E, Ex. PW 27/C, Ex. PW 30/B, Ex. PW31/B, Ex. PW32/C,
Ex. PW33/C and Ex. PW34/C) and Cash Receipts (Ex. PW2/E, Ex.
PW3/E, Ex. PW 5/E, Ex. PW6/D, Ex. PW8/D, Ex. PW10/H, Ex.
PW22/F, Ex. PW27/D, Ex. PW30/C and Ex. PW31/C) referred to
above are concerned, it has been unequivocally established that they had
been fabricated and forged. Considering that the accused was elected as
the President of the Society as per minutes of General Body Meeting
dated 22.08.1999 (Ex. PW12/E) and continued to officiate as such during
the period when application for cancellation of winding up order (Ex.
PW19/E), approval of fake resignations and enrollments, approval of
Consolidated List of Members was managed, it is established that he was
in control of the management of the affairs of the Society, during which
proceedings were fabricated to accept resignations and enroll members
with the oblique motive to demonstrate that the Society continued to be
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active despite the liquidation order dated 12.02.1992. Hence, it is clearly
established that he had complete knowledge about the affairs of the
Society including fabrication of the records which were willfully
presented on behalf of the the Society before the Office of RCS by co-
accused Sunil Kumar on 26.05.2000 and 29.05.2000 and by accused
Devender Pal Singh himself accompanied with co-accused Sunil Kumar
on 19.06.2000. Thereafter, the accused also submitted affidavit on
22.06.2000. Further, on 02.08.2000, co-accused Sunil Kumar also
produced records for verification when clarification was sought qua
approval of enrollments / resignations and approval of Consolidated List
of Members. Accused Devender Pal Singh also relied upon fabricated
Minutes of Meeting dated 23.07.2000 to explain that enrollments and
resignations allowed by the previous Managing Committee had been
approved by the his Executive Committee. Therefore, it has been
conclusively established that with fraudulent and dishonest intention,
accused Devender Pal Singh with knowledge that aforementioned
documents were forged / fabricated presented them before the Office of
RCS to obtain cancellation of winding up order, approval of
enrollments / resignation of members and approval of Consolidated List
of Members.
33.10 Further, accused K.K. Wadhwa and accused Ravi Saluja are also
facing trial for offences punishable under Section 467/468 IPC qua
which it has already been opined that the essential ingredients to affix
their authorship has not been established. However, the factum that
accused Ravi Saluja was the member of Managing Committee w.e.f.
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22.08.1999 till the illegal objectives of the accused persons were
achieved in reviving the Society and finalizing the Consolidated List of
Members, he is similarly placed as accused Devender Pal Singh for
having knowledge and reason to believe that the aforementioned
documents are false, fabricated and forged. He had also joined the
hearings before the RCS on 12.06.2000. Therefore, as Section 471 is
cognate to Section 467/468 and it has been proved that he had used the
forged documents as genuine with requisite knowledge or believe, he too
cannot escape the liability under Section 471 IPC.
ALLEGATIONS OF CHEATING THE OFFICE OF RCS BY
CANCELLATION OF LIQUIDATION ORDER QUA THE SOCIETY
AND THEREAFTER, SEEKING APPROVAL OF CONSOLIDATED
LIST OF MEMBERS WHICH WAS FORWARDED TO THE DDA ON
THE BASIS OF WHICH LAND WAS ALLOTTED TO THE SOCIETY,
ALL ON THE BASIS OF FORGED, FABRICATED AND FALSE
DOCUMENTS.
34. All the accused persons (except accused R.K. Srivastava and
accused P.N. Manchanda) are facing trial for substantive offence
punishable under section 420 IPC for having dishonestly and
fraudulently preparing the fake proceedings etc. with a motive to
fraudulently seek cancellation of liquidation order qua the Society and
thereafter, seeking approval of consolidated list of members which was
forwarded to the DDA on the basis of which land was allotted to the
Society, all on the basis of forged, fabricated and false documents. To
seek conviction under Section 420 IPC, the Prosecution is required to
establish the following ingredients beyond reasonable doubt:
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a) That the accused persons dishonestly and fraudulently;
b) Induced the office of RCS to act on forged and fabricated documents
to allow cancellation of liquidation order dated 29.06.2000 (Ex.
PW19/B) and approve the list of fabricated consolidated members, which
was then forwarded to DDA;
c) On the basis of which DDA was induced to process and allot land to
the Society at a subsidized rate.
34.1 The explanation to the Section also mentions that a dishonest
concealment of facts is a deception within the meaning of the Section. So
far as dishonest and fraudulent intention of the accused persons is
concerned it has been unequivocally established that application for
cancellation of winding up order Ex. PW19/E (page no. 256/C of file Ex.
PW40/E(colly) (D-3, Vol-III)), application for approval of enrollment
and resignation of members received on 27.07.2000 (at page no. 38 of
file Ex. PW40/G (colly) (D-19)) and letter dated 31.08.2000 (at page no.
36 of file Ex. PW40/G (colly) (D-19)) explaining that the acts of the
previous Managing Committee though illegal had been approved by the
Managing Committee meeting dated 23.07.2000 (Ex. PW1/Z-6) had
been moved on the basis of fabricated forged and false proceedings
register, application forms, resignation letters, cash receipts, consolidated
list of members, membership register. Hence, there was culpable mis-
representation of facts which amounts to deception and hence dishonest
and fraudulent intention is manifest. Purportedly, Ex. PW19/E and
explanation at page no. 36 of file Ex. PW40/G (colly) (D-19) have been
moved by the President accused Devinder Pal Singh. Application at page
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no. 38 of file Ex. PW40/G (colly) (D-19) has been moved by the
Secretary accused Sunil Kumar. The notings in file Ex. PW19/A
demonstrates that accused Devender Pal Singh, accused Sunil Kumar,
accused Anil Kumar and accused Ravi Saluja have also physically
appeared before the Office of RCS and presented the forged and
fabricated records. The aforesaid overt acts were backed by minutes of
meetings conducted where aforementioned persons were in the
Managing Committee and have been found to be fabricated. So far as
accused K.K. Wadhwa is concerned, his complicity with the co-
conspirators is evident from the fact that he continued to exercise
influence in the working of the Society as can be gathered from the
cumulative testimonies of Sh. Rajesh Aggarwal (PW-1), Sh. Rohit
Aggarwal (PW-11) and Sh. Arun Kumar (PW-45). On the basis of the
application supported by the aforementioned false, fabricated and forged
documents, order for cancellation of liquidation dated 29.06.2000 (Ex.
PW19/B) came to be passed. Thereafter, upon revival of the Society and
approval of a consolidated list of members yet again by way of fraud and
deceit (as already discussed in detail above), the office of RCS through
AR (Policy) wrote a letter recommending allotment of land to the
Society (Mark PW39/A). Therefore, the overwhelming evidence
establishing the inducement practised by them in seeking cancellation of
revival order, approval of false enrollments and resignations and
approval of false consolidated list of members which was forwarded to
DDA has been proved by the Prosecution.
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b). Thereafter, it has also been proved through the testimony of Sh.
Parasnath (PW-39) that demand cum allotment letter dated 13.02.2003
(Ex. PW39/A) was issued to the Society. Here, an objection was taken to
the mode of proof of the document however, no cross-examination has
been conducted to disprove that Sh. Parasnath had not dealt with the file
or was not acquainted with the signature of Sh. M.C. Singhal, Deputy
Director (GH) having working with him. Even otherwise, allotment of
land is not a disputed fact.
34.2 Hence, the prosecution has been able to establish beyond
reasonable doubt that accused K.K. Wadhwa, accused Anil Kumar,
accused Sunil Kumar, accused Devender Pal Singh and accused Ravi
Saluja have committed offence punishable under Section 420 IPC.
ALLEGATIONS OF COMMISSION OF OFFENCE BY PUBLIC
SERVANT UNDER SECTION 13(2) R/W 13(1)(D)(III) THE P.C. ACT
35. Accused R.K. Srivastava and Accused P.N. Manchanda have been
accused of conspiring or otherwise abusing their official position as
public servants to obtain/attempting to obtain pecuniary advantage
without any public interest by reviving the Society and approving the
freeze list of 105 members on the basis of forged documents without
checking their genuineness.
35.1 The challenge to the accusations is both on technical aspects as
well as on merits.
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35.2 The technical objections can be identified as under:
(a) That the trial is vitiated as no sanction under Section 197 Cr.P.C
had been obtained qua the accused persons.
(b) That the sanction order in favour of accused P.N. Manchanda
which is Ex.47/B is invalid for non-application of mind and having been
issued by an incompetent authority.
(a) Whether the trial is vitiated as no sanction under Section 197 Cr.P.C
had been obtained qua the accused persons?
35.3 To urge the same, much reliance has been placed upon the
discharge of Sh. Krishan Kumar who was also an accused herein being
the Joint Registrar of the relevant period. Reliance has been placed upon
order dated 21.08.2024 in Krishan Kumar Vs. CBI (supra) wherein, it
has been held as under:
12. In Rakesh Bhatnagar (supra), a Co-ordinate bench of this
Court observed that, according to the ratio laid down in A.
Srinivasa Reddy v. Rakesh Sharma, 2023 SCC OnLine SC 952,
the individual against whom the allegations are made must be a
‘Public Servant’ whose appointing authority is either the Central
Government or the State Government to be entitled to the
protection under Section 197 Cr. P.C., and this protection does
not extend to every public servant. In the present case, it is
undisputed that the petitioner is a DANICS officer and his
appointing authority is the Central/State Government. There is
equally no doubt in the mind of this Court that the allegations
against the petitioner pertain to offenses committed in the
discharge of his official duties, and as such, the rigors of Prof.
N.K. Ganguly v. CBI New Delhi, 2015 SCC OnLine SC 1205
shall apply in full. Therefore, it would be imperative for the
prosecution to have obtained sanction under Section 197 Cr. P.C.
before proceeding. In the absence of the appropriate sanction,
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the prosecution of the petitioner for the aforesaid offenses would
be untenable.
13. In Subramanian Swamy v. Manmohan Singh & Anr., 2012
(1) SCC 1041, the Supreme Court held that if a public servant is
accused of an offense related to any recommendation made or
decision taken while discharging official duties, then sanction
under Section 197 of the Cr.P.C. is required. Similarly, in Rakesh
Kumar Mishra vs. State of Bihar and Ors., AIR 2006 Supreme
Court 820, the Apex Court held that if the act is intrinsically
linked to official duties, sanction is required. However, if the act
has no connection with the duties of the public servant, then the
protection under Section 197 Cr.P.C. does not apply.
14. Besides this, all the facts of the present petition are identical
to those in the case decided by this Court in Rakesh Bhatnagar
(supra). Admittedly, the CBI has not obtained sanction under
Section 197 Cr.P.C.I consider that nothing would further detain
this court in deciding this petition as on the similar proposition
the petitioner has been discharged in Rakesh Bhatnagar (supra).
15. Hence, the petition is allowed. The impugned order dated
04.04.2012 is set aside. All the pending applications also stand
disposed of.
35.4 Court has also been led through order dated 22.11.2023 in
Rakesh Bhatnagar Vs. CBI (Supra) which was relied upon in Krishan
Kumar Vs. CBI (Supra). Also, attention of the Court was drawn to order
dated 03.12.2024 in SLP (Crl.) no. 16946/2024 whereby order in Rakesh
Bhatnagar Vs. CBI (Supra) now stands confirmed. It is pertinent to
mention here that Sh. Rakesh Bhatnagar was also a Joint Registrar in the
office of RCS and was an accused in a similar case of CBI Vs. Sri Chand
& Ors. (Arvind-CGHS) (RC No. 2A/2006/CBI/SCU-V/SCRII/CBI, N.
Delhi).
35.5 Thus, parity has been sought by the accused persons.
35.6 Per contra, when a specific query was put to the prosecution in
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regard to Rakesh Bhatnagar Vs. CBI (Supra) and Krishan Kumar Vs.
CBI (Supra), it has been argued that in the facts of the present case,
sanction under Section 197 Cr.P.C. is not required as fabrication of
official records, preparation of false proceedings, use of forged
documents and dishonest revival of the Society were inherently illegal
acts and did not fall within the lawful discharge of duty. Further, it has
been argued that their duty as public servant included acts authorized by
law, reasonably connected with official functions and performed in good
faith while exercising official powers for example, examining records of
Society, conducting inquiry, verifying documents, passing revival orders,
conducting elections and supervising Co-operative societies. However,
when the position was abused for conspiracy, forgery, fabrication,
cheating, deliberate suppression of irregularities and conferring illegal
benefits, their acts exceeded legitimate official duties. Rather, merely
because the act was done while holding office, protection under Section
197 Cr.P.C. cannot be afforded. So far as the reasonable nexus test is
concerned, it has been argued that duties of the Registrar included
examining records strictly on merits, verifying legality of membership
and elections, conducting inquiries under Section 55 of The DCS Act,
summoning persons, inspecting records, ensuring co-operative spirit,
supervising liquidation and revival process which imposed a positive
obligation to detect obvious forgery and manipulation. However, the
facts of the present case establish not mere negligence like procedural
lapse, error of judgment or administrative irregularity. But, deliberate
dishonest conduct in knowingly ignoring forged records, facilitating
fictitious members, passing revival orders despite obvious fraud and
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acting in conspiracy with private individuals. Therefore, as the acts itself
are inherently criminal and outside lawful authority, protection under
Section 197 Cr.P.C. could not be provided. Reliance has been placed
upon State of Kerala Vs. V. Padmanabhan Nair58, Prakash Singh Badal
Vs. State of Punjab (Supra), Raghunath Anant Govilkar Vs. State of
Maharashtra59, State of HP Vs. M.P. Gupta60.
35.7 The judgment in Rakesh Bhatnagar Vs. CBI (Supra) is sought to
be distinguished on facts. It has been submitted that Rakesh Bhatnagar as
Joint Registrar was accused of limited administrative endorsement
whereas in the present case there is evidence that the accused persons
actively participated in the chain of approvals facilitating fraudulent
revival and consequential land allotment. So far as Krishan Kumar Vs.
CBI (Supra) is concerned, it has been stated that the same is sub-judice
before the Apex Court.
35.8 Section 197 Cr.P.C. provide as under:
“197. Prosecution of Judges and public servants. –(1) When any
person who is or was a Judge or Magistrate or a public servant not
removable from his office save by or with the sanction of the
Government is accused of any offence alleged to have been
committed by him while acting or purporting to act in the discharge
of his official duty, no Court shall take cognizance of such offence
except with the previous sanction 6[save as otherwise provided in the
Lokpal and Lokayuktas Act, 2013 (1 of 2014)]–
(a) in the case of a person who is employed or, as the case may be,
was at the time of commission of the alleged offence employed, in
connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be,
58 AIR 1999 Supreme Court 2405
59 (1) RCR (Criminal) 1042
60 (2004) 2 SCC 349CBI vs K.K. Wadhwa & Ors.
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was at the time of commission of the alleged offence employed, in
connection with the affairs of a State, of the State Government:
61
[Provided that where the alleged offence was committed by a
person referred to in clause (b) during the period while a
Proclamation issued under clause (1) of article 356 of the
Constitution was in force in a State, clause (b) will apply as if for the
expression “State Government” occurring therein, the expression
“Central Government” were substituted.]
62
[Explanation.–For the removal of doubts it is hereby declared that
no sanction shall be required in case of a public servant accused of
any offence alleged to have been committed under section 166A,
section 166B, section 354, section 354A, section 354B, section 354C,
section 354D, section 370, section 375, 3[section 376A, section
376AB, section 376C, section 376D, section 376DA, section 376DB]
or section 509 of the Indian Penal Code (45 of 1860).]
(2) No Court shall take cognizance of any offence alleged to have
been committed by any member of the Armed Forces of the Union
while acting or purporting to act in the discharge of his official duty,
except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the
provisions of sub-section (2) shall apply to such class or category of
the members of the Forces charged with the maintenance of public
order as may be specified therein, wherever they may be serving, and
thereupon the provisions of that sub-section will apply as if for the
expression “Central Government” occurring therein, the expression
“State Government” were substituted.
63
[(3A) Notwithstanding anything contained in sub-section (3), no
court shall take cognizance of any offence, alleged to have been
committed by any member of the Forces charged with the
maintenance of public order in a State while acting or purporting to
act in the discharge of his official duty during the period while a
Proclamation issued under clause (1) of article 356 of the
Constitution was in force therein, except with the previous sanction
of the Central Government.
51
(3B) Notwithstanding anything to the contrary contained in this
Code or any other law, it is hereby declared that any sanction
accorded by the State Government or any cognizance taken by a
court upon such sanction, during the period commencing on the 20th
day of August, 1991 and ending with the date immediately preceding
the date on which the Code of Criminal Procedure (Amendment) Act,
1991 (43 of 1991), receives the assent of the President, with respect
61 Added by Act 43 of 1991, sec 2(a) (w.r.e.f. 2-5-1991)
62 Ins. by Act 13 of 2013, sec. 18 (w.r.e.f. 3-2-2013)
63 Ins. by Act 43 of 1991, sec. 2(b) (w.r.e.f. 2-5-1991)
CBI vs K.K. Wadhwa & Ors.
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to an offence alleged to have been committed during the period while
a Proclamation issued under clause (1) of article 356 of the
Constitution was in force in the State, shall be invalid and it shall be
competent for the Central Government in such matter to accord
sanction and for the court to take cognizance thereon.]
(4) The Central Government or the State Government, as the case
may be, may determine the person by whom, the manner in which,
and the offence or offences for which, the prosecution of such Judge,
Magistrate or public servant is to be conducted, and may specify the
Court before which the trial is to be held.”
35.9 In Centre for Public Interest Litigation Vs. Union of India64, it has
been held as under:
“9. 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 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 official64 (2005) 8 SCC 202
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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 this 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.
10. Use of the expression, ‘official duty’ implies that
the act or omission must have been done by the public
servant in the course of his service and that it should have
been in discharge of his duty. The Section does not extend
its protective cover to every act or omission done by a
public servant in service but restricts its scope of operation
to only those acts or omissions which are done by a public
servant in discharge of official duty.
11. If on facts, therefore, it is prima facie found that
the act or omission for which the accused was charged had
reasonable connection with discharge of his duty then it
must be held to official to which applicability of Section
197 of the Code cannot be disputed.”
35.10 In Devinder Vs. State of Punjab65, it has been summarized as
under:
“39. The principles emerging from the aforesaid
decisions are summarized here under :
39.1 Protection of sanction is an assurance to an honest
65 (2016) 12 SCC 87
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and sincere officer to perform his duty honestly and to the
best of his ability to further public duty. However, authority
cannot be camouflaged to commit crime.
39.2 Once act or omission has been found to have been
committed by public servant in discharging his duty it must
be given liberal and wide construction so far its official nature
is concerned. Public servant is not entitled to indulge in
criminal activities. To that extent Section 197 CrPC has to be
construed narrowly and in a restricted manner.
39.3 Even in facts of a case when public servant has
exceeded in his duty, if there is reasonable connection it will
not deprive him of protection under section 197 Cr.P.C. There
cannot be a universal rule to determine whether there is
reasonable nexus between the act done and official duty nor it
is possible to lay down such rule.
39.4 In case the assault made is intrinsically connected
with or related to performance of official duties sanction
would be necessary under Section 197 CrPC, but such
relation to duty should not be pretended or fanciful claim. The
offence must be directly and reasonably connected with
official duty to require sanction. It is no part of official duty to
commit offence. In case offence was incomplete without
proving, the official act, ordinarily the provisions of Section
197 CrPC would apply.”
The said judgment has also been followed in A. Srinivasulu Vs. State of
Tamil Nadu (supra).
35.11 In A. Sreenivasa Reddy Vs. Rakesh Sharma & Anr. (Supra) , it
has been opined as under:
“61. There is a material difference between the statutory
requirements of Section 19 of the PC Act, 1988 on one hand,
and Section 197 of the CrPC, on the other. In the prosecution
for the offences exclusively under the PC Act, 1988, sanction
is mandatory qua the public servant. In cases under the
general penal law against the public servant, the necessity (or
otherwise) of sanction under Section 197 of the CrPC
depends on the factual aspects. The test in the latter case is of
the “nexus” between the act of commission or omission and
the official duty of the public servant. To commit an offence
punishable under law can never be a part of the official duty
of a public servant. It is too simplistic an approach to adopt
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and to reject the necessity of sanction under Section 197 of
the CrPC on such reasoning. The “safe and sure test”, is to
ascertain if the omission or neglect to commit the act
complained of would have made the public servant
answerable for the charge of dereliction of his official duty.
He may have acted “in excess of his duty”, but if there is a
“reasonable connection” between the impugned act and the
performance of the official duty, the protective umbrella of
Section 197 of the CrPC cannot be denied, so long as the
discharge of official duty is not used as a cloak for illicit
acts.”
35.12. It is no longer res integra that to seek protection under
Section 197 Cr.P.C., the test is whether there is a nexus between the
alleged act and the official duty of the public servant. The Court is
required to ascertain whether the omission or culpable neglect
complained of would have exposed the public servant to the charge of
dereliction of duty though, he may have acted in excess of such duty.
35.13 So far as Rakesh Bhatnagar Vs. CBI (Supra) is concerned, on the
basis of evidence led before this Court, it can be distinguished on facts as
in that case while approving the list of members, records revealed that
the Dealing Assistant (an accused in that case) wrote a notesheet wherein
he mentioned the present status of the Arvind Society. However, did not
mention in the notesheet that the liquidation of the Society vide order
no.47/158/78/H/CO/1993-99 dated 16.09.1979 had not been mentioned.
Further, the said liquidation order was never a part of RCS file and was
only a part of DDA records. Therefore, the Court observed that the
learned Trial Court had made a wrong presumption that the petitioner
was in the know of the order. Considering the admitted factual situation
therein, it was found to be difficult, if not impossible to conclude that Sh.
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Rakesh Bhatnagar would have had conscious knowledge of the said
order and therefore, no complicity or culpability was affixed upon him. 66
However, in the present case, there is no defence that the docket file of
the Society was incomplete or did not contain relevant facts to arrive at a
decision.
35.14 As regards the applicability of Krishan Kumar Vs. CBI (Supra),
the same is sub-judice but till the SLP is decided and as there is no stay
on the impugned order, the Court being Sub-ordinate is bound by it. It
has been specifically observed that the allegations against Sh. Krishan
Kumar (who was the JR and accused of writing favourable notes)
pertained to offences committed in discharge of his official duties as it
has been held as under :
12. There is equally no doubt in the mind of this Court that the
allegations against the petitioner pertain to offences committed in
the discharge of his official duties, and as such, the rigors of Prof.
N.K. Ganguly v. CBI New Delhi, 2015 SCC OnLine SC 1205
shall apply in full. …”
35.15 The specific role in the conspiracy attributed to accused
R.K. Srivastava is issuing order for revival of the Society (Ex. PW19/B)
and approving the freeze list of 105 members (Ex. PW11/Z119) and to
accused P.N. Manchanda for preparing favourable notes and false
verification report on the basis of false, fabricated and forged documents
would be covered by Krishan Kumar Vs. CBI (Supra). However, in view
of Neera Yadav Vs. CBI67 lack of sanction under Section 197 Cr.P.C.
would not affect charge under Section 120B readwith Section 13(2)
66 Ref: – Para no. 2.4 and 49 of Rakesh Bhatnagar Vs. CBI (Supra)
67 2006 (ILR) 1 ALL 490
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readwith Section 13(1)(d)(iii) of The P.C. Act
(b) Is the sanction for prosecution issued qua accused P.N. Manchanda
which is Ex. PW47/B is invalid for non application of mind?
36. On behalf of accused P.N. Manchanda, a challenge to the sanction
for prosecution is to the effect that Sh. V.K.S. Chauhan, then Additional
Secretary, Directorate of Vigilance had mechanically issued the sanction
order Ex.PW47/B which has been vehemently opposed by the
prosecution.
36.1 The material witness examined by the prosecution to prove the
sanction order Ex. PW27/B is Sh. P.P. Aggarwal, Section Officer who
identified the signature of Sh. V.K.S. Chauhan on forwarding letter dated
12.08.2010 (Ex. PW47/A) and sanction order (Ex. PW47/B) as Sh.
V.K.S. Chauhan had expired during the COVID 19 pandemic in April-
May 2021. During cross-examination it was sought to be demonstrated
that relevant material had not been place before the competent authority
for deliberation. However, the witness who appeared deposed that he had
put the documents received from the CBI to the competent authority
though he could not recall their particulars due to lapse of time. He also
denied that the CBI had not forwarded any document for consideration.
Hence, not much could be elicited by the defence to cast doubt on the
non-application of mind before issuance of sanction order Ex. PW47/B.
No affirmative defence evidence has been led to the contrary and
therefore, the assertion remained bald.
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36.2 So far as, the objection that the sanctioning authority was not
competent, it can be perused from the testimony of Sh. S.G.
Mulchandaney (PW-17) that sanction has been issued with approval of
the Hon’ble Prime Minister and there has been no cross-examination on
the said aspect. Also, when the examination of Sh. P.P. Aggarwal
(PW-47) is considered, he has categorically deposed that the authority to
remove the AR was with the Hon’ble Lieutenant Governor, Government
of NCT of Delhi and the sanction was accorded by him. There is no
cross-examination to contradict the witness on the said aspect. Hence,
the defence is misconceived.
(c) Is immunity under Section 95 of DCS Act, 1972 available to the
accused?
37. In Narayan Diwakar Vs. CBI68 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 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
68 ILR (2006) 1 Delhi 517
CBI vs K.K. Wadhwa & Ors.
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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.
37.1 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.
ON FACTS
38. On merits, the challenge to the allegations on behalf of accused
R.K. Srivastava, is that there is no abuse of position by the accused as the
present case is premised upon administrative hindsight, selective reading
of file notings and misinterpretation of statutory provisions. To counter
the allegation that failing to order physical verification / inspection under
section 54 of DCS Act, which is a circumstance upon which prosecution
is relying to show complicity alongwith the co-accused persons, it has
been submitted that Section 54 DCS Act does not mandatorily direct
inspection. It has been canvassed that it is the discretionary power of the
RCS. Further, it has been submitted that in a cooperative regulatory
framework, a society exists as a legal entity through its records and the
zonal office (which is a specialized field unit to conduct verification and
submit report) had verified and found them to be in order. Therefore,
accused R.K. Srivastava had rightly exercised his discretion as due
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diligence was technically met. Also, it has been submitted that there is a
presumption that official acts have been regularly performed. Further, it
has been emphasized that it is not the legal duty of the Registrar to go
behind the report of the zonal officers unless there is ex-facie evidence of
fraud. Reliance upon zonal officers verification report was the standing
operating procedure duly followed by the accused. Also, it has been
argued that the Registrar oversees thousands of societies and the zonal
office serves as its eyes and ears. Hence, it has been adumbrated that
emphasis upon lack of physical verification is pivoting the law towards a
subjective standard of ”perceived duty” which is not the intent of law.
Secondly, it has been submitted that the records speak that accused R.K.
Srivastava has not exercised his powers under Section 63(3)
mechanically. He has raised queries to his subordinates and passed a
conditional order imposing specific liability upon the society and the
non-compliance automatically leading to its loss of sanctity. Secondly,
non-speaking order does not attribute abuse of office because firstly, the
order is detailed and elaborate and reflects due application of mind.
Relying upon State of HP and Ors. vs. Rajesh Chander Sood 69, it has
been submitted that requirement of a speaking order requires on the
nature of the power exercised and Section 63(3) does not mandate
elaborate reasoning than beyond what is already mentioned in the order.
Also, it has been argued that administrative satisfaction cannot be
equated with a judicial judgment and even otherwise, if the order was
69 Civil Appeal Nos. 9750-9819 of 2016 (Arising from SLP(C) No. 10864-10933 of 2014) decided
on 28.09.2016 by Supreme Court of India
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lacking in any respect, it was amenable to challenge and the prosecution
cannot be in the nature of an appeal against the order of the RCS. Thirdly,
as regards misinterpretation of statutory provision, it has also been
submitted that Rule 105 of DCS Rules is wrongly interpreted and
contrary to Vikas Co-Operative Group Housing Society Ltd. Vs.
Registrar Cooperative Societies & Others 70 and considering that no steps
towards liquidation was taken, the proceedings stood terminated on the
lapse of the prescribed period. Fourthly, it has been submitted that during
investigation, the investigating agency has not been able bring on record
any proof with regard to illegal gratification and pecuniary gain caused to
the accused which suggests that there was any criminal intent or
dishonest motive on their part. Fifthly, it has been submitted that mere
procedural deviations, if any or errors in judgment do not constitute
criminal offence.
38.2 On behalf of accused P.N. Manchanda, it has been adumbrated
that mere compliance of directions of superior officers, accused P.N.
Manchanda cannot be fastened with any liability. It has been argued that
there is no iota of evidence brought on record to prove that the accused
had recommended any approval about the authenticity of the documents
and approval of verification conducted by Dealing Assistant was at the
domain of Deputy Registrar and Joint Registrar. It has been submitted
that accused as an Assistant Registrar cannot be made liable for
collecting, verifying, scrutinizing and approving the documents. Also, it
70 Civil Writ Petition 1767/1986 decided on 21.11.1986 by Delhi High Court
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has been submitted that no pecuniary benefit or illegal gratification to
accused has been found during investigation. So far as list of members of
the Society is concerned, it is submitted that a due caution qua its
genuineness was exercised as a certificate of authenticity was annexed as
mentioned by the Dealing Assistant in the noting. Finally, the accused
claimed lack of procedural knowledge for not being a permanent recruit
in the RCS office.
38.3 Section 13(1)(d)(iii) reads as under :
“(1) A public servant is said to commit the offence of criminal
misconduct –
…
(d) if he , –
…
(iii) while holding office as a public servant, obtains for any person
any valuable thing or pecuniary advantage without any public
interest ; or ”
38.4 In Narayanan Nambiar Vs. State of Kerala 71 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 72,
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)71 AIR 1963 SC 1116
72 Crl. M.C. NO. 1071/2022 dated 17.01.2024CBI vs K.K. Wadhwa & Ors.
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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
Section 13(1)(d) of the PC Act.”
38.5 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.”
38.6 Section 13(1)(d)(iii) of P.C. Act defines criminal misconduct by a
public servant to 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.”
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38.7 “Public interest” has been explained in Babu Ram Verma Vs.
State of Uttar Pradesh (decided on 12.07.1971) as under :-
“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
38.8 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
38.9 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
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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 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
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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 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
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prosecutable under Section 13(1) (d)(iii). In other words, if the public
servant is able to show that he 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, which he was
bound, at all times to do. The intention or desire to cause the
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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
38.10 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
Delhi) (Supra). Here, the Court also draws strength from the following
observations in Runu Ghosh Vs. CBI (supra):
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“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
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
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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
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
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circumstances.
…
…and the circumstance so proved should point to only the accused
being the author of the crime, and none else. …”
38.11 To appreciate the roles assigned to aforementioned accused
persons, it would be conducive to have an overview of the breakdown of
duties for housing societies. Section 3 of The DCS Act stipulates as
under:
“3. Registrar.–(1) The Lieutenant-Governor may appoint a person to be
the Registrar of Co-operative Societies for the Union territory of Delhi
and may appoint other persons to assist him.
(2) The Lieutenant-Governor may, by general or special order, confer on
any person appointed to assist the Registrar all or any of the powers of
the Registrar under this Act.
(3) Every person appointed to assist the Registrar shall exercise the
powers conferred on him under sub-section (2) subject to the general
guidance, superintendence and control of the Registrar.
(4) The Lieutenant-Governor may, by notification in the Delhi Gazette
and subject to such conditions as he may think fit to impose, confer all
or any of the powers of the Registrar under this Act on any federal
society, or an officer of such federal society; and every such federal
society or officer on whom the powers of the Registrar are so conferred
shall exercise such powers under the general guidance, superintendence
and control of the Registrar.”
38.12 Thus, sub-ordinate Registrars to the RCS are appointed for his
assistance upon whom the RCS will exercise general guidance,
superintendence and control. As referred to in paragraph no. 15 of
Rakesh Bhanagar Vs. CBI (Supra), roles and responsibilities of the
officer were delegated as a per order dated 31.03.2000. The said order
was in operation till 20.02.2006. The said order of which judicial notice
can be taken is F.575/81-Estt/Coop/199565 dated 31.03.2000. The order
has been issued by accused R.K. Srivastava himself in exercise of his
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powers under Section 3(3) of DCS Act, 1972. He issued the order to
avoid administrative delays and decisions in respect of matters shown in
the schedule. According to the said order, the relevant delegation of
power is as under :
1 2 3 4
1. Section 4, 9, 10 and Rule Registration of a society D.R.
11 other society prescribed
u/r 58-A
3. Section 20 Extension of period for D.R/J.R
holding AGM
4. Section 30 and Rule 56(3) Requisition for Special A.R.
General Meeting
5. Section 33 Securing possession of D.R.
records
9. Section 54 and To order inspection A.R./
Rule 66—- D.R.
10. Section 55 and Rule 86 Enquiry A.R.
11. Section 56 Inspection of books of D.R.
indebted societies
19. Rule 41 Inspection of documents A.R.
20. Rule 46 Annual Statements A.R.
21. Rule 52(2) Constitution of D.R.
representative General
Body
25. Rule 84(1), (3) & (10) Regarding audit of D.R./J.R.
societies38.13 Additionally, it specified as under :
“Cases of clearance of the list of members in the case of Housing
Societies / Group Housing Societies shall be routed at all level of
officers. However, final clearance in respect of the list of members
at the time of allotment of plot / flat shall be made with the
permission of Registrar Co-operative Societies.”
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38.14 Hence, accused R.K. Srivastava had himself retained the final
authority in clearing the list of members.
38.15 Generally, as can be gathered, Assistant Registrar who operates
at the Zonal level usually handled the day-to-day affairs of the housing
societies including tracking of membership regularization and routine
management compliances. The Deputy Registrar and Joint Registrar
acted as the immediate regulatory check and the RCS handled the policy
decisions and liquidations. The RCS rarely introduced any policy
decision in isolation and decisions are made ”bottom up” through a
bureaucratic pipeline. The Assistant Registrar of a particular
geographical area drafted a formal note for consideration (wherein he
detailed the bottleneck or systemic issue affecting the Society) which are
vetted by the Deputy Registrar / Joint Registrar who evaluate whether the
proposed policy is aligned with statutory provisions of the act. The RCS
reviewed the physical file, signed off the recommendation and passed the
relevant order. Before making the final policy decision the comprehensive
physical file i.e. a docket requiring evidentiary material like approved
membership register, proceeding register, financial audits, statutory
material (like bye-laws and precedent file notings), interdepartmental
communications and the most crucial notesheets containing
recommendations and counter recommendations of every officer was to
be considered.
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38.16 At the outset, any defence by accused P.N. Manchanda that as he
was not a permanent recruit, he was not aware of the procedures of the
Office of RCS is mis-conceived. Ignorance of law is no excuse moreso,
by a public servant entrusted with the duty of enforcement of a law. It
was a part of his public duty to be abreast with the law he was required to
enforce and act under. Secondly, he cannot hide behind a flimsy defence
that being a sub-ordinate officer, he could not have any say in the matter
and was merely acting as per the directions of his superior officers. The
order referred to above clearly delegated the duty to him under Section 54
of The DCS Act and Rules 65 of the DCS Rules. Despite delegation of
duties, supervisory control by the RCS also could not be abdicated.
38.17 The application seeking cancellation of liquidation order was
moved after 09 years since there was any communication with the
society. It was definitely required to be probed as to why the
management of the Society if functional, on account of lack of
communication of the liquidation order as claimed by the private accused
persons, there was no intimation what so ever to the Office of RCS qua
enrollmenst and resignations of members, elections, annual statements
etc. Further, record already available at the RCS Office reveals that the
order for liquidation dated 12.02.1992 (page no. 244-243 of file Ex.
PW19/A) had been issued and it is observable from the notings at page
16/N of file Ex. PW19/A as under:
“This is one of the societies which is yet to be approved the list of
members. The list of members was submitted on 26.7.1985. But till the
list is not approved due to default on the part of the society. A letter
was issued on 7.7.87 for producing the records for verification of list of
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members. But the society did not produce the records on the given date.
A Show Cause Notice u/s 63 was issued on 12.6.90 on the charge of
not producing the records for verification of list of members and not
holding the election of the managing committee of the society. In
response to the SCN a reply was filed by the society asking to extend
the time for producing the records. Again a letter was issued on
28.11.90 for producing the records for verification of list of members.
But no response was received from the society. A final opportunity
letter was sent on 27.3.91 calling the society on 12.4.91. In response to
the letter dated 27.3.91 a reply was received from the society asking us
to extend the time for producing the records. Again a final opportunity
letter was sent on 28.6.91 calling on 5.7.91. But no response was
received from the society. A//D card has been received.
A requisition was issued on 22.4.88 and 29.5.89 for holding the
election of the M.C. of the society. But no response was received from
the society. The audit of accounts of the society was complete up to
1989-90. As per the audit report the election of the society was held on
14.1.90 but we have not received any information about holding of
election.
In view of the above position we may take action on the Show
Cause Notice under Section 63(2)(b).
Submitted for order please.
A.R. (NGH)”
38.18 Perusal of the said audit report at pages no. 227/C to 222/C
of file Ex. PW40/E (colly) (D3, Vol-III) shows that the audit for the
period 1989-1990 revealed irregularities in the functioning of the society
as the auditor noted that the Managing Committee election was not being
held as per Rule 58 (Schedule II), cash retention limit was not fixed,
heavy expenses were being made causing loss to the society, share
allotment register was incomplete and share certificate had not been
issued to all the members, cashbook was not written daily and vouchers
were also not found. It was also suggested by the auditor that the MC
should be held atleast once a month as only 5 meetings were noted to be
conducted in the last assessment year. Also, it was observed on record
that minutes of meeting dated 14.01.1990 when the election of the
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Managing Committee was held, had not been intimated to the office of
the RCS. Then, vide noting dated 22.08.1991 at page 15/N, the RCS
sought details of change in membership. As per note dated 30.08.1991 at
page 15/N/A, the said status was conveyed informing that 14
resignations had been approved and 8 enrollments had been done. 6
vacancies were noted. It was also mentioned that the society was not
producing the records for verification. In view of the above-mentioned
notes dated 18.09.1991, the office of RCS directed for spot verification
to find out the position of the society. Thereafter, as per notation at page
no. 17/N dated 07.01.1992, Sh. S.K. Jain, Inspecting Officer’s report at
pages no. (C-242) has been referred to whereby it is specifically
informed that the society did not submit the record for verification.
Hence, the office of RCS proceeded with liquidation of the society and
appointed Sh. R.K. Bhalla as the liquidator on 20.07.1995 (letter issued
to him on 25.7.1995). Thereafter, the request for revival was only
received on 10.05.2000. Considering that prior to the Society having
been directed to be liquidated, inspection under Section 54 of the DCS
Act had remained unfruitful for want of production of the records of the
society for verification. It was a red flag which should not have been
ignored as appropriate caution at that stage could have discouraged the
private accused persons to take advantage of the lacunae as the
functioning of the Society was not monitored to advance the objective of
the Act. The premise upon which the application was based i.e. GBM
dated 16.04.2000 (Ex. PW12/P), itself would have been detected to have
been fabricated and forged. It has been overlooked that no list of existing
members was submitted on 26.05.2000 and it had to be called for
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separately, on 29.05.2000. No verification was conducted whether order
for liquidation dated 12.02.1992 had been communicated to the Society
and the claim of the accused persons representing the Society was taken
at its face value on the premise that original documents was in the
custody of the Society. No inquiry was sought to be made from Sh. R.K.
Bhalla, liquidator, whether any communication with the Society had been
made or not considering that the Society had stopped responding prior to
its liquidation. Even thereafter, despite letter Ex. PW19/E mentioning
that knowledge regarding liquidation order dated 12.02.1992 was
gathered in December, 1997 when the Secretary of the Society contacted
the office of the RCS, no clarification was sought as to why the
application Ex. PW19/E then came to be moved after 2.5 years.
Probably, such enquiry even then would have thrown up some material to
question the move of the Society. Failure to exercise the discretion to
conduct a physical inspection therefore, enabled the representatives of
the Society to seek cancellation of liquidation order dated 12.02.1992 on
the basis of forged and fabricated records. Therefore, failure to exercise
the discretion on the basis of the circumstances under which the
application Ex. PW19/E came to be moved is culpably negligent as
reasonable care and precaution to guard against injury of public interest,
which they were bound to do, was not exercised. Hence, the argument
that physical inspection was discretionary and not mandatory therefore,
failure to exercise that discretion is not culpable stand rejected.
38.19 Thus, as per the same the Assistant Registrar was responsible for
any note in the file and was supposed to see the factual correctness of the
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note prepared by the Dealing Assistant, he was also supposed to move a
proposal for inspection. Therefore, the defence of accused P.N.
Manchanda that he isn’t liable as he was neither required to collect, verify
scrutiny or approve the documents and that he cannot be deemed as a co-
conspirator is mis-conceived. On presentation of records before him on
26.05.2000 and 29.05.2000, no probing has been done qua the
compliances as per the DCS Act and DCS Rules qua enrollments and
resignations of the members. He did not enquire qua the eligibility of the
members as per Chapter III of The DCS Act read with Chapter 3 of The
DCS Rules and in specific whether the person who was approved by the
Committee to become the member of the Society was eligible73 had
deposited the membership fees and the amount of qualifying share within
14 days of information of admission74, whether a member who had
withdrawn / removed from the society was repaid the money paid by him
towards purchase of shares after such period as per the Bye-laws of the
Society75, whether members resigning had given three months’ notice to
the Secretary of the Society76, whether the Co-operative Society was
preparing its list (as per Form 10) of members 77 as on the last day of each
co-operative year, whether account statement was being prepared78,
whether the Society was drawing up minutes of meeting immediately on
termination of the meeting duly signed by the Chairman within 04
73 Rule 25 of The DCS Rules
74 Rule 30 of The DCS Rules
75 Rule 31(a)(2) of The DCS Rules
76 Rule 31(b)(1) of The DCS Rules
77 Rule 37 (1) of The DCS Rules
78 Rule 42 of The DCS Rules
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working days etc.79 to mention a few. Yet, favourable note dated
31.05.2000 has been forwarded recommending cancellation of revival
order. So much so that even pursuant to noting dated 12.06.2000 (at page
no. 29/N of file Ex.PW19/A D-3, Vol-I) when the RCS directed the AR
to thoroughly examine the documents and records were examined by
accused P.N. Manchanda on 19.06.2000, he specifically examined the
Membership Register (Ex. PW10/A) without caring to scrutinize that the
members introduced despite the order for winding up being passed on
12.02.1992, had been regularly resigned and enrolled or not in
compliance of the provisions of the Rules and Acts. The discretion has to
be used according to the surrounding circumstances and as discussed
above, in the present case there were overwhelming and convincing
reasons to exercise the discretion to ascertain the memberships so that,
unscrupulous individuals did not abuse the managerial system of the
Society to defeat the object of the Group Housing Society.
38.20 Further, the recommendation of accused P.N. Manchanda at
pages 25/N to 27/N (file Ex. PW 19/A D-3, Vol-I) to cancel the order
dated 12.02.1992 subject to the conditions and which also finds place in
the order for cancellation of winding up (Ex. PW19/B) further
demonstrates as to how the prescribed rules were ignored for example:
(a) Election of the Society was to be conducted within the prescribed
period for which Sh. Satish Singh Aswal (PW-19) was appointed and his
report is itself false as he has shown the presence of Sh. Nahar Singh79 Rule 57 of The DCS Rules
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(PW 14) and Ms. Shama (PW8) who have all denied to have participated
in any meetings of the Society. It is the election through which accused
Devender Pal Singh, accused Sunil Kumar, accused Anil Kumar and
accused Ravi Saluja were again elected as members of the Managing
Committee of the Society. Therefore, they retained the control over the
management of the Society. Accused Anil continued to e a member of the
Managing Committee
(b) Pending audits were directed to be completed in ignorance of
Section 53 of The DCS Act readwith Rule 84 of The DCS Rules which
provides that the auditor can only undertake the audit of the society for a
maximum period of three years.
38.21 A circumstance, which reflects the swiftness with which the
application was processed can also be gathered by submission and
processing of an affidavit dated 26.06.2000 (by President and Secretary
of the Society to comply with the statutory liabilities in future), on the
same day. A Society which had remained defunct for 09 years was
resurrected within 1.5 months of preferring of an application (Ex.
PW19/A). However, this is not to be misunderstood as a scrutiny of swift
bureaucratic action which is usually in public interest however, in the
circumstances of the present case when there were credible reasons to be
circumspect and the request for cancellation of winding up order and
approval of the consolidated list of members has been hurried at the cost
of identifying the real beneficiaries and thus, is not in public interest.
38.22 Much reliance has been placed upon the queries which were
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raised by accused R.K. Srivastava to demonstrate that he did not have
dishonest intention. However, for the offence being considered, mens rea
is not required. The argument that the Court should read mens rea for
offence punishable under Section 13(1)(d)(iii) of The P.C. Act as the
section stands repealed through the amendment would not find favour
with this Court as when the law was in force, the findings of Neeraj
Dutta Vs. CBI (Supra) was the law.
38.23 Though, canvassed that enrollments and resignations of members
was the prerogative of the members of the Managing Committee
whereupon, the office of the Registrar would have no say, it was the duty
of the officers at the RCS office to ensure that the enrollments and
resignations were as per the Bye-laws of the Society and strictly in
compliance of Chapter III of the DCS Act and Chapter III of the DCS
Rules which elaborate upon the members of cooperative society and their
rights and liabilities and also Chapter IV which provides for management
of the co-operative societies. Thus, it cannot be said that the office of
RCS is a passive spectator and it has an absolute statutory duty to ensure
that memberships are genuine, sequential and free from any sort of fraud.
Any note written by the Dealing Assistant, an AR or even a Joint
Registrar is merely an internal expression of opinion and the note has no
legal validity until the final deciding authority namely RCS agree to it,
signed it and official communication is issued to the concerned. There is
enough evidence on record as discussed above to demonstrate that
favourable notes for the corrupt Management Committee of the Society
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were drafted and approved. The impact of the overt acts has led to
allotment of land parcel (valuable thing) in the hand of the Society which
was taken control of by accused K.K. Wadhwa, accused Devender Pal
Singh, accused Sunil Kumar, accused Anil Kumar and accused Ravi
Saluja and thus benefiting them, in order to defeat the objective of group
housing society and is thus, not in public interest.
ALLEGATIONS OF CONSPIRACY
39. The case as set up by the Prosecution is that all the accused
persons conspired during the year 2000-2001 to cheat the office of RCS
and DDA by dishonestly and fraudulently inducing the office of RCS to
revive the Society and approve the freeze list of 105 members of the
Society on the basis of false and forged documents for allotment of land
from DDA at a subsidized rate. In pursuance of the said conspiracy, the
specific roles attributed to the accused persons are as under:
a). Accused K.K. Wadhwa is alleged to have taken over the charge of
record of the Society from co-accused Dev Raj (since deceased), then to
have prepared false, forged and fabricated proceedings register,
resignation letters etc.
b). Accused Anil Kumar, accused Sunil Kumar (as Secretary of the
Society), accused Devender Pal Singh (as President of the Society) and
accused Ravi Saluja (as Treasurer of the Society) are alleged to have
prepared or got prepared false, forged and fabricated documents.
c). Accused Rajesh Kumar Khatri is alleged to have written fake
proceedings at instance of his father (accused Dev Raj) and to have
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obtained resignations from promoter members by misleading them.
d). Accused R.K. Srivastava is facing trial for abusing his official
position as RCS (Public Servant) for obtaining/attempting to obtain
pecuniary advantage to the private persons without any public interest.
e). Accused P.N. Manchanda has been charged for submitting
favourable notes and false verification report and thus, having abused his
official position as RCS (Public Servant) for obtaining/attempting to
obtain pecuniary advantage to the private persons without any public
interest.
39.1 Accused Dev Raj (since deceased) was facing trial for handing
over the documents to accused K.K. Wadhwa and to also have prepared
back dated entries and obtained resignation of promoter members by
misleading them. Sh. Krishan Kumar, whose role was similar to accused
P.N. Manchanda has since been discharged by the Delhi High Court as
already mentioned above.
39.2 Usually, it is hard to come across direct evidence on conspiracy as
it is hatched in secrecy. However, it can still be proved through
circumstantial evidence standing the test of it as laid down in Sharad
Birdhichand Sarda vs. State of Maharashtra (Supra). Further, it is not
essential that every conspirator should know the details of the plan but
must share an unlawful design. Reliance is placed upon State of
Maharashtra Vs. Somnath Thapa80 and State of Tamil Nadu Vs. Nalini
(supra). The Court is also conscious that mere association or suspicion is
80 (1996) 4 SCC 659
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not sufficient and there has to be credible evidence to show participation
in the conspiracy. Reliance is placed upon State (NCT of Delhi) Vs.
Navjot Sandhu81.
39.3 With the above enunciations in purview, when the evidence is
brought on record is evaluated firstly, qua the accused persons who are
not public servants, the following material evidences are worth
consideration:
a). Through the testimonies of Smt. Sudarshan Kumari (PW-13), Smt.
Meenakshi Chadha (PW-16), Sh. Rajesh Jaggi (PW-21), Smt. Pushpa
Sagar (PW-27) and Sh. Arun Kumar (PW-45) it has been conclusively
established that accused Dev Raj (since deceased) was a founding
member of the Society actively controlling its affairs and maintaining its
records. Formation of the Society as presented by the Prosecution has not
been denied by accused Rajesh Kumar Khatri, accused Ravi Saluja,
accused Devender Pal Singh and accused Sunil Kumar during their
examination under Section 313 Cr.P.C. Accused K.K. Wadhwa and
accused Anil Kumar merely pleaded ignorance regarding the same.
b). Sh. Rajesh Aggarwal (PW-1) also deposed that accused K.K.
Wadhwa and accused Anil Kumar were business associates. During
cross-examination on behalf of accused Anil Kumar, the witness could
not confirm the business relationship between accused K.K. Wadhwa and
accused Anil Kumar, however, the testimony that accused Anil Kumar an
d accused K.K. Wadhwa were known to each other remained unrebutted
as the witness stated that he had met accused Anil Kumar at the office of81 (2005) 11 SCC 600
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accused K.K. Wadhwa once or twice. (Here, it would be pertinent to
mention that D-23 to D-25 (documents like lease deeds etc., showing
transactions between accused K.K. Wadhwa and accused Anil Kumar
could have been instrumental in conclusively establishing the business
relationship between accused K.K. Wadhwa and accused Anil Kumar
however, for reasons best known to the Prosecution the same has not
been proved).
c). Sh. Arun Kumar (PW-45) deposed that his father ran the Society
for ten years and thereafter, handed over the same to one Mr. Wadhwa.
However, he resiled from his earlier statement that the condition for
handing over the Society was that 20 members of the Society would be
of choice of accused Dev Raj (since deceased). He maintained that
accused Dev Raj (since deceased) had told Sh. Wadhwa that he should
keep the old members of the Society, if they wanted to continue. But, he
stood by his statement under Section 164 Cr.P.C. (Ex.PW45/A) and
denied all suggestions of the same being tutored. He stated that he had
never met accused K.K. Wadhwa and therefore, could not identify him.
However, cumulatively, the essence of his testimony is that the said “Mr.
Wadhwa” has been identified as “Sh. K.K. Wadhwa” in his statement
Ex.PW45/A which corroborates the identity of said “Mr. Wadhwa”.
Further, the said statement (Ex.PW45/A) also corroborates that accused
K.K. Wadhwa and accused Anil Kumar were operating together. He
confirmed that his father had handed over the documents of the Society
to accused Anil Kumar and accused K.K. Wadhwa thinking that they
would help the members of the Society. The said statement is also
relevant to explain the reason why the Society was defunct failing to
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respond to the notices of the RCS as it is mentioned that his father was
keeping ill.
d). From the testimony of Sh. Rajesh Aggarwal (PW-1), it has
emerged that accused K.K. Wadhwa was introduced to him in regard to
sale of his house at 272, Deepali, Pitampura during which the said
witness had proposed that he was inclined to rent out a cabin at his office
at 201, Namdhari Chamber, Deshbandhu Gupta Road, Karol Bagh.
Subsequently, in the year 2000-2001, a person came to the witness with
reference of accused K.K. Wadhwa seeking to take the cabin on rent for
running the office Lok Priya Vihar CGHS. Accordingly, the said property
was leased out to Lok Priya Vihar CGHS. The fact that the office of Lok
Priya Vihar subsequently shifted to aforementioned address is
corroborated by noting at page no. 48/N of File Ex. PW19/A and
certified copy of account opening form Ex.PW1/A (colly) in which the
witness had identified his signatures at Points A as the introducer of the
account in March, 2001. Pursuant, to the objective of the revival and
approval of list of members being achieved from the South Zone, change
of address was sought in January, 2001. As per minutes of meeting dated
10.12.2000 presided by accused Devender Pal Singh the Managing
Committee in which accused Devender Pal Singh, accused Sunil Kumar,
accused Ravi Saluja and accused Anil Kumar were members
unanimously decided to shift the office to 201, Namdhari Chamber, 9/54,
Deshbandu Gupta Road, Karol Bagh mentioning that the place belonged
to friend of accused Devender Pal Singh. The acquaintance between
accused K.K. Wadhwa and Sh. Rajesh Aggarwal (PW-1) is further
corroborated by the statement of Sh. Rohit Aggarwal (PW-11) who has
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testified that accused K.K. Wadhwa was dealing in Real Estate and Sh.
Rajesh Aggarwal (PW-1) was his friend. Sh. Rajesh Aggarwal (PW-1)
was also instrumental in introducing the witness as a member of the
Society in the year 2001. Also, the testimony of the witness corroborates
that Sh. Rajesh Aggarwal (PW-1) became the introducer of the Society
for its bank account at Bank of Punjab, Gurudwara Road, Karol Bagh,
only at request of accused K.K. Wadhwa. ( An objection has been taken
qua the mode of proof of the account opening form which is a certified
photocopy (Ex. PW1/A). However, when the said document was put to
accused Devender Pal Singh, accused Sunil Kumar, accused Ravi Saluja
to whom the document has been attributed alongwith Sh. Rajesh
Aggarwal (PW1) they stated that it was a matter of record . Therefore,
there is no denial of the fact in issue that the said account opening form
Ex. PW1/A was submitted.) (Further, another objection has been taken
that the statement of Sh. Rohit Aggarwal (PW-11) cannot be read in
evidence. However, the objection cannot be sustained as Sh. Rohit
Aggarwal (PW-11) is differently abled and was examined by the Court
on 29.09.2018. However, on that day no cross-examination was
conducted on behalf of accused K.K. Wadhwa who then moved an
application on 06.10.2018. The said application was allowed vide order
dated 01.12.2018 on the condition that it was subject to availability of
the witness and payment of cost of Rs. 1,000/-. However, no cost was
paid and on account of medical condition, he sought exemption from
appearance on 01.02.2019. Thereafter, no further efforts have been made
on behalf of accused K.K. Wadhwa to seek the presence of the witness.
Therefore, as the Court afforded full opportunity to the accused which
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was not effectively availed by him, the objection that evidence of Sh.
Rohit Aggarwal (PW-11) is not admissible in evidence is misconceived
and rejected.)
e). Sh. Rohit Aggarwal (PW-11) has testified that when he was
introduced as a member of the Society on 28.03.2001, accused K.K.
Wadhwa, accused Ravi Saluja and accused Ravi Kumar were actively
managing the affairs of the Society. Further, when accused Ravi Saluja
was questioned under section 313 Cr.P.C., he stated that it was a matter
of record that accused Devender Pal Singh, accused Sunil Kumar along
with him were officiating as the office bearers of the Society as alleged.
Accused Devender Pal Singh, accused Sunil Kumar, accused Anil Kumar
and accused Ravi Saluja were shown to have been elected as the
Managing Committee members vide minutes of meeting of GBM dated
22.08.1999 (Ex. PW12/E) which has been proved to be fabricated.
Subsequently, they were elected as President ( accused Devender Pal
Singh), Secretary (accused Ravi Saluja) and accused Ravi Saluja
(Treasurer) on 12.09.1999.
f). Accused Devender Pal Singh, accused Sunil Kumar and accused
Ravi Saluja are proved to have been introduced as members of the
Society vide meetings of Managing Committee dated 16.12.1994,
06.11.1994 and 16.12.1994, respectively. The Court has already opined
above that the minutes of aforementioned meetings were fabricated.
Therefore, introduction of accused Devender Pal Singh, accused Sunil
Kumar and accused Ravi Saluja as a member of the Society was ante
dated for oblique motives which became apparent, subsequently.
g). Pursuant to order dated 29.06.2000 directing the withdrawal of
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liquidation proceedings (Ex.PW19/B), an election of the Society was
directed to be held. Accordingly, as per noting at page no. 47/N of file
Ex.PW19/A which is dated 09.10.2000 under the signature of Sh. Yogiraj
(then, AR (South)), Sh. Satish Singh Aswal (PW-19) was appointed as
the Election Officer for elections which were due on 21.08.2000. The
said election report was also considered as per notings 27.12.2000 (at
pages 47/N and 48/N of file Ex. PW19/A, D-3, Vol-I) wherein, accused
Devender Pal Singh was elected as the President and accused Sunil
Kumar, accused Ravi Kumar and accused Anil Kumar were elected as
Managing Committee members and retained the control over
management of the Society. The copy of said minutes of meeting has
been submitted on behalf of the Society as available at pages 31 and 32
of file Ex.PW40/G (colly). (Yet again, the Prosecution omitted to flag the
said issue before Sh. Satish Singh Aswal (PW-19) to seek explanation for
marking presence of members namely Sh. Nahar Singh, Sh. Rajesh
Yadav and Ms. Shama Sharma, to mention a few who have denied being
members of the Society or having participated in any of its proceedings
and therefore, suggestive that the election report itself is fabricated).
h). The complicity between accused Sunil and accused Dev Raj (since
deceased) by statement of Sh. Bijender Singh (PW-15) who deposed that
he knew accused Sunil Kumar and had met accused Dev Raj (since
deceased) in the office of accused Sunil Kumar. Even though, he stated
that he could not identify accused Sunil Kumar in Court due to lapse of
time, the identity of accused Sunil Kumar stands established from the
testimony of Sh. Rohit Aggarwal (PW-11). The active role played by
accused Dev Raj (since deceased) in continuing to manage the affairs of
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the Society along with the other co-accused persons mentioned above is
further corroborated by the statement of Sh. Rajesh Jaggi (PW-21) who
deposed that through accused Rajesh Kumar Khatri, he was introduced to
accused Dev Raj (since deceased) and the witness was shown to have
become a member on 31.07.1994 was made so through a fabricated
minutes of meeting dated 31.07.1994. Sh. Suresh Kumar (PW-26) stated
that he became a member of the Society in the year 2000 (subsequently,
improved to 1994) through accused Anil Kumar and also deposed that he
met accused Dev Raj (since deceased) at the office at Patel Nagar where
he had gone along with accused Anil Kumar. However, he turned hostile
on the identity of accused Anil Kumar when during cross-examination he
deposed that Anil s/o Sh. Ram Saran was his friend. But he also stated
that at that time (when he became a member of the Society), the said Anil
was studying in school. This does not lend any credence to the statement
of the witness on the identity of Sh. Anil not being accused Anil Kumar
who is being tried by the Court. Also, the said witness is also appearing
as a member of Managing Committee of the Society along with accused
Anil Kumar in minutes of meetings dated 22.08.1999 (Ex. PW12/E),
12.09.1999, 10.01.2000, 19.03.2000, 16.04.2000 (Ex. PW12/P),
14.05.2000, 12.06.2000, 02.07.2000, 09.07.2000, 23.07.2000,
27.08.2000, 29.09.2000, 26.11.2000 and 10.12.2000 where much of the
road map for moving for withdrawal of the liquidation proceedings was
prepared. Therefore, there is an obvious reason why Sh. Suresh (PW-26)
turned hostile on the identity of accused Anil Kumar. The identity of
accused Anil has also been independently established through the
testimony of Sh. Rohit Aggarwal (PW-11) and Sh. Rajesh Aggarwal
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(PW-1).
i). The above discussed fabricated, false and forged proceedings82 of
the Society, enrollments, resignations, membership register, consolidated
list of members etc. were pursuant to application for revival dated
10.05.2000 (Ex.PW19/E) (of accused Devender Pal Singh as President)
produced before the office of RCS by accused Sunil Kumar (on
26.05.2000 and 29.05.2000 as per page no. 21/N of File Ex.PW19/A).
Thereafter, accused Devender Pal Singh, accused Sunil Kumar, accused
Ravi Saluja and accused Anil Kumar appeared before the RCS on
12.06.2000 for hearing on the application for revival of the Society (Ex.
PW19/E) as per noting dated 12.06.2000 (Page 29/N of file Ex. PW19/A
(D-3, Vol-I)). Again on 19.06.2000, accused Devender Pal Singh and
accused Sunil Kumar produced the documents before accused P.N.
Manchanda for verification (as per pages 30/N and 31/N of file Ex.
PW19/A). As per proceedings dated 22.06.2000 (pages 31/N and 32/N of
file Ex. PW19/A) accused Devender Pal Singh and accused Sunil Kumar
again appeared before the RCS to produce original records of
membership and were directed to file an affidavit for compliance of
statutory liabilities. It was swiftly done on the same day clearing the path
for consideration of their request for cancellation of liquidation order as
per noting dated 22.06.2000 (at page 32/N and 33/N of file Ex. PW19/A
(D-3, Vol-I)).
82 Documents produced by the Society as per noting dated 26.05.2000 (at page no 21/N of file Ex.
PW19/A, D-3, Vol-I) are: 1) Photocopy of GBM held on 16.4.2000, 2) Photocopy of M.C
resolution approving agenda, 3) Service proof of agenda notice, 4) Photocopy of proceeding of last
election held on 22.8.99, 5) Photocopy of M.C resolution approving agenda, 6) Service proof of
Agenda notice and 7) Accounts statements for 1991 to 2000.
List of existing members furnished by the Society as per noting dated 29.05.2000 (at page no 21/N
of file Ex. PW19/A, D-3, Vol-I)
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(j) Again, when a question arose qua the approval of enrollments and
resignations of the members and approval of consolidated list of
members, as per noting dated 28.07.2000 (at page 35/N of file Ex.
PW19/A (D-3, Vol-I)) on 02.08.2000, accused Sunil Kumar again
produced the relevant records in original for verification. Further, even
letter dated 31.08.2000 to clarify on enrollments and resignations which
had taken place when the Society was not functioning as the applicant
and seeks to rely upon a fabricated minutes of meeting dated 23.07.2000.
(k). Thus, there is clinching circumstantial evidence unerringly
pointing towards accused K.K.Wadhwa, accused Sunil Kumar, accused
Ravi Saluja and accused Anil Kumar that they conspired to hijack the
beneficial co-operative housing movement to create false documents,
fabricate records and forge letters / registers to dishonestly and
fraudulently to induce the office of RCS and get approved a false freeze
list of 105 members of the Society to obtain land from DDA at a
subsidized rate.
(l). In the aforesaid conspiracy, the role attributed to accused Rajesh
Kumar Khatri is that he had written fake proceedings at the instance of
his father Dev Raj (since deceased) with a motive to fraudulently revive
the Society. However, authorship of minutes of meeting dated
31.07.1994 (Ex.PW13/D1) and dated 12.09.1994 (Ex.PW13/Z13) could
not be established as that of accused Rajesh Kumar Khatri. In view of the
discussion in para no. 33.6 (e)(iv) above entries at sl no. 129 to 135 of
Membership Register could not be established to be in the hand of
accused Rajesh Kumar Khatri.
(m). The next issue which requires deliberation is the role of the public
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servants in the said conspiracy. Considering that Sh. Krishan Kumar has
been discharged, the Court is only required to now consider the role of
accused R.K. Srivastava and accused P.N. Manchanda.
39.5 However, in the considered view of this Court for reasons
mentioned in paragraphs no. 38.12 to 38.23, the prosecution has been
able to prove that accused R.K. Srivastava and accused P.N. Manchanda
afforded the regulatory vacuum to the corrupt Managing Committee
members whereby, there was a facilitation in presentation of forged,
fabricated and false Proceedings Registers (Ex. PW10/B and Ex.
PW11/Z6), Membership Register (Ex. PW10/A), Consolidated List of
Members (Ex. PW11/Z119), applications for membership, resignation
letters, cash receipts etc. upon which order under Section 63(3) of The
DCS Act Ex. PW19/B was issued, enrollments and resignation of
members were approved and Consolidated list of Members was also
approved whereafter, communication was sent to DDA and pursuant to
which letter recommending allotment of land to the Society (Mark
PW39/A) and demand cum allotment letter dated 13.02.2003 (Ex.
PW39/A) was issued to the Society. It has been argued that since some of
the public servants who were part of the decision making process were
either not chargesheeted or if chargesheeted, was discharged and
therefore, the chain of circumstantial evidence was incomplete. The said
argument prima facie seems appealing however, it would not
automatically mean that the Prosecution case fails. The AR as well as the
RCS made decisive decisions which in the circumstances discussed above
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are without reasonable care and caution to protect the public interest.
Accused P.N. Manchanda initiated a favourable recommendation on the
report of the Dealing Assistant which he was not bound to do and
accused R.K. Srivastava who exercised the overall supervisory role over
the subordinates, was not bound to agree with the internal expression of
opinion of his subordinates and was to keenly apply his independent
mind to the docket file. Therefore, they cannot be afforded the benefit of
absence of other public servants who wrote the sequential notes.
However, it would be pertinent to point out that the role of the Dealing
Assistant, Deputy Registrar, Election Officer and Auditor was required to
be investigated as that would have further bolstered the case of the
prosecution showing systemic complicity.
Perfunctory Investigation
40. On behalf of accused R.K. Srivastava, accused Sunil Kumar and
accused Devender Pal Singh, lack of knowledge of the Investigating
Officer on critical aspects like audit verification, service of winding up
order, legal requirements under DCS Act, interpretation of Rule 105 of
The DCS Rules has been referred to show that there has been a non
application of mind, casual perfunctory investigation and incomplete
investigation and therefore, no conviction can be based upon such
defective, speculative and assumptive investigation.
40.1 The benefit of perfunctory investigation can be afforded to the
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accused only when it is demonstrated that the investigation allegedly
defective, speculative and assumptive, creates reasonable doubts about
the guilt of the accused. The fact that audit reports were not verified are
not sufficient per se to show that it is inconsistent with the allegations
qua the accused persons. (Rather, when the copy of the audit reports for
the period 1990-1991 to 1999-2000 in file Ex.PW11/Z7 is perused, it is
observable that it would further fortify the allegations of conspiracy as a
single auditor Sh. H.C. Kadam had been appointed for conducting the
audit for the entire 10 years whereas, Rule 84, Chapter 7 of The DCS
Rules specifically provides that an auditor can undertake audit of society
for a maximum period of three years. Also, the said audit report mentions
that not all transactions were supported by vouchers, cashbook was not
updated, share allotment register was incomplete, cash book was to be
written daily, MC meeting should be held at least once a month and
AGM should be held once a year, as the shortcomings of the working of
the Society.)
40.2 So far as, investigation qua communication of winding up order is
concerned, it cannot be said to be prejudicial to the accused persons as
the accused persons have admittedly, acted on the presumption that no
communication of the winding up order had been made and there is no
material on record to show any due diligence conducted by the office of
RCS from Sh. R.K. Bhalla, the liquidator in that regard. As regards,
interpretation of law is concerned, the Court is not bound by the opinion
of the Investigating Officer and therefore, for the said reason, no
prejudice can be read against the accused persons. So far as, incorrect
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interpretation of Section 105 of the DCS Rules is concerned (as opined
in Vikas Co-operative Group Housing Society Ltd. Vs. Registrar Co-
operative Societies & Others (Supra), it is for the RCS to explain that
what then was the need to pass an order under Section 63(3) of The DCS
Act, if the order for liquidation stood terminated? The application
seeking cancellation of winding up order could have been disposed off,
accordingly. Therefore, the argument of perfunctory investigation cannot
not be made a ground of conviction is rejected.
ORDER
41. In view of the detailed discussion above, the Court hereby orders
as under :
(a) Accused K.K. Wadhwa, accused Anil Kumar, accused Sunil
Kumar, accused Devender Pal Singh and accused Ravi Saluja are
convicted of offence punishable under Section 420 IPC ;
(b) Accused K.K. Wadhwa, accused Devender Pal Singh and accused
Ravi Saluja are acquitted of offences punishable under Section 467/468
IPC ;
(c) Accused Devender Pal Singh and accused Ravi Saluja are
convicted under Section 471 IPC ;
(d) Accused K.K. Wadhwa, accused Anil Kumar, accused Sunil
Kumar, accused Devender Pal Singh and accused Ravi Saluja are
convicted under Section 120B readwith Sections 420/471 IPC ;
(e) Accused R.K. Srivastava and accused P.N. Manchanda are
convicted under Section 13(2) readwith Section 13(1)(d)(iii) of The P.C.CBI vs K.K. Wadhwa & Ors.
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Act ;
(f) Accused R.K. Srivastava and accused P.N. Manchanda are
convicted under Section 120B readwith Section 13(2) readwith Section
13(1)(d)(iii) of The P.C. Act alongwith co-accused Accused K.K.
Wadhwa, accused Anil Kumar, accused Sunil Kumar, accused Devender
Pal Singh and accused Ravi Saluja;
(g) Accused R.K. Srivastava and accused P.N. Manchanda are
discharged for offences punishable under Section 120B readwith Section
420/467/468/471 IPC for want of sanction under Section 197 Cr.P.C. ;
(h) Accused Rajesh Kumar Khatri is acquitted of offences charged
with.
41.1 All pending applications, accordingly stand disposed off.
41.2 Copy of the judgment be given dasti to the convicts.
41.3 Be listed for arguments on Order on Sentence on 27.07.2026.
Digitally
signed by
VIJETA VIJETA SINGH
Pronounced in open Court
RAWAT
SINGH Date:
RAWAT 2026.07.14
on 14.07.2026
17:19:23
+0530(Vijeta Singh Rawat)
Special Judge (PC Act) (CBI)-17
Rouse Avenue Courts, New Delhi
14.07.2026. (k)CBI vs K.K. Wadhwa & Ors.
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