Delhi District Court
Cbi vs A.D.Dixit & Anr. on 14 January, 2016
CBI vs A.D.Dixit & Anr.
IN THE COURT OF SPECIAL JUDGE, CBI (P C Act)-06,
CENTRAL DISTRICT, TIS HAZARI, DELHI.
ID No. 02401R0125162000
CC No. 11/12
RC NO. 70(A)/1996/CBI/ACB/ND
State through C.B.I. Vs. (1) Ajay Kumar Dixit,
S/o Kailash Nath Dixit
R/o 29/30,
East Patel Nagar,
New Delhi.
(2) Seema Dixit,
W/o Ajay Kumar Dixit,
R/o 29/30,
East Patel Nagar,
New Delhi.
Date of Institution : 30th June 2000
Arguments concluded on : 13th January 2016
Judgment Delivered on : 14th January 2016
JUDGMENT
1. Ajay Kumar Dixit joined public Service in Municipal Corporation of Delhi as Junior Engineer on 25th August, 1988. He was selected as Assistant Engineer through direct recruitment on 25th May, 1990. On receipt of a source information on 22nd August, 1996, a regular case was registered by the CBI, (ACB Branch, New Delhi) u/s. 13 (2) r/w. 13 (1) (e) of Prevention of Corruption Act, 1988 (In short, to be referred herein after as 'POC Act'). Allegations leveled by the prosecution in this case against accused Ajay Kumar Dixit (A-1) are that he being a public servant working in MCD as JE (Building) and then, AE (Civil) acquired disproportionate assets to the tune of Rs.12,76,364/- in his own name and in the name of other persons by abusing his official position for which no satisfactory explanation was offered. On 23rd August, 1996, search was conducted at the residence of the accused and on conclusion of investigation, charge sheet was filed in the court on 30th June, 2000 for trial of accused.
2. On 2nd August, 2000, cognizance was taken by the court and charges were framed on 5th July, 2003 for commission of the offence U/S 13(2) r/w Section 13 (1) CC No. 11/12 Page 1 out of 73 pages CBI vs A.D.Dixit & Anr.
(e) and Section 11 of POC Act. Accused preferred a revision petition and vide order dated 20th October, 2003, High Court set aside order on charge with the direction to re-decide the question of charge after hearing the counsel for the accused/ petitioner. Thereafter charges were again framed vide order dated 18 th June, 2008 against accused Ajay Kumar Dixit (A-1) for commission of the offence U/S 13(2) r/w Section 13 (1)(e) and Section 11 of POC Act and against Mrs. Seema Dixit (A-2) for commission of offences u/s. 109 IPC r/w Section 13 (2) and 13 (1) (e) of POC Act. Accused persons pleaded not guilty and claimed trial.
3. As per the charge sheet, the details of the income during the check period is described in the following Chart.
CHART-1
S.No. Particulars Amount (in Rs)
1 Carry home salary for the period from 25.8.88 to 23.8.96 3,50,304/-
2 Notional pay for the period from 1.6.90 to 16.7.90 4,869/-
3 Notional pay for the period from 1.6.94 to 8.9.94 14,185/-
4 Sale of jewelery 1,49,996/-
5 Income from M/s Shelly Chit and Finance Pvt. Ltd., Hauz 70,000/-
Quazi
6 Loan received from Smt. Vimlawati. 1,15,000/-
7 Income from LIC policy 10,000/-
8 Income from MCD Engineering Department thrift and credit 10,000/-
security
9 Income from rent security 75,000/-
10 Income from rent of property no. 26/8, Old Rajinder Nagar, 20,000/-
New Delhi
Total Income 8,19,354/-
4. Assets allegedly acquired by the accused during check period are described in the following chart.
CHART No.2
S No. Particulars Amount (in Rs)
Immovable Assets
1 Basement of Property No. 26/8, Old Rajinder 3,35,350/-
Nagar, New Delhi as per evaluation report of
Sh. N.K. Jain, JE (civil), CBI, New Delhi
2 First Floor of Property No. 26/8, Old Rajinder 2,42,994/-
CC No. 11/12 Page 2 out of 73 pages
CBI vs A.D.Dixit & Anr.
Nagar, New Delhi (1/2 portion purchased in the
name of Smt. Seema Dixit as per evaluation
report of Sh. N.K. Jain, JE (civil), CBI, New
Delhi
3 Plot at Industrial Area Murthal (Sonepat) 1,25,000/-
Haryana, as per sale/purchase documents
4 Payment made vide cheque No.84500 20,000/-
Dt.8.12.95 from the account of Smt. Seema
Dixit maintained at United Western Bank Ltd.
Karol Bagh, New Delhi, SB A/c No.8389
Total 7,23,344/-
Movable Assets
1 House-hold articles as per observation memo 1,49,475/-
2 VI years National Saving Certificates, 5,000/-
Dt.17.3.94 in the name of A.K.Dixit
3 Investment in UTI Rai Laxmi Certificate 10,000/-
Dt.16.12.92,in the name of Asmita D/o A.K.Dixit
4 IDBI deep discount bond in the Name of Shiny 10,600/-
Dixit D/o A.K.Dixit
5 Money multiplier Deposit Scheme Certificate 11,419/-
Dt.20.12.95, in the name of Ajay Kumar Dixit &
Seema Dixit
6 Balance in S/B Account No. 8389 in United 1,08,910/-
Western Bank Ltd, Karol Bagh, New Delhi in
the name of Smt. Seema Dixit
7 Balance in S/B Account No. 1879 in Citizen 901/-
Coop.Bank Ltd, Desh Bandhu Gupta Road,
Paharganj, Delhi in the name of Smt. Seema
Dixit and Ajay Kumar Dixit.
8 Balance in S/B Account No. 3834 in State Bank 26,157/-
of India, Town Hall, Delhi in the name of
Sh.A.K. Dixit.
9 Balance in S/B Account No. 12453 in Canara 1,183/-
Bank Ltd, Karol Bagh, New Delhi in the name
of A.K.Dixit as on 23.8.96.
10 Balance in S/B Account No. 15055 in Canara 835/-
Bank Ltd, Karol Bagh, New Delhi in the name
of Seema Dixit.
11 Balance in S/B Account No. 1384 in Central 1,019/-
Bank of India, Chuna Mandi, Paharganj, Delhi
in the name of Seema Dixit as on 23.8.96.
12 Loan given by Smt. Seema Dixit W/o Sh. A.K. 1,05,000/-
Dixit to her brother Sh. Parmod Shukla.
13 Loan given by Seema Dixit W/o A.K. Dixit to 1,03,000/-
her brother Arun Shukla as per her income.
14 Loan given by Smt. Seema Dixit W/o Sh. A.K. 46,000/-
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CBI vs A.D.Dixit & Anr.
Dixit to Himanshikha Dixit as per her income
15 Loan given by Smt. Seema Dixit W/o Sh. A.K. 46,000/-
Dixit to Smt. Pushpa Tripathi as per her income
16 Petty loans given by Smt. Seema Dixit W/o 25,000/-
Sh.A.K. Dixit as per her income tax return.
Total 6,50,499/-
Grand Total of Assets 13,73,843/-
5. Expenditure allegedly acquired by the accused during check period are described in the following chart.
CHART No.3
S No. Particulars Amount (in Rs)
1 School expenses of Baby Shiny Dixit D/o A.K Dixit at Manav 9,800/-
Sathli School, 37, Pusha Road, New Delhi.
2 Payment made to LIC in policy no.110746868 in the name of 22,249/-
A.K. Dixit @ Rs.3178.40 per year from the period from
28.3.92 to August 1996.
3 Payment made to MTNL against telephone No.5764601 6,411/-
installed at 26/8, Old Rajinder Nagar, New Delhi
4 Income Tax paid by Smt.Seema Dixit W/o Sh.A.K.Dixit during 394/-
check period.
5 Payment made to M/s Deepti Enterprises, 2, Janta Market, 950/-
Jhandewalan Extn. New Delhi for gas connection no.PE8838 6 Payment made to M/s Jeevan Medical Center(P) Ltd, 2-B, 3,930/-
Pusha Road, New Delhi vide Bill No.2914 dated 6.6.96.
7 Payment made to M/s B.Seth Jessa Ram & Bros. Cheritable 98/-
Hospital, WEA, Karol Bagh, New Delhi vide Bill No.19370 dated 26.7.96.
8 Payment made to M/s Khanna Jewelers (P) Ltd. Karol Bagh, 63,400/-
New Delhi vide receipt no.8446 dated 16.2.96 against Bill No. 5243 dated 13.1.96.
9 Payment made to M/s India Radio and Electric Corporation, 62,250/-
13/9, WEA, Ajmal Khan Road, New Delhi 10 Payment made to M/s Divya Electronics, 180, Pratap Nagar, 23,100/-
Mayur Vihar, Delhi for BPL refrigerator 3002 Ltrs on 18.7.96. 11 Loan returned to DMC Engineering Department Co-op, Thrift 5,000/-
and Credit Society, Town Hall, Delhi on 28.11.94.
12 Loan repaid to M/s Shelly Chit and Finance (P) Ltd. Hauz 70,000/-
Quazi, Delhi vide Cheque No. 845092 dated 23.1.96 from SB 4,000/- Account No.8389 United Western Bank Ltd. Karol Bagh, New Delhi in the name of Smt. Seema Dixit and in cash.
13 Loan repaid to Smt. Vimlawati vide Cheque No.090209 dated 42,000/-
24.2.95 SB Account no. 12920, Central Bank of India, CC No. 11/12 Page 4 out of 73 pages CBI vs A.D.Dixit & Anr.
Chunna Mandi, Paharganj, Delhi by Smt.Seema Dixit.
14 Loan repaid to Smt.Vimlawati vide cheque no.246738 dated 22,000/-
28.2.95, Canara Bank, Karol Bagh, New Delhi from the account of Sh. A.K.Dixit A/C No. 12453.
15 Loan repaid to Smt.Vimlawati vide cheque no.909122 dated 40,000/-
28.2.95 from A/C No.15058, Canara Bank, Arya Samaj Road, Karol Bagh, New Delhi by Smt.Seema Dixit.
16 Amount invested in purchasing bankers cheque no.408442 44,350/-
dated 6.8.96 by Sh.A.K.Dixit from SBI, Jawalapuri,Delhi. 17 Amount invested in purchasing bankers cheque no.408443 48,500/-
dated 6.8.95 by Sh.A.K.Dixit from SBI, Jawalapuri,Delhi. 18 Amount invested in purchasing bankers cheque no.408496 41,900/-
dated 12.8.95 by Sh.A.K.Dixit from SBI, Jawalapuri,Delhi. 19 Amount invested in purchasing bankers cheque no.408576 49,850/-
dated 6.8.96 by Sh.A.K.Dixit from SBI, Jawalapuri,Delhi. 20 Amount invested in purchasing bankers cheque no.0072918 49,650/-
dated 7.12.95 by Sh.A.K.Dixit from SBI, Jawalapuri,Delhi. 21 Expenditure incurred as locker rent of locker no.111, 1,245/-
maintained at Central Bank of India, Chunna Mandi, Paharganj, Delhi.
22 Total expenditure @ 30% of the carry home salary from 1,10,798/-
28.8.88 to 23.8.96 amounting Rs.3,69,328/-
Total 7,21,875/-
6. As per the case of prosecution, Disproportionate assets held by Sh. Ajay Kumar Dixit as on 23rd August, 1996 are as under:
Income Expenditure Savings Rs.8,19,354/- Rs. 7,21,875/- Rs. 0,97,479/-
Assets/pecuniary resources minus savings is equal to disproportionate assets which is as under:
Assets Savings Disproportionate Assets Rs. 13,73,843/- Rs.0,97,479 /- Rs.12,76,364/- 7. Charges framed against the accused persons are that disproportionate
assets of the accused and his family members during check period between 25 th August, 1988 to 23rd August, 1996 valued Rs.12,76,364/-. His and his family's income during check period was Rs.8,19,354/- and his expenditure was to the tune of Rs. 7,21,875/-. Seema Dixit (A-2) W/o A.K. Dixit (A-1) is charged for intentionally aiding A K Dixit (A-1) in the commission of criminal misconduct by CC No. 11/12 Page 5 out of 73 pages CBI vs A.D.Dixit & Anr.
allowing him to purchase immovable and movable properties in her name. Further allegations are that while working as public servant, accused A.K.Dixit (A-1) obtained a cheque no. 009339 dt. 11th January, 1996 from one Mr. Vinod Sachdeva (PW-16) owner of property no. D-851, New Friends Colony, New Delhi without consideration with the knowledge that he had carried out unauthorized construction and did not took action of removal of the unauthorized construction which was his duty as public servant and thereby allegedly misused his official position by giving undue favour to Mr. Vinod Sachdeva.
Prosecution Witnesses
8. To establish accusation against the accused, prosecution examined 38 witnesses. Brief outline of the witnesses examined by the prosecution is as under:-
8.1. PW-1 S K Aggarwal, Accountant M/s. Khanna Jewellers Pvt. Ltd. 2623, Bank Street, Karol Bagh, New Delhi handed over two documents i.e. cash memo book Ex.PW1/B, Bill no. 5243 Ex.PW1/C showing sale of ornaments to Mrs. Seema Dixit (A-2) in the sum of Rs. 63,400/- and receipt book Ex.PW1/D, cash receipt Ex.PW1/E to the IO Insp. S K Bhati, vide seizure memo Ex.PW1/A. 8.2. PW-2 V K Duggal, Commissioner MCD accorded sanction for prosecution of Ajay Kumar Dixit (A-1) vide sanction order dt. 16.02.2000 Ex.PW2/A. 8.3. PW-3 N K Jain, Jr. Engineer (Civil) posted in the CBI, ACB, New Delhi valued property no. 26/8, Old Rajinder Nagar, New Delhi vide his report dt. 16.02.1999 Ex.PW3/A, breakup of costs ExPW3/B and forwarding letter to the IO S. S. Ali, Dy. S.P., CBI.
8.4. PW-4 Rajan Kumar, employee of M/s. Bharat Bhushan Vij & Co. a firm of Charted Accountant got prepared Bank drafts at the distance of Bharat Bhshan who gave him money, had filled pay-in-slips/ application form (Ex.PW4/A in the name of Raj Mathur GH-9, Paschim Vihar, Delhi, Ex.PW4/C in the name of Sunil Jain, AB-3, Mianwali Nagar, New Delhi and Ex.PW4/E in his own name i.e. Rajan Kumar, 36/1, Haiderpur, Delhi) and after depositing the amounts, he had got issued pay orders/ drafts (Ex.PW4/B for Rs.
49,650/-, Ex.PW4/D for Rs. 44,350/- and Ex.PW4/F for Rs. 48,500/-) favouring Mrs. Seema Dixit (A-2) from State Bank of India, Jawalapuri, Delhi. 8.5. PW-5 Narender Pal, Accountant, working in the office of Executive Engineer, MCD placed on record salary statement of Ajay Kumar Dixit (A-1) during the period CC No. 11/12 Page 6 out of 73 pages CBI vs A.D.Dixit & Anr.
September, 1995 to March, 1996 prepared on the basis of Establishment Cheque Register (ECR). According to which Ajay Kumar Dixit (A-1) had received an amount of Rs. 39,237/- as total salary which after deduction, he was paid Rs. 33,117/-. 8.6. PW-6 Inder Kumar Kapoor, Stamp Vendor who had purportedly sold stamp papers on which three gift deeds were prepared. He testified that he had lost his register on 3rd July, 1994 while going from Gali no.10, Govind Puri to Kalkaji. He placed on record his complaint dt. 05.07.1994 made to SHO P.S. Kalkaji Ex.PW6/A, his complaint addressed to Collector of Stamps Ex.PW6/B and his letter dated 23 rd July, 1994 Ex.PW6/C. 8.7. PW-7 Sh. A. Sebastian, Accountant in Central Establishment department, MCD placed on record two parts of personal file Ex.PW-7/A pertain to A-1. PW-7 deposed that there was no correspondence regarding any information or prior permission for purchase of any immovable property or any loan or gift taken by A-1 & A-2. In this case, in inadvertently two witnesses were numbered PW-7. To avoid confusion, PW-7 Sh. Ashok Kumar Madaan is renumbered as PW-7A.
8.8. PW-7A Ashok Kumar Madaan, proprietor of India Radio and Electric Corporation placed on record Cash Credit Memos Ex.PW-7/1, Ex.PW-7/2, Ex.PW-7/3, Ex.PW-7/4, Ex.PW-7/5 & Ex.PW-7/6 for the sale of VCR, CTV and other items to Ms. Seema Dixit. During cross-examination PW-7A admitted that cash memo was prepared in the name and address of the customer as disclosed by him/her. 8.9. PW-8 R.L. Sharma Manager Canara Bank at Arya Smaj Road. He placed on record Passbook Ex.PW-8/1.
8.10. PW-8A Satya Pal Gour, incharge, Savings Department, Central Bank of India placed on record money multiplier deposit certificate dated 20.10.1995 Ex.PW-8/A/A in the name of A1 & A2. He placed on record letter to S.S. Ali, DSP, Ex.PW8/AB. 8.11. PW-9 Hari Pal Sharma deposed that he had sold plot No. 34 at Murthal, HSIDC to A-2 for a amount of Rs.1,25,000/-.
8.12. PW-10 Sh. Mohan Jeet Singh identified his signatures on seizure memo dated 23.08.1996 Ex.PW-10/A and deposed that he had handed over the documents mentioned therein to I.O.
8.13. PW-11 Sanjay Popli, Manager, Canara Bank Dwarka identified signatures of Sh. S.N. Pandey, Senior Manager on Ex.PW-11/1. He deposed that pass book Ex.PW- 8/1 pertained to saving bank account No.12453 of A-1.
8.14. PW-12 Jayant Manohar Keskar, senior manager, United Western Bank Ltd.
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CBI vs A.D.Dixit & Anr.
deposed that he had handed over some documents Ex.PW-12/B & Ex.PW-12/C to Investigation officer vide seizure memo Ex.PW-12/A. 8.15. PW-13 Sh. Harbans Lal Khurana witness to search at the house of A-1 at Rajender Nagar placed on record documents Ex.PW-13/A, Ex.PW-13/B, Ex.PW-13/C, Ex.PW-13/D, Ex.PW-13/E, Ex.PW-13/G. 8.16. PW-14 SH. G.K. Behel stamp auditor placed on record production cum seizure Mark PW-14/1 through which he had handed over some documents to investigating officer.
8.17. PW-15 Vinod Kumar, Daftri at J& K Bank, Chawri Bazar Delhi deposed that Branch head had given him Pay order and credit voucher Ex.PW-15/1 & Ex.PW-15/2 respectively to be handed over to CGO Complex, CBI Head Quarters. 8.18. PW-16 Vinod Sachdeva running a shop in the name of Archies Gallery at D- 851, New Friends Colony deposed that he knew A.K. Dixit (A-1) since several years and was his friend. He deposed that Cheque Ex.PW-1/F was issued by him in the name of M/s Khanna Jewellers and he had given the same to A-1 in friendship for purchase of jewelleryand cheque was bounced for lack of funds.
8.19. PW-17 Lalit Kumar Gupta, UDC in MCD produced file No. PR/AE/A-17/CED pertaining to property return of A-1. He deposed that the file was dealt by his predecessor Sh.M.P.Singh. PW-17 had identified his signatures on Ex.PW-17/1, Ex.PW-17/2 & Ex.17/3.
8.20. PW-18 Sh. Sanjeev Sabharwal,an Advocate, who was Oath Commissioner deposed that gift deed Ex.P1 (D-62) as well as Ex.P2 (D-63) & Ex.P3 (D-64) were attested by him and they bear his signatures at point A and his seals at point B and his attesting stamps at point C on the gift deeds.
8.21. PW-19 Sh. Puran Chand, officer incharge building of MCD, Karol Bagh had handed over the File No. 271D/KBZ/93, Ex.PW-19/2 to Sh. S.S. Ali, Dy.SP vide seizure memo Ex.PW-19/1.
8.22. PW-20 Sh. B.K. Sharma, Assistant Manager at Central Bank of India, Chuna Mandi Branch identified his signatures at Money multiplier deposit certificate Ex.PW8A/A. 8.23. PW 21 Sh. Azad Singh Chief Executive Officer, Citizen Co-operative Bank placed on record document Ex.PW-21/1 i.e. locker register of locker No.12 in the name of A1 & A2.
8.24. PW 22 Sh. Lal Singh deposed that he was a resident of Plot B-2/4, Mianwali Nagar, Delhi-87 from the date of its construction and stated that no tenant had ever CC No. 11/12 Page 8 out of 73 pages CBI vs A.D.Dixit & Anr.
resided in his house.
8.25. PW-23 Sh. Vijay Kumar Kadiyan placed on record Note sheets Ex.PW-23/1, Ex.PW-23/2 and Ex.PW-23/3. He identified his signatures thereon. 8.26. PW-24 Sh. Bharat Bhushan, Chartered Accountant placed on record income tax returns of A2.
8.27. PW-25 Sh. Jagdish Mohan Gupta owner of property No. AB-3, Mainwali Nagar, Rohtak Road, Delhi deposed that he had never let out his property. 8.28. PW-26 Sh. Vinod Kumar, employee of chartered accountant identified his handwriting on documents Ex.PW-26/1 & 2.
8.29. PW-27, Sh. N.K. Suri, Officer Incharge, SBI, Town Hall Branch, New Delhi proved letters dated 16.10.98 and 07.04.99 addressed to DCP, CBI, ACB, New Delhi Ex.PW-27/A and Ex.PW-27/B, pass book of A.K. Dixit (A-1) Ex.PW-27/C (D-119) and statement of account of A-1 Ex.PW-27/D. 8.30. PW-28 Sh. Mohan Rakesh Sharma, Assistant Manager, United Western Bank, proved torn portion of opening cum specimen signature card as Ex.PW-28/A. 8.31. PW-29 Sh. Joginder Singh, Income Tax Inspector handed over file to S.S. Ali, Dy. SP, CBI pertaining to income tax assessment of Smt. Seema Dixit (A-2). 8.32. PW-30, Sh. S.K. Taneja, Assistant Engineer, DDA, Vigilance Branch accompanied CBI officials to the house of A.K.Dixit (A-1) and witnessed memo Ex.PW- 30/A. He is witness to memo Ex.PW-30/B and observation memo Ex.PW-30/C. 8.33. PW-31 Sh. Ram Dutt Chaudhary, Officer with SBI, Jwalaheri Branch handed over documents to CBI vide memo Ex.PW-31/A. He proved banker's cheques Ex.PW- 31/B (D-82) and Ex.PW-31/C (D-83).
8.34. PW-32, Sh. R.K. Mishra, Additional Director of Vigilance, MCD, Delhi deposed that A.K. Dixit (A-1) was working as AE in Engineering Wing of MCD and proved letter witten by him as Ex.PW-32/A (D-123) and also proved certain other letters written by other officials.
8.35. PW-33, Sh. H.V. Sharma, Junior Accounts Officer, MTNL proved letter Ex.PW- 33/A written by Account Officer to CBI.
8.36. PW-34, Sh. Suraj Bhan Kaim, Assistant Manager, SBI, Jwalapuri Branch, Delhi deposed as regard vouchers for purchasing banker's cheque by Seema Dixit (A-2). 8.37. PW-35, Sh. Rajesh Kumar, Inspector, Delhi Police, associated in investigation of this case was a member of search and raiding party.
8.38. PW-36, Sh. Azad Singh, Inspector, CBI, ACB is the IO of this case, who partly CC No. 11/12 Page 9 out of 73 pages CBI vs A.D.Dixit & Anr.
investigated this case, seized documents vide different seizure memos. PW-36 recorded statements of few witnesses U/S 161 Cr.P.C and filed charge-sheet. 8.39. CW-1 Sh. Gulab Singh, Executive Engineer, NDMC placed on record original service book and personal file of A.K.Dixit (A-1) and placed on record copy of order vide which A-1 was promoted to the post of Executive Engineer (Civil). Statement of Accused
9. In their statements u/s 313 Cr.P.C. pleaded innocence and false implication in this case. Accused submitted that amount received by them during check period were deliberately shrunk, cost of immovable property, movable property or expenses during check period was highly inflated and same amounts had been used twice, once in movable property and again in expenditure. Accused submitted that IO Inspector Azad Singh did not taken into account the amount received by them prior to check period and concealed Income Tax Return of Seema Dixit (A-2) prior to the check period. Accused submitted that amount received from paying guest Dheeraj Gupta (Ex.PW36/D-8) and Sameer Bhattacharya (Ex.PW-36/D-9) and full rent received from A. Gopinathan (Ex.PW- 36/D-10 & D-11) was not included into the income of Seema Dixit (A-2). Amount of Rs.85,000/- given by Sh. K.N. Dixit through demand draft as loan was not been counted in the income and 5 gift deeds (Ex.P-1 to P-5) amounting to Rs.1,23,000/- given by Sh. K.N. Dixit, Sh .K.N. Shukla and Arun Shukla were not counted in the income. House hold articles reflected in seizure cum search memo were counted twice once in expenditure and again in house hold articles. Accused submitted that conclusion drawn by IO Inspector Azad Singh in respect of Gift Deed Ex.P-1 to P-5 and banker cheques are baseless and based upon unfair and bias investigation. Inspector Azad Singh withheld several material and important witnesses and concealed their statements recorded during the investigation of this case, which were necessary to reach the just conclusion of the case.
10. I have heard submission advanced by Sh.Surender Sinha, Ld Special Public Prosecutor appearing for CBI and Sh. Mohd. Nasir, Ld counsel appearing for the accused.
11. It is settled position of law that under Section 13 (1)(e) of the P.C. Act, 1988 CC No. 11/12 Page 10 out of 73 pages CBI vs A.D.Dixit & Anr.
it is not mere acquisition of property that constitutes an offence but it is the failure to satisfactorily account for such possession that makes the possession objectionable as offending the law. To substantiate charge under S. 13(1)(e) of the Act, the prosecution must establish the following ingredients, namely,
(i) that accused is a public servant,
(ii) nature and extent of the pecuniary resources of property found in his possession,
(iii) His known sources of income, i.e. known to the prosecution &
(iv) it must prove, quite objectively, that resources or property found in possession of the accused were disproportionate to his known sources of income. Once, these ingredients are satisfactorily established, offence of criminal misconduct under Section 13(1)(e) is complete, unless the accused is able to account for such resources or property. In other words, only after the prosecution has proved the required ingredients, onus of satisfactorily accounting for the possession of such resources or property shifts to the accused.
12. Before discussion of evidence, it may also be noted that cardinal principle which has always to be kept in view in our system of administration of justice for criminal cases is that a person arrayed as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. Another golden thread which runs through the web of the administration of justice in criminal cases is that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court refrains from recording a finding of guilt of the accused. It is also well settled that in case, the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt.
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CBI vs A.D.Dixit & Anr.
13. Points which emerge for determination in this case are:
(i) Whether during check period between 25th August, 1988 to 23rd August, 1996, accused Ajay Kumar Dixit (A-1) being public servant acquired assets worth Rs.12,76,364/- which were disproportionate to his known source of income for which he could not satisfactorily account?
(ii) Whether Mrs. Seema Dixit (A-2) intentionally aided Ajay Kumar Dixit (A-1) in the commission of criminal misconduct mentioned in point no. (i) above by allowing him to purchase immovable and movable properties in her name.
(iii) Whether Accused Ajay Kumar Dixt (A-1) accepted without consideration a valuable thing i.e. a cheque no. 009339, drawn on Bank of Baroda, Bharat Nagar, dt. 11th January, 1996 from one Mr. Vinod Sachdeva, owner of property no. D-851, New Friends Colony, New Delhi with the knowledge that he had carried out unauthorized construction and did not take any action for removal of the unauthorized construction and thereby misused his official position by showing undue favour to Mr. Vinod Sachdeva.
Discussion of evidence as regards assessment of income
14. On the touchstone of legal position noted above, this court shall now take up and discuss evidence on record serial wise each item mentioned in the charge sheet. To find out the disproportionate assets acquired by A.K. Dixit (A-1) during the check period, first question which must be considered in order to determine the applicability of Section 13 (1)(e) P.C. Act, 1988 is, what was the total income of the accused during the check period?
15. As per charge sheet total income from the known sources of the accused A.K. Dixit and other members of his family for the check period i.e. 25th August, 1988 to 23rd August, 1996 has been calculated as Rs.8,19,354/-. As per Item No.1, 2 & 3 in the head of Income of the charge-sheet. Carry Home Salary for the period from 25th August 1988 to 23rd August 1996 is Rs.3,50,304/-, Notional pay for the period from 1st June 1990 to 16th July 1990 is Rs.4,869/- and Notional pay for the period from 1st June 1994 to 8th September 1994 is Rs.14,185. Thus, carry home salary of the accused A.K. Dixit (A-1) was Rs.3,69,328/-. Salary Statement Ex.PW-5/A and the letter Ex.PW-32/A addressed by R.K. Mishra (PW-32), CC No. 11/12 Page 12 out of 73 pages CBI vs A.D.Dixit & Anr.
Additional Director of Vigilance, MCD and the letters Ex.PW-32/B to D signed by Sh. P.K. Sharma, ALO, MCD, showing the pay particulars of A.K. Dixit (A-1) during the check period are on record. In his reply to question no. 58 during statement u/s 313 Cr.P.C, accused A.K. Dixit (A-1) has not disputed this fact as regards carry home salary including Notional Pay as Rs.3,69,328/-.
16. Item No.4 in the head of income is sale of jewelery in the sum of Rs.1,49,996/-. Ex.P-20 is bank receipt and Ex.PW-28/B is certified copy of account statement showing deposit of Rs.1,49,996/- on 26th June 1995. Accused have admitted this amount. Item No.5 is the Income of Rs.70,000/- from M/s Shelly Chit and Finance Pvt. Ltd., Hauz Quazi. Ex.P-20 and Ex.PW-28/B show this amount. Accused have admitted this amount. Item no.6 is Rs.1,15,000/- as loan received from Smt. Vimlawati. Item no.7 is Income from LIC policy of Rs.10,000/-. Item No.8 is Rs. 10,000/- as Income from MCD Engineering Department thrift and credit security. Item no.9 of the head of income is earning of Rs.75,000/- as rent from security from M/s Evergo International Movers as regards basement of premises no. 26/8, Old Rajinder Nagar for the period January 1996 to December 1996. Relevant document in this regard is receipt Ex.P-6/1. Item no. 6 to 9 are admitted by the accused persons.
17. As per case of the prosecution, Item no.10 is Rs.20,000/- as income from rent of property no. 26/8, Old Rajinder Nagar, New Delhi. This income is disputed by the accused persons. Accused persons have stated that Smt. Seema Dixit (A-
2) W/o Sh. A.K. Dixit (A-1) received as rent Rs.60,000/- of the above said property. It is submitted that IO intentionally and deliberately did not count the total amount of Rs. 60,000/- despite the rent receipts (Ex. P-6/2 to 13) available on record. In this connection, Ld counsel pointed out that A.Gopinathan the tenant was examined by the IO u/s 161 Cr.P.C. in the 1 st week of April 1997 and he had stated that he paid Rs. 60,000/- by way of rent @ Rs. 5,000/- per month. He also produced 12 rent receipts, which were signed by Seema Dixit. These were taken into possession by a seizer memo. There is no valid ground for the I.O. to consider only Rs. 20,000/- as rent and not 60,000/- in view of the documentary evidence of rent receipts i.e. Ex.P/6-2 to 6-13. In response to question no.64, accused have CC No. 11/12 Page 13 out of 73 pages CBI vs A.D.Dixit & Anr.
stated that A-2 had earned Rs.60,000/- as rent. Rent receipts Ex.P-6/2 to 13 on record of Rs.5,000/- each show that Smt. Seema Dixit (A-2) had received Rs.60,000/- as rent during the period January 1996 to December 1996. These receipts were seized by the IO S.K. Bhati vide production cum seizure memo Ex.P-36/D-10 dated 2nd April 1997. In view of the rent receipts on record seized by the investigating officer, it is clear that Smt. Seema Dixit (A-2) had received Rs.60,000/- as rent. Statement u/s 161 Cr.P.C. of A.Gopinathan, Proprietor of M/s Evergo International Movers, recorded by the IO during investigation and placed on record by the accused in his statement in response to question no.67, further support defence version that the rent received by accused was Rs.60,000/- and not Rs.20,000/- as alleged in the charge-sheet. Thus Rs.40,000/- is required to be added on this count of income of accused.
18. Sh. Mohd. Nasir, Ld counsel appearing for the accused submitted that the figures arrived at by investigating officer Insp.Azad Singh (PW-36) who filed the charge-sheet, are wrong as amount received by Sh.A.K.Dixit and Smt. Seema Dixit during the check period, has been deliberately shrunk, cost of immovable property, movable property and expenses during the check period has been highly inflated and at times the same amounts have been counted twice, once in movable property and again in the expenses. It is argued that this is not only illegal but a deliberate biased investigation, actuated with malice and this fact is also admitted in his evidence by the IO before the court and thus, amount calculated as total income by the IO as Rs.8,19,354/- is wrong. Ld counsel enumerated several items, gifts, loan and interests which have not been taken into account by the IO. Now, this court will consider these items of income one by one. This fact has been stated by the accused persons in response to question no.67 in statement u/s 313 Cr.P.C. as well and in response to question no.64, accused persons have stated that IO intentionally and knowingly withheld various amount received as gifts, loan and amount brought by A-2 from her parental house at the time of marriage and further did not count the interest earned by A-2 and IO showed the amount as items in expenditure and not in the income and several amounts are shown as assets.
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Income of Rs.90,000/- derived from paying guest
19. In their statement u/s 313 Cr.P.C, accused have stated that there existed an income of Rs.45,000/- of Smt. Seema Dixit (A-2) from the paying guest Sh. Dheeraj Gupta and an income of Rs. 45000/- from Sh. Sameer Bhattacharya and IO withheld statements of Dheeraj Gupta (Ex.PW36/D-8) and Sameer Bhattacharya (Ex. PW36/D-9). Ld defence counsel submitted that exclusion of Rs.45,000 +45,000/- i.e. Rs.90,000/-) from income of the accused is a glaring example of biased investigation of case by IO Inspector Azad Singh. On page 8 of the charge sheet in 2nd para, it has been stated by the IO that "amount of R.90,000/- could not be attributed to the known source of income of A.K.Dixit because he could not produce the paying guests Dheeraj Gupta and Sameer Bhattacharya for further examination and at present these two persons were not available at B-E95, Hari Nagar, New Delhi." In this regard it is submitted that in his deposition Inspector Azad Singh as PW-36 admitted that, he did not send notices to the paying guest at their permanent addresses already available on record", which clearly shows that the investigation by the IO was not fair since beginning.
20. As per defence version, these two person had lived at his 26/8, Old Rajinder Nagar house as paying guest for 15 months each and had been paying Rs.3,000/- each, per month. Accused was asked by the investigating agency in August,1997 to produce both of them and he did so and both of them, were examined in his presence on 7 th August,1997, u/s 161 Cr.P.C. Both of them stated that they were friends and were students in 1995-96 and were staying at the house of Seema Dixit as paying guest for 15 months from January 1995 to March, 1996 and were regularly paying Rs.3,000/- each, per month to Seema Dixit. Both of them disclosed their address as well as permanent address as E-18, Vivek Vihar, Gwalior (M.P.) and 172, Tansen Nagar, Gawalior. It is submitted that if there was any doubt, Inspector Azad Singh could have summoned them from their permanent address and with a view to deprive the accused from income of Rs.90,000/-, IO acted unscrupulously and has not even cited them in list of witnesses. Attention of the court was drawn towards their statements Ex.PW-36/D- 8 & D-9 respectively on record.
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21. In his deposition, IO Insp. Azad Singh (PW-36) who partly investigated the case and filed the charge sheet stated that previous IOs Insp. S.K. Bhati had recorded statements u/s 161 Cr.P.C. of Dheeraj Gupta (Ex.PW-36/D-8) and of Sameer Bhatacharya (Ex.PW-36/D-9). PW-36 IO Insp. Azad Singh admitted that Dheeraj Gupta and Sameer Bhatacharya in their statements had admitted that they were paying Rs.3,000/- per month as paying guests at 26/8 Old Rajinder Nagar house. PW-36 admitted that he had not sent any notice at their permanent addresses. On asking, IO PW-36 stated that since no rent receipt or any rent agreement was shown to him by the accused, therefore, he had not taken into account income of Rs.90,000/- accrued to A-2 from the paying guests. Even in the absence of any rent receipt or rent agreement, there is no reason to discard the oral testimony of paying guests who were although examined as witnesses during investigation by the Investigating Officer were neither examined by the prosecution nor listed as witnesses in the list of witnesses by IO.
22. Furthermore, in the cross-examination, investigating officer Insp. Azad Singh (PW-36) admitted that ITR of Seema Dixit (A-2) was requisitioned from Income Tax Department but they furnished ITR of the year 1996-97 and 1997-98 which is contained in file D-32 which were seized by the previous IO Sh. S.S. Ali vide seizure memo dated 7th December 1998. Income Tax returns/computation of income for the assessment year 1996-97 Ex.P-24, income from two paying guests at the rate of Rs.3,000/- P.M is reflected. On consideration of material on record, this court finds that accused are entitled to be given a credit of Rs.90,000/- as income derived from the rent paid by paying guests Dheerj Gupta and Sameer Bhatacharya, which was wrongly not taken into account by CBI. Income of the accused prior to the check period not taken into account
23. Defence version is that before check period, accused A.K.Dixit worked as Construction Engineer in Unitech Ltd. w.e.f. 1.3.1986 to 1.9.1986 and w.e.f 23.9.1986 to 30.4.1987. He earned Rs.26,000/- as remuneration and thereafter, he worked in M/s Tantia Construction Co. Ltd. as Assistant Engineer w.e.f. May 1987 to July 1988, from where he earned Rs.30,000/-. It is submitted that at that time A.K. Dixit (A-1) was unmarried and was residing in joint family with his father at CC No. 11/12 Page 16 out of 73 pages CBI vs A.D.Dixit & Anr.
Gwaliar and his father was in service and thus he had no expenses and when he was posted at Unitec Jabalpur, he was on site duty and was having free accommodation and meals in the mess. Thus, accused was having assets of Rs.56,000/-. During his cross-examination, IO/PW-36 was shown personal file of Sh.A.K.Dixit (A-1) Ex.PW-7/A (D-30), who admitted that said file contained at page No.3/C (Ex.PW36/D-1), copy of certificate of M/s. Tantia Constructions Company Ltd., certifying that Sh. Ajay Dixit S/o Sh. K.N. Dixit, worked as Asstt. Engineer with the said organization since 01st May 1987 to 1st July, 1988 and that he was getting Rs.2000/- as consolidated salary per month.
24. In his deposition, PW-36 admitted that file contained at page No.1/C (Ex.PW-36/D3), copy of certificate of M/s. Unitech Ltd., certifying that Sh. Ajay Kumar Dixit S/o Sh. K.N. Dixit, worked at LPG Bottling plants work side Shahpura, Jabalpur as a Construction Engineer with the said organization since 01st March 1986 to 1st September, 1986 and was getting Rs.2000/- as consolidated salary per month. PW-36 admitted that file contained at page No.2/C (Ex.PW36/D-2), copy of service certificate of M/s. Unitech Ltd., certifying that Sh. Ajay Kumar Dixit S/o Sh. K.N. Dixit, worked as Construction Engineer with the said organization since 23rd September, 1986 to 30th April, 1987 and was having Rs.1,100/- as basic salary at the time of leaving service. PW-36 denied the suggestion that he had deliberately not verified the said certificates and took the same into consideration, while working out the income of the accused. PW-36 was asked to explain reason for not verifying the salary certificates available in personal file of (A-1) and taking into account the said previous income of the accused into consideration, his response was that he did not remember, if he had seen or perused the said previous salary certificates during investigation. Then he attempted to explain that may be due to oversight or inadvertently the said certificates could not be verified during investigation. This explanation clearly reflects casual approach of investigating agency. Since house-hold expenditure is taken in charge-sheet in item no.22 is 30% of the carry home salary. Therefore, after 30% reduction of the expenditure from the carry home salary of Rs.56,000/-, this court finds that credit of a sum of Rs.39,200/- was required to be given to the accused and taken into consideration CC No. 11/12 Page 17 out of 73 pages CBI vs A.D.Dixit & Anr.
by the investigating agency as his assets which he was possessing prior to the check period, which has not been taken into account wrongly by the investigating agency and prosecution. Thus, accused is entitled to Rs.39,200/- on this count. Other income/receipts of the accused persons not taken into account by CBI.
25. Next item of income/receipt raised on behalf of accused by the defence counsel is sum of Rs.4,25,880/- brought by Seema Dixit (A-2) in her marriage and interest in the sum of Rs.1,30,263/- received as interest income by Smt. Seema Dixit (A-2) from her brothers on loans advanced bu her to brothers and other close relatives since years 1992-93 to 1995-96. Learned Defence counsel submitted that Seema Dixit (A-2) had given loan of Rs.1,05,000/- to her brother Parmod Kumar Shukla and Rs.1,03,000/- to his other brother Arun Shukla which IO PW-36 himself has shown wrongly in movable assets of the accused although it is mentioned in the charge sheet itself as 'out of her income'. It is submitted that A-2 was receiving interest on the loans from her brothers and was regularly showing the same in her income tax returns, which were assessed and accepted by the Income Tax Officer and as such are unchallengeable. He drew attention of the court towards para 6 of Mohan Lal vs State of MP through SP General Indore, 1, wherein Supreme Court observed that:-
"it may be added that most of the documents relate to the income tax returns or income tax assessment orders. All these documents pertain to the record prior to 26.03.1993. Some of them even relate to the year 1998. In the normal course the documents could not have been prepared in anticipation that the respondent would have to face such charges on a future date. the documents being the orders of assessment or returns filed with the Income Tax Authorities or their face value supported the case of the respondent".
26. It is urged on behalf of accused that details of amounts shown by her and accepted by the Income Tax Officers are as follows. For the year ending on 31st March 1993=27,800/-; 31st March 1994= 30,750/-;31st March 1995 = 36,220/- and
1. Manu/MP/1408/2012 CC No. 11/12 Page 18 out of 73 pages CBI vs A.D.Dixit & Anr.
for the year ending on 31st March 1996 =32,310/-. Thus the total interest claimed on the loan amount advanced to Parmod Shukla, Arun Shukla, Himshikha Dixit and Pushpa Tripathy was Rs. 1,32,263/-. It is submitted that this amount apart from the amount of Rs.4,25,880/- was brought by Seema Dixit (A-2) in her marriage and therefore, has to be added and included in income of the accused. Ld counsel submitted that Parmod Shukla, brother of Seema Dixit was examined by the IO u/s 161 Cr.P.C, wherein he had stated that he had given 12,600/- to Seema Dixit in cash and therefore, there is no reason to disbelieve him without assigning any reason but IO did not list Parmod Shukla as a witness in the calendar of witnesses.
27. In his statement u/s 161 Cr.P.C. (Ex.PW-36/D-12) recorded by IO Insp. S.K. Bhati on 25th April 1997, Parmod Shukla stated that he had taken loan of Rs.1 lac @ 1.5% interest from Smt. Seema Dixit (A-2) on 30th March 1995 and had repaid in installments i.e. Rs. 12,600/- was paid in cash, Rs.41,900/- vide pay order no. 408496, State Bank of India, Jwalapuri, New Delhi on 12th August 1996 and Rs.49,850/- vide pay order no. 408576 dated 19th August 1996. IO PW-36 in cross examination deposed that it was a matter of record that Rs.12,600/- was paid in cash by Parmod Shukla to Smt. Seema Dixit (A-2). Moreover the said interest income of Rs.12,600/- from Parmod Shukla is also reflected in the ITR of Assessment Year 1996-97. Similarly ITR of the year 1996-97 (Ex.P-24) shows interest accrued from Arun Shukla as Rs.12,360/-, Rs.3,700/- from Pushpa Tripathi and Rs.3,650/- from Him Shikha Dixit. Apart from the interest accrued on the FIR as Rs.1,200/- and saving bank interest as Rs.208/- is reflected therein.
28. It is pointed out that the file containing the copies of the income tax return for the year 1994-95, 1995-96, 1996-97, 1997-98, 1998-99 which Seema Dixit A-2 was having was seized by I.O. Inspector S.S. Ali on 6th January, 1997. The seizure memo Ex.D-61 on record supports the defence version that the Income Tax file of A-2 having income tax returns for the years years 1994-95, 1995-96, 1996-97, 1997-98, 1998-99 was seized but the said file or the income tax returns have not been placed or proved on record by the prosecution. Admittedly, statements u/s 161 Cr.P.C. were recorded by the IO during investigation, of the CC No. 11/12 Page 19 out of 73 pages CBI vs A.D.Dixit & Anr.
brothers of Seema Dixit (A-2) i.e. (of Arun Shukla Ex.PW-36/D-8, of Pushpa Tripathi Ex.PW-36/D-16, of Him Shikha Dixit Ex.PW-36/D-17). These witnesses were neither arrayed in the list of witnesses nor have been examined by the prosecution. Indisputably, the interest income derived by Seema Dixit (A-2) has not been shown in the income of the accused in the charge-sheet. Accused is entitled to the interest income which is duly reflected in the Income tax returns, as indicated from Ex.P-24 admitted by the accused.
29. In his deposition, IO PW-36 admitted that as per the balance sheet Ex.P-24 (D-32) of Mrs. Seema Dixit (A-2) as on 31.03.1996, the capital account shows at serial No.1 balance b/f "Rs.5,05,650/-". PW-36 had examined Sh. Bharat Bhushan, CA. PW-36 testified that he had not carried on any investigation or made inquiries from Ms. Seema Dixit (A-2), as regards this amount of Rs.5,05,650/-. On asking specifically, IO PW-36 deposed that he could not comment upon the fact that Ms. Seema Dixit had brought Rs.4,25,880/- since the time before her marriage or if the same is reflected in the ITR for the assessment year 1992-93.
30. In this context, observations made in para 19 of case reported as State Inspector of Police Vishakhapatnam Vs. Surya Sankaran Karri 2, may be noted which are as under:-
"Illegality apart, the manner in which the investigation was conducted, is condemnable. The least that a court of law would expect from the prosecution is that the investigation would be a fair one. It would not only be carried out from the stand of the prosecution, but also the defence, particularly, in view of the fact that the onus of proof may shift to the accused at a later stage. The evidence of PW 41 raises doubts about his bona fide. Why he did not examine important witnesses and as to why he had not taken into consideration the relevant documentary evidence has not been explained. He did not even care to ascertain the correctness or otherwise of the status of both the respondent and his wife before the Income Tax Department.
2 (2006) 7 SCC 172
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Above all, he did not produce before the court the statements made by the appellant, his wife and those of his sons, although they were relevant."
31. It is pertinent also to note the observation made by Hon'ble Supreme Court in DSP, Chennai vs K. Inbasagaran3 in para 17 thereof which are as under:-
"when the accused has come forward with the plea that all the money which has been recovered from his house and the purchase of real estate or the recovery of the gold and other deposits in the bank, all have been owned by his wife, then, in that situation how can all these recoveries of unaccounted money be laid at his hands. The question is, when the accused has provided satisfactory explanation that all the money belonged to his wife and she has owned it and the Income Tax Department has assessed it in her hand, then, in that case, whether he could be charged under the Prevention of Corruption Act. It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband as the case may be, it cannot be fastened on the husband or the head of the family. It is true that prosecution in the present case has tried its best to lead evidence to show that all these monies belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her by not showing in the income tax returns and she has accepted the whole responsibility, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of the wealth belonged to the husband and how much belonged to the wife. The prosecution has not been able to lead evidence to establish that some of the money could be held in the hands of the accused. In 3 (2006) 1 SCC 420 CC No. 11/12 Page 21 out of 73 pages CBI vs A.D.Dixit & Anr.
case of joint possession it is very difficult when one of the persons accepted the entire responsibility. The wife of the accused has not been prosecuted and it is only the husband which has been charged being a public servant. In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, other witnesses who have been produced on behalf of the accused, coupled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by the Income Tax Department, it will not be proper to hold the accused guilty under the Prevention of Corruption Act as his explanation appears to be plausible and justifiable."
32. In a recent case reported as "Kedari Lal Vs. State of MP 4, Hon'ble Supreme Court observed as under:-
"It is not the case that the receipts so projected were bogus or was part of a calculated device. The fact that these amounts were actually received from the sources so named is not in dispute. Furthermore, these amounts are well reflected in the Income Tax Returns filed by the appellant. In similar circumstances, the acquisitions being reflected in Income Tax Returns weighed with this court in granting relief to the public servant in "M. Krishana Reddy Vs. State5", wherein in Para 14, it was observed:-
".....Therefore, on the face of these unassailable documents i.e. the wealth tax and income tax returns, we hold that the appellant is entitled to have a deduction of Rs.56,240/- from the disproportionate assets of Rs.2,37,842/-." Similarly in D.S.P Chennai Vs. K. Ibasagarain6, the fact that the money was treated in the hands of the wife of the public servant and that she was assessed by the Income Tax Department was taken note of while accepting the explanation
4. Cr. App No. 782 of 2011 Decided by S.C on 23/03/2015
5. 1992(4) SCC 49 6 2006 (1) SCC 420 CC No. 11/12 Page 22 out of 73 pages CBI vs A.D.Dixit & Anr.
given by the public servant."
33. It is particularly noteworthy that defence version is supported by the allegation made in the charge-sheet itself wherein a sum of Rs.3,25,000/- allegedly advanced as loan to her brothers and relatives noted in the charge-sheet against entry no. 12 to 16 of movable assets at page 4 of the charge-sheet and words 'as per her income' specifically stated therein are significant which indicate that investigative agency was aware about income of A-2 from which she advanced loan of Rs.3,25,000/- total of entry no. 12 to 16 but wrongly described them in movable assets, without even specifying and proving when the said loans were advanced and what was her income at the time of her marriage or stridhan/amount brought by her in marriage as explained by A-2 herein was incorrect. There is no justification for outrightly rejecting/discarding statements u/s 161 Cr.P.C. of relatives. Pleading an accusation will not suffice and burden remains on the prosecution to specifically establish accusations beyond shadow of reasonable doubts and accused has to prove his defence by preponderance of probability and if the defence version is shown to be probable that would be sufficient to reject prosecution's version. In view of testimony of IO/PW-36 and PW-24, this court finds the defence version is probable that a sum of Rs.4,25,880/- was brought by Seema Dixit (A-2) at the time of her marriage which capital was enhanced as Rs.5,05,650/- and reflected in the ITR of the AY 1996-97 (Ex.P-24). To sum up, this court finds that the amount of Rs.4,25,880/- plus the interest 1,12,080 i.e. 5,05,650-425,880 + 32,310 (which is the interest on the loans reflected in the ITR of the year 1996-97 Ex.P-24) is required to be added in the income of Seema Dixit (A-2).
GIFT DEEDS executed by the relatives in favour of Shiny Dixit daughter of the A-1 and A-2 discarded and not taken into account by the investigative agency
34. As per the allegations in the charge-sheet investigation revealed that the stamp papers used for preparing the gift deeds mentioned at S No.1 to 3 were purchased from I.K.Kapoor (PW-6), stamp agent License No.264. On examining Sh. I.K. Kapoor, it was revealed that the stamp paper issue register issued to him CC No. 11/12 Page 23 out of 73 pages CBI vs A.D.Dixit & Anr.
had been lost since 3.7.94, whereas these stamp papers bear the date of issue as 5.7.94. This fact was verified from the record of the collector of stamps, Delhi and the auditor of this office also confirmed that Sh. I.K. Kapoor has intimated his office for the loss of his stamp paper issue register of the said period. As per prosecution, above explained income cannot be treated as income from the known source of income of A.K. Dixit (A-1) because he has prepared these gift deeds just for the purpose of creating a defence which is false and fabricated. In the same manner the gift deeds mentioned at S No. 4 and 5, the gift deed papers were purchased from Sh. S.N. Saxena, as apparent from the seal affixed on the reverse side of the stamp papers. As per the case of prosecution, the record collected from the office of Collector of stamps, Delhi, shows that Sh. S.N. Saxena did not sell the stamp papers bearing no. 6504 and 6505 dated 18th October 1995 and these facts prove that A.K. Dixit did not receive any cash from the alleged gift giver and has created a defence to increase his income. Hence, as per charge-sheet, income of Rs.1,23,000/- as calculated from the five gift deeds cannot be taken as income of A.K. Dixit (A-1) from his known source of income.
35. A.K. Dixit, (A-1) had claimed the following income from the Gift Deeds as shown below:-
A Sh. Arun Shukla Dated 05.06.1994 Rs.23,000/- Brother of A-2 B Sh. K.M. Shujkla Dated 03.09.1994 Rs.30,000/- Father of A-2 C Sh. K.N.Dixit Dated 19.10.1994 Rs.28,000/- Father of A-1 D Sh. K.N.Dixit Dated 29.11.1995 Rs.17,000/- Father of A-1 E Sh. K.M. Shukla Dated 20.11.1995 Rs.25,000/- Father of A-2 Above noted Gifts have been shown to be given to Miss Shiny Dixit, daughter of A.K. Dixit, (A-1) and Seema Dixit (A-2). Sh. Surender Sinha, Ld. Special PP submitted that 3 Gifts were given within a short span of four and half months and two gifts were given within an interval of 10 days. It is submitted that there was no religious or other occasion as mentioned in section 13 of the C.C. Conduct Rules, 1964, whereby public servant could accept gift from the near relatives and friends.
36. It is submitted that in this case, accused A.K.Dixit (A-1) had neither CC No. 11/12 Page 24 out of 73 pages CBI vs A.D.Dixit & Anr.
obtained sanction, nor given intimation to his department about the receipts of Gifts within stipulated period of time as per rules and norms of C.C. Conduct Rules, 1964. Moreover, Smt. Seema Dixit (A-2) did not reflect said amount of gifts in her Income Tax Returns, during investigation. Ld PP argued that therefore, amount of Rs. 1,23,000/- was not considered as income from the known sources of income and may be included in the D.A, and is ill gotten money of A-1 which has been adjusted through book entries just to create his defence.
37. It is argued by Ld Prosecutor on behalf of the prosecution that this fact is proved from the deposition of PW-6 and document Ex.PW-6/A, B and C and P-1, P-2 and P-3. It is submitted that stamp papers, on which above mentioned gift deeds (Sl. No. A, B and C) were got prepared, were not purchased on the dates, mentioned on the reverse side of each stamp papers as Sh. Inder Kumar Kapoor (PW-6) has deposed before this Court that his register for the sale of stamp papers had been lost since 3.7.1994 and he intimated to the office of the Collector of Stamps in this regard vide exhibit vide Ex. PW-6/C and EX.PW-6/B. He made complaint (Ex.PW-6/A) to the SHO/PS Kalkaji on 05.07.1994. PW-6 deposed that on the reverse side, stamp affixed on each of three stamp papers, shows date of purchase as 05.07.1994, whereas his register had been lost on 03.07.1994. This fact has been proved from the documents collected from the office of the collector of stamps and with the statements of Sh. G.K. Bhel (PW-14).
38. Sh. Sinha, Learned Prosecutor contended that other two stamp papers (Serial no. D & E) have been shown purchased on 18.10.1995, but record collected from the office of the collector of stamps (No.D-127), clearly shows that stamp papers at Sl. No 6504 and 6505, were not sold to Miss. Shiny Dixit. Moreover, stamp papers of these above two numbers have been shown sold on 17.0.1995 instead of 18.10.1995. It is argued that on the basis of evidence, it can be inferred from the circumstances that accused persons have tried their level best to divert their ill gotten money of Rs.1,23,000/- through so called income by creating such anti-dated documents, which are false on the face of the document themselves and adjusted through book entries to create his defence.
39. Per contra, Sh. Mohd.Nasir, Learned counsel appearing for the accused CC No. 11/12 Page 25 out of 73 pages CBI vs A.D.Dixit & Anr.
submitted that these were the gifts having total amount Rs.1,23,000/-, were given by family members of A.K. Dixit and Seema Dixit in "Chola Ceremony" of their daughter Shiny Dixit (who was first child). It is submitted that I.O. struck off this amount on an unconvincing reason stating that first three gift deeds stamps were allegedly purchased from I.K. Kapoor, stamp vendor, who had allegedly lost his stamp registers on 3.7.94 and had lodged report about it "on 5.7.94" and also intimated the collector of stamps, whereas there is fool proof evidence on record that these stamp papers were sold by I.K. Kapoor the stamp vendor or his representative. On the reverse of gift deeds dated 5 th June 1994 by Arun Shukla, dt. 9th October 1994 by K.N. Dixit and dt. 3 rd September 1994 by K.N. Dixit, there is seal of I.K. Kapoor, stamp vendor and his initials. It is argued that reasoning given in charge-sheet by Insp. I.O. Azad Singh is absurd.
40. Ld defence counsel argued that foremost is the statement of Gautam Parkash cited as PW-24 in the list of witnesses who is (withheld by the CBI). Gautam Parkash stated that he was a stamp vendor and was Union leader of Stamp vendors of Delhi. Hence he knew mostly all of them. He knew I.K. Kapoor, stamp vendor, Delhi who had left his job. Those non judicial stamp papers of Rs. 2/- each, bear his initials and seal. This statement was taken in April 1999 by DSP, S.S. Ali, whereas I.K. Kapoor was examined by Inspector, Azad Singh on 26.8.99, to neutralize statement of an independent witness. Statement of I.K. Kapoor (PW-
6) is a general technique, stamp vendors usually adopt and is known to everybody. PW-6 stated that seal impressions were not of his seal, nor writing on the reverse was his handwriting. He further stated that his stamp registers along with 2 other registers of Gautam Parkash (stamp agent No.113) were lost by him while he was coming after getting those register, binded. He intimated SHO Kalkaji on 5.7.94 about the loss and had filed an indemnity bond in favour of collector of Stamps.
41. As regard the sample of seal impression for year 1994, PW-6 stated that he will trace the same and produce it. Insp. Azad Singh who recorded statement, used the same to discard gifts given by near relatives to the daughter of A.K.Dixit, did not care to investigate. IO (PW-36) did not confront I.K. Kapoor (PW-6), stamp vendor with Gautam Parkash, stamp vendor who had stated that seal/impression CC No. 11/12 Page 26 out of 73 pages CBI vs A.D.Dixit & Anr.
and handwriting on the reverse of 3 non judicial stamp papers were of I.K. Kapoor. More so, I.K.Kapoor had stated that two registers which were lost, belonged to Gautam Parkash. Ld counsel argued that testimony of PW-6 cannot be believed as the register, which were means of livelihood of I.K.Kapoor, were lost on 3.7.94, it is not understandable why he did not make a report on that day at the police station and why on 5.7.94.
42. It is further pointed out that the cross-examination of PW-6 I.K.Kapoor could not be completed due to his death on 1.12.2012, hence his incomplete evidence cannot be read in evidence whereas perusal of report lodged to police by PW-6 shows that it was a formality and language is so worded that no action was required by the police, who never produced his seal before the IO although he had promised that he would do so. I.K. Kapoor's handwriting was not compared with the handwriting on the reverse of the 3 stamp papers. PW-6 has not stated anything about gift deed, on the reverse of which the date is 5 th June, 1994 when the registers were allegedly lost and IO, therefore, could not believe a person against whose statement, there was another stamp vendor's statement. It is submitted that version which is favourable to accused given by Gautam Parkash has to be accepted as per law.
43. Ld counsel contended that explanation regarding other two non judicial papers which were allegedly purchased on 18 th October 1995 and 19th October 1995 is also absurd as stamp papers stated to have been purchased from S.N. Saxena. In his statement u/s 161 Cr.P.C Dt.26.4.99 before S.S. Ali, DSP/CBI, Gautam Parkash clearly stated that Sh.S.N. Saxena was a stamp vendor in Tis Hazari, Delhi who left the job about one year back and those Rs.2/- non judicial stamp papers bear the seal of S.N. Saxena and also his initials.
44. Ld defence counsel submitted that Inspector Azad Singh has therefore, wrongly excluded gift money from the income of A.K.Dixit and Seema Dixit specially when Oath Commissioner Sh.Sanjiv Sabbarwal (PW-18) clearly deposed on oath before the court about the attestation of the gift deeds i.e. Ex.P-1 (D-62), Ex.P-2 (D-63) and Ex.P-3 (D-64) and also family members/donors categorically explained the gifts deeds in their statement under section 161 Cr.p.c. recorded by CC No. 11/12 Page 27 out of 73 pages CBI vs A.D.Dixit & Anr.
the previous IO. However IO Azad Singh did not examine or recorded statement of any such witness/donors. Whereas Mrs.Manju Gupta (PW-23 in the list of witnesses) was examined U/S 161 Cr.P.C. vide statement (Ex.PW-36/D-13), who stated that the donors and father of child i.e. A.K.Dixit signed the deeds in their presence and gift deeds Ex.P-4 (D-65) & Ex.P-5 (D-66) were attested by her as Oath Commissioner, however, this witness has been deliberately dropped by the CBI.
45. On scrutiny of the evidence on record, this court finds that prosecution has failed to established the alleged facts in-issue that stamp papers on which gift deeds are executed were not purchased on 05.07.1994 i.e. the date mentioned on the reverse side thereof and stamp-vendor's register had been lost on 03.07.1994 or the alleged fact that money was of accused who diverted his ill-gotten money. Deposition of PW-6 is not coherent. In the examination in chief, PW-6 Inder Kumar Kapoor, the stamp vendor after seeing the gift-deeds dated 5 th June, 1994- Ex.P-1, 3rd September, 1994- Ex.P-2 and 19th October, 1994-Ex.P-3, (D-62 to D-64) deposed that writing on the reverse does not appears to be his nor his signatures were there. Then, he stated that stamp appeared to be similar to his stamp and thereafter, he further deposed that he could not say that the stamp affixed on the rear side of Ex.P1,P2 and P3 were his or not. This witness was cross-examined by learned Prosecutor.
46. It is significant to note that in his cross-examination, after seeing the rear sides of the stamp papers i.e. Ex.P-1 to P3 on which gift deeds were executed, PW-6 deposed that the details mentioned on the stamp were in the hand writing of Dinesh, who was the typist and use to sit along with him as helper and he use to sell stamp paper in his absence from his seat under his authority. He deposed that stamp at the back of Ex.P-3 correctly bears his name, license no. as well as his place of sitting as Vikas Bhawan, New Delhi. PW-6 deposed that he used to maintain one stamp only and purchaser of stamp papers had no means to know whether correct stamp has been affixed or not. PW-6 deposed that purchaser of Ex.P-2 & P-3 who would have come to his seat, had disclosed the name of person for whom the stamp papers are required with the purpose for which the same were CC No. 11/12 Page 28 out of 73 pages CBI vs A.D.Dixit & Anr.
required and had paid money to him or his helper Dinesh for purchase of stamp paper and he or his helper would have sold the same to him. PW-6 deposed that reverse side of P2 correctly bears his name, his license No.264 and his place of sitting as Vikas Bhawan.
47. PW-6 deposed that Stamp vendors while selling the stamp paper affixed their stamp on the reverse side of the stamp paper in which details are normally filled before it has been given to the purchaser and the details and stamp mentioned in the reverse is the record of the stamp vendor qua the government treasury to show that the stamp paper has been sold to the purchaser. In his deposition, PW-6 stated that loss of his statutory registers on 03.07.1994 cannot be in the knowledge of the stamp paper purchaser. PW-6 further stated that loss of the registers as detailed in Ex.PW-6/A & Ex.PW-6/B was pertaining to one of the four registers kept by him and two of the registers of Sh. Gautam Prakash another stamp vendor and that details mentioned on the stamp affixed on the reverse of Ex.P-1 to P-3 were in the handwriting of Dinesh and correctly reflect his name, licence No.264 and his place of sitting. PW-6 admitted that each of these documents Ex.P-1 to P-3 bear signature of Dinesh on point X-1, X-2 and X-3 along with his stamp appearing on the reverse of his document.
48. In his deposition PW-6 further explained that after his accident in the month of July 1994, sale of stamp papers continued form his seat for 3-4 days and thereafter it was discontinued and during these days Dinesh was selling the stamp papers and was maintaining due records and where Dinesh was keeping record of stamp paper sold would be known to him. PW-6 further testified that Dinesh had made payment for the sold stamp papers to him and also handed over the remaining unsold stamp papers and he had made correct statement about Dinesh, who acted as his assistant in his absence for the sale of stamp papers. PW-6 stated that he had correctly identified the handwriting of Dinesh on the questioned stamp papers.
49. After hearing the submission advanced and perusal of record this court finds merit in the contention raised by Ld counsel appearing for the accused. From the evidence of I.K. Kapoor (PW-6) it cannot be held beyond reasonable doubts CC No. 11/12 Page 29 out of 73 pages CBI vs A.D.Dixit & Anr.
that stamp papers were not sold by him. His testimony shows that stamp papers were sold by his assistant Dinesh. PW-6 categorically identified handwriting of his assistant Dinesh on Stamp papers Ex.P1 to Ex.P3. Indisputably, handwriting of PW-6 was not sent to any expert or to FSL for comparison of writing on the reverse side of the gift deed. His stamp register was allegedly lost on 3.7.94. There is no satisfactory reason as to why the report was not lodged on 3.7.94 but was only lodged on 5.7.94. Admittedly, relevant witnesses i.e. Gautam Parkash and Manju Gupta who were examined by the IO during the investigation have not been examined by the prosecution and S.N. Saxena, stamp vendor has also not been examined.
50. Sanjeev Sabbarwal, Oath Commissioner who was examined by the prosecution as PW-18 in his deposition clearly stated that gift deeds Ex.P1 to P3 were attested by him as an Oath Commissioner. The cogent evidence of PW-18 as well as statement of Manju Gupta other oath commissioner who was not examined by the prosecution cannot be discarded. Statement of Donee/family members who have executed the gift deed u/s 161 Cr.P.C. was recorded but these witnesses have been withheld by the prosecution. Failure to examine essential witnesses would make the court draw an adverse inference against the prosecution and the legal position is well settled that the view favourable to the accused is to be adopted by the court. On scrutiny of evidence on record as a whole and the submissions advanced at bar, this court is not persuaded by submission advanced by Ld Spl. PP and is in agreement with the submission advanced by Ld Counsel appearing for accused, therefore this court finds no satisfactory reason to discard the gifts totaling Rs.1,23,000/- given by maternal uncles and grandfather stated to be given to Shiny, daughter of A-1 and A02 in 'Chola ceremony', therefore this amount was required to be taken into account. Discussion of evidence as regards assessment of assets
51. This court shall now proceed further to appreciate evidence as regards assessment of assets: Item No. 1 under the head of assets is Basement of Property No. 26/8, Old Rajinder Nagar, New Delhi which is valued in charge-sheet as Rs.3,35,350/- and item no.2 is the first floor of the said property in the name CC No. 11/12 Page 30 out of 73 pages CBI vs A.D.Dixit & Anr.
Seema Dixit (A-2) valued Rs.2,42,994/- as per valuation report. Evidence on record shows that PW-3, N.K.Jain, Junior engineer (civil), an official of CBI, ACB, New Delhi valued the immovable property,i.e., basement of the property No. 26/8, Old Rajinder Nagar, New Delhi existing in the name of Seema Dixit (A-2) vide his report dated 16/2/99 (Ex. PW-3/B and Ex. PW-3/C). N.K. Jain (PW-3) estimated the cost of basement structure as Rs. 3,62,555/- and extra item as Rs. 61,616/-. He allowed rebate of 7.5% as the building was constructed by the owner under his own supervision, material purchased and labour engaged directly by himself and thus, valuation opined by Shri N K Jain is Rs. 3,35,350/-. As regard second item, PW-3, N.K.Jain, Junior engineer (civil), CBI, ACB, New Delhi valued first floor of the property No. 26/8, Old Rajinder Nagar, New Delhi and estimated the cost of first floor structure as Rs. 5,25,391/- and extra item of first floor as Rs.1,51,181/-. After rebate of 7.5% and since as per documents on record Smt. Seema Dixit (A-
2) was the owner of only half portion of first floor, cost of construction of said portion attributed to (A-2) is Rs. 2,42,994/-.
52. Evidence on record shows that both portions of property i.e., basement and half first floor of the property No. 26/8, Old Rajinder Nagar, New Delhi were purchased by Seema Dixit (A-2) vide certified copies of Agreement to Sell, General Power of Attorney, Will dated 21.7.1995 and 18.01.1995 marked C-1, C-2 and C-3 respectively on record and seized by Insp. S K Bhati vide Seizure Memo, (Ex. PW-13/A to D) show that basement of Property No. 26/8, Old Rajinder Nagar, New Delhi was purchased by (A-2) from Gursharanjeet Singh Gandhi and Darshan Singh Dua for a consideration of Rs. 1,50,000/- and Rs.1,85,000/- respectively. In his statement u/s 313 Cr.P.C, accused stated that the report of N.K. Jain was incorrect, vague and over valued based upon hypothetical opinion and wrong measurement. Accused stated that there was no pond and river around the said building, hence there was no bitumen/waterproofing applied in the basement. Accused further stated that PW-36 Inspector Azad Singh concealed another independent report dated 24/12/1998 prepared by Sh. Arun Virmani, a registered architect, (Ex.PW-36/D-15) placed on record during cross examination of IO/PW-36 which was seized by IO/Shri S S Ali during investigation. Statement CC No. 11/12 Page 31 out of 73 pages CBI vs A.D.Dixit & Anr.
of Sh. Arun Virmani u/s 161 Cr P C (Ex. PW-36/D-5) was also recorded in this regard by IO S S Ali.
53. Accused have admitted it as correct that Seema Dixit (A-2) purchased basement and first floor of property no. 26/8, Old Rajinder Nagar, New Delhi and documents of purchase i.e. sale deed etc although were seized by the investigating agencies and vendors namely Shri Gursharanjeet Singh Gandhi and Shri Darshan Singh Dua had been examined and their statement u/s 161 Cr.P.C was recorded but these witnesses were not examined by the prosecution. Sh.Surender Sinha, Ld Special Public Prosecutor submitted that it has emerged from the evidence of S.K.Taneja (PW-30) and in observation memo (Ex. PW13/F (D-4) that value of the flat 26/8, Old Rajinder Nagar, Delhi First Floor and Basement, found in occupation of the accused persons on the day of the search, and registered in the name of Seema Dixit (A-2) was Rs. 25,00,000/-and that these floors were acquired by A.K. Dixit(A-1) in the name of his wife Seema Dixit (A-2), who was a Household lady on 09.10.1994, on the day of opening her account No. 8389 in United Western Bank, Karol bag, New Delhi and during check period. PW-28 Sh.Mohan Rakesh Sharma deposed while opening of account No. 8389 at United Western Bank, Karl Bagh, Delhi Seema Dixit declared her occupation as Household. It is submitted that during search proceedings carried out at 26/8, Old Rajinder Nagar, Delhi on 23.08.1996, Sh. A.K.Dixit (A-1) disclosed before the police party and witnesses that the first floor and the basement were purchased in Rs. 25,00,000/- from G.S. Gandhi and D.S. Dua, as recorded in the observation memo Ex.PW-13/F and further, Sh.H.L.Khurana (PW-13), had stated in the regard in his deposition. Sh.D.S.Dua disclosed before the CBI team and independent witnesses that first floor was purchased by Sh. A.K.Dixit for a sum of Rs. 16,00,000/- and the basement for the sum of Rs. 9,00,000/- at different times. (Disclosure is marked Ex. PW-30/A (D-14).
54. It is submitted by Ld Prosecutor that disclosures has evidentiary value under section 27 of Evidence Act, because new fact for the transaction of sale/purchase of first floor and basement of property No. 26/8, Old Rajinder Nagar, Delhi was unearthed. Ld prosecutor wanted to persuade the court that value of the CC No. 11/12 Page 32 out of 73 pages CBI vs A.D.Dixit & Anr.
above properties i.e. basement and first floor of 26/8, Old Rajinder Nagar, Delhi, for Rs. 25,00,000/-, may be taken into consideration by this Court, because, the documents, Ex. PW-30/B to Ex. PW-30/B-3, recovered from the office of M/S Chaudhary Estate Agents, Shop No. 104, Old Rajinder Nagar Market, New Delhi, through which the deal for the sale/purchase transaction was materialized, are relied upon documents and exhibited before this Court.
55. Learned Spl. PP contended that there is general tendency in India that the properties are under valued at the time of registration and following the same principle, First Floor and Basement of property No. 26/8 Old Rajinder Nagar, New Delhi has been undervalued at the time of registration and registration charges have also been saved. It is submitted that valuation report dated 24th December 1998 by Sh. Arun Virmani, registered architect was got prepared by Sh. A.K.Dixit, (A-1) on his own request, which had no concern with the investigation of this case and the said report was not prepared before any independent witness or before I.O. of the case and is a private document, prepared between Sh. A.K.Dixit (A-1) and Sh. Arun Virmani. It is argued that although, architects are registered with the government, yet they charge fee from their clients and a person, doing any work against the fee charged by him, is not supposed to go against his client's interest and moreover, report by Sh. Virmani was prepared after search in this case and so, it has no evidentiary value and said report has not been proved before this Court, whereas property was valued by N.K.Jain, J.E (civil), who was on deputation in CBI for valuation purposes and cost of property has been taken in the charge sheet as per his valuation report who has testified in support of his report exhibited as Ex. PW-3/A & Ex. PW-3/B.
56. Per contra, Sh.Nasir, Ld counsel appearing for accused submitted that in the charge sheet, valuation of immovable property owned and possessed by Seema Dixit is alleged as Rs.7,23,344/- which is absolutely wrong. It is submitted that immovable property which 88 sq. yard in area consisted of basement of property No.26/8, ½ portion of first floor in the same building, It has come on record that plot no.26/8 Old Rajinder Nagar measuring 88.1 yards was purchased by D.S. Dua and G.S. Gandhi on 11.9.94 who constructed basement and first to CC No. 11/12 Page 33 out of 73 pages CBI vs A.D.Dixit & Anr.
third floor on the said plot during year 94-95 and sold first floor to K.N. Dixit, father of A.K.Dixit (A-1) and Seema Dixit (A-2) for Rs.3,60,000/-, was purchased by Seema Dixit (A-2) from D.S. Dua and his partner G.S. Gandhi, for Rs.1,50,000/- as per registered documents executed on 21.7.95.
57. It is argued that instead of relying upon registered documents, property dealers and the people owning similar property in Old Rajinder Nagar, were examined under Sec.161 Cr.p.c. by the investigating officers and when their statements supported the accused, investigating agency swept their statements under the carpet and asked, N.K. Jain, who was only a Junior Engineer on deputation with CBI to evaluate these properties. It is submitted that PW-3 assessed construction cost of basement by taking covered area as 792 sq. feet with normal water proofing with bituminous felt. He assessed height of basement as 11 feet and total cost was worked out as Rs.3,62,555/-. It is submitted that as the basement was got constructed by D.S. Dua, who was an engineer under his own supervision, 7.5% discount was given. In the report of Sh. N.K. Jain, Junior Engineer (PW-3), height and covered area measurement of was wrong; and there was no question of using Bituminous felt for water proofing, as it is only used when building is constructed near a river, lake stream or pond.
58. It is urged that accused got the property measured and assessed by Arun Virmani, government valuer who was examined u/s 161 Cr.P.C. by the IO and had given his report to the IO. He found covered area as 759 sq. feet and actual height of basement as 8 feet and 10 inches. He found that it was constructed without bituminous felt and as per CPWD rates, construction cost was Rs. 1,88,232/- as on December, 1994. Construction cost as per CPWD Manual, was reduced due to reduction of height and partition of the basement was got built by the tenant as per his own requirement so those could not be included in the cost of construction and similarly tiles, wood works and other miscellaneous work was got done by Seema Dixit (A-2) after check period between 25.8.88 to 23.8.96 which could not be included in the cost. N.K.Jain (PW-3) assessed house 'as on 29.9.98' and submitted his report on 16.2.99, and added Rs. 1,54,317/- as extra items. Said report is wrong on the face of it, as the basement and half portion of first floor were CC No. 11/12 Page 34 out of 73 pages CBI vs A.D.Dixit & Anr.
purchased by Smt. Seema Dixit on 21.7.95 and 18.1.95 respectively. Arun Virmani, government approved valuer who assessed the property on 23/24 December, 1998 assessed cost of the basement as Rs.1,88,232/- 'as on December 1994' taking correct parameters i.e. the height as 8 feet 10 inches, covered area 759 sq. feet, which was constructed without bituminous felt as there was no river, stream or pond nearby and CPWD rates without bituminous felt were Rs.2210/- per meter. Statement and report of Arun Virmani on record are Ex.PW36/D-5 & Ex.PW-36/D-15 respectively. It is submitted that price of basement as shown in registered documents which was actually relied i.e. Rs.1,50,000/- was therefore just and correct.
59. As regards first floor(half share) of property no. 26/8 Old Rajinder Nagar, it is submitted that after getting it assessed by N.K. Jain CBI Engineer, Inspector, Azad Singh valued it at Rs.2,42,994/-which is wrong and Seema Dixit paid Rs.1,85,000/- as her share, through cheques and drafts and K.N. Dixit paid his half share of the price and D.S. Dua and G.S. Gandhi executed agreement on 18.1.95 regarding sale of half share (front side) flat of first floor to Smt. Seema Dixit. As per house was assessed by N.K. Jain (PW-3) as 4,85,488/-, after giving 7 ½ % discount i.e. Rs.39,403/-, value of half of first floor according to (PW-3) was Rs.2,42,994/- which is shown by Inspector, Azad Singh as price of half portion of first floor immovable asset whereas, registered documents were executed for Rs.1,85,000/- in favour of Seema Dixit (A-2) cost of extra items in first floor i.e. wood work etc. cannot be included in the construction cost, as the same are proved to have been added within check period. It is submitted that assessment of N.K. Jain is wrong because he assessed first floor with height of 11 feet and covered area as 1236.75 sq. feet and as per valuation taken by Arun Virmani, height of first floor was 9.3 feet and covered area 1134 sq.feet. Thus, construction cost comes to 3,62,674/- and half share of Smt. Seema Dixit as Rs.1,81,337/-. To ascertain the truth during investigation IO had thoroughly examined D.S. Dua and G.S. Gandhi, vendors, who stated that they had not received any other amount besides what was shown in registered agreements/documents. Investigating agency examined. Property dealers namely Pardeep Chugh and Rajiv Kalra who CC No. 11/12 Page 35 out of 73 pages CBI vs A.D.Dixit & Anr.
arranged deal between the parties regarding sale of property who in their statement u/s 161 Cr.P.C. stated that no extra amount was paid by the buyer to the seller in addition to the sale agreement amount and properties in Old Rajinder Nagar measuring 88.1 sq. yards were still being sold, in October 1998 and agreements were being reached at Rs. 4 to 4 ½ lacs. Other persons examined in this connection were Raman Chawla, a property dealer of the area who stated that registration of flats in Old Rajinder Nagar was 4 to 4 ½ lacs and Smt. Madhu Preet Chehal, who also stated that she and Smt. Meera Dabar purchased second floor of 26/8, Old Rajinder Nagar for Rs.3.80 lacs from D.S. Dua and G.S. Gandhi. However, CBI opted to drop the said material witnesses from the list of witnesses and did not examine them deliberately to suppress the truth from the court. Learned counsel argued that all this evidence would show that price paid by Seema Dixit for basement and half portion of 1 st floor of 26/8, Old Rajinder Nagar as shown in the registered deeds corroborated by property dealers, people of the vicinity and assessed by government valuer Sh. Arun Virmani is correct, and valuation report of N.K. Jain, CBI Junior Engineer is a trash.
60. It is relevant to note here the reply given by the IO/PW-36 as regards the valuation/purchase of the basement and first floor of the property in question. PW- 36 deposed as under:-
"During investigation, I had examined Sh. Gandhi from whom Seema Dixit and Sh. K.N. Dixit had purchased the first floor and the basement of property No. 26/8, Old Rajinder Nagar, Delhi. Attention of the witness is drawn towards statement u/s 161 Cr.P.C. of Sh. G.S. Gandhi, dated 3.09.1996 recorded by Inspector Sh.S.K. Bhati, first I.O. It is correct that first floor of premises No. 26/8, Old Rajinder Nagar, was purchased from Sh.D.S. Dua and G.S. Gandhi, for a total consideration of Rs.3,60,000/- by Sh.K.N. Dixit and Smt. Seema Dixit. It is correct that basement of premises No. 26/8, Old Rajinder Nagar, was purchased from Sh.D.S. Dua and G.S. Gandhi, for a total consideration of Rs.1,50,000/- by Smt.Seema Dixit. Vol. As mentioned in the statements (Ex.PW-36/D1 & Ex.PW-36/D2) of CC No. 11/12 Page 36 out of 73 pages CBI vs A.D.Dixit & Anr.
SH.D.S. Dua and Sh.G.S. Gandhi u/s 161 Cr.P.C. recorded by first I.O Sh. S.K. Bhati, which are on record. I neither inquired nor recorded the statement of co-occupants/neighbours or property dealers of the area, regarding cost of the property in question. I am not aware about the fact that Sh.D.S. Dua, himself is an engineer and builder.
I did not examine Smt. Madhu Preet Chahal and Mrs. Meena Dagar, owner of the second floor of property No. 26/8 Old Rajinder Nagar, Delhi, who had purchased the said property from Sh.D.S. Dua and Sh. G.S. Gandi, in the sum of Rs.3.80 lakhs, during my investigation. However, earlier I.O may have examined the said witnesses. At this stage, attention of the witness is drawn towards the statements dated 09.01.1999 (Ex.PW36/D3 & Ex.PW-36/D4) u/s 161 Cr.P.C. of Smt. Madhu Preet Chahal and Mrs. Meena Dagar."
61. The statement of Sh. Darshan Singh Dua recorded on 9th January 1999 by IO Dy SP S.S. Ali is as under:-
"We have sold basement to Mrs. Seema Dixit on 21.7.95 for Rs.1,50,000/-. The amount received by us is as under:
1. I have received 75,000/- on 3.7.95 through cheque no. 845089 of United Western Bank, Karol Bagh, New Delhi.
2. Sh. G.S. Gandhi also received a sum of Rs.75,000/- on 3.7.95 through cheque no. 845087, dated 3.7.95 of United Western Bank, New Delhi. None of our parter has received any extra amount either than this amount to Rs.1.5 lakhs.
We have sold first floor of 26/8 Old Rajinder Nagar to Mrs. Seema Dixit and Sh. K.N.Dixit (her father in law) for a sum of Rs.3,60,000/-. The front half portion of the first floor was purchased by Mrs. Seema Dixit for a sum of Rs.1.85 lakhs. Mrs. Seema Dixit has paid Rs.55,000/- vide cheque no. 845081, dated 16.1.95 and Rs.35,000/- vide draft no. 212298, dt. 16.1.95. Smt. Seema Dixit also paid a sum of Rs.90,000/- to Sh. G.S. Gandhi."
CC No. 11/12 Page 37 out of 73 pages
CBI vs A.D.Dixit & Anr.
62. Charge-sheet is the outer boundary of the case of prosecution and prosecution cannot built up altogether a new case during or after conclusion of trial and thereby cause prejudice to the accused who is supposed to defend case against him as per allegations in charge sheet. Therefore, submission advanced by Ld Special PP for valuing both property as Rs.25 lacs is liable to be outrightly rejected. During investigation statement u/s 161 Cr.P.C. of the vendors Shri Gursharanjeet Singh Gandhi and Shri Darshan Singh Dua recorded by the IO, which has been placed on record in his statement by the accused as Ex.PW-36/D1 and Ex.PW-36/D2 clearly shows that the value of the property mentioned in the documents was correct. Alleged memo Ex.PW-30/A prepared at the instance of D.S. Dua wherein the value of the property is stated to have been disclosed as Rs.16 lacs and Rs.9 lacs respectively has not been proved by D.S. Dua, whereas in their statement u/s 161 Cr.P.C., D.S. Dua and G.S. Ganghi have categorically stated that they had sold the basement in the sum of Rs.1.5 lacs and half of the first floor portion in Rs.1.8 lacs.
63. Moreover, property dealers namely Rajiv Kalra or Pradeep Chug of M/s Chaudhary Estate have been withheld. Even otherwise the documents i.e. photocopies of the pages of telephone diaries, of the passbook of D.S. Dua have not been proved and nothing incriminating is found therein from which any inference can be drawn about the value of the property. Madhu Preet Chahal and Meena Dawar who were examined during investigation by the IO u/s 161 Cr.P.C. vide their statements Ex.PW-36/D3 and Ex.PW-36/D4 clearly stated that no extra amount was paid by buyers. But these witnesses were not arrayed in the list of witnesses and the material witnesses namely Darshan Singh Dua, Gurcharan Singh Gandhi, Pradeep Chug and Rajiv Kalra were dropped on 4th September 2012 by Ld Prosecutor and were not examined by the prosecution during trial and therefore an adverse inference has to be drawn against the prosecution that those witnesses would not have supported the case of prosecution. To find out the value of the properties in question, firstly value/amount mentioned in the documents executed between the parties has to be relied upon and only when it is shown that CC No. 11/12 Page 38 out of 73 pages CBI vs A.D.Dixit & Anr.
documents executed between the parties are not prima facie reliable or are proved to be sham or manipulated documents, only then, one can make use of or take into consideration valuation reports of experts which is only 'an estimate' as against the 'actual value' noted in documents.
64. In the present case, admittedly, certified copies of registered documents i.e. Agreement to Sell, General Power of Attorney, Will dated 21.7.1995 and 18.01.1995 marked as C-1, C-2 and C-3 respectively seized by IO/ Insp. S K Bhati which are mentioned at Sl. No. 20 of the list of documents attached with the Seizure Memo, (Ex. PW-13/A to D) have been placed on record by the prosecution indicating that basement and half first floor of Property No. 26/8, Old Rajinder Nagar, New Delhi was purchased from Shri Gursharanjeet Singh Gandhi and Shri Darshan Singh Dua for a consideration of Rs. 1,50,000/- and Rs.1,85,000/- respectively. To conclude, this court finds that correct and proper value of the basement and half portion of first floor of the property no. 26/8, Old Rajender Nagar, Delhi belonging to (A-2), which has to be accepted as mentioned in the documents executed between the parties i.e. Rs. 1,50,000/- and Rs.1,85,000/- respectively.
65. Next Item No.3 of the head of immovable assets is, Plot at Industrial Area, Murthal (Sonepat), Haryana valuing Rs.1,25,000/-. It was sold by PW-9, Sh. Hari Pal Sharma to Smt. Seema Dixit (A-2) who had received money vide cheque No. 845090 dated 8.12.1995 (Ex. P-10)(D-46). Item no.4 is payment of Rs.20,000/- made vide cheque no.84500 dated 8.12.95 from the account of Seema Dixit (A-2) to SB A/c No. 8389. Record shows that a pay order No.019615 dated 29.12.1995 in favour of HSIDC from her account No. 8389 United Western Bank Ltd. on 29.12.1995 for Rs.20,060/-. There is no dispute about these two items of assets and accused persons have admitted these assets in their statement u/s 313 Cr.P.C.
66. Now this court shall take up movable assets. Item no.1 as per charge sheet, is that household articles were found during search of the house valuing Rs.1,49,475/-. As per case of prosecution, articles listed in the observation memo (Ex.PW-13/F) were found during search of the residential premises no. 26/8, Old CC No. 11/12 Page 39 out of 73 pages CBI vs A.D.Dixit & Anr.
Rajender Nagar, New Delhi, in possession of accused persons was carried on by IO Insp. S.K. Bhati on 23th August 1996. Time of acquisition, price as well as mode of acquisition of household articles was allegedly informed by A.K. Dixit (A-
1). Articles were valued on the basis of information "given by him and mutual discussion among the members of search party".
67. As per observation memo, total value of the household article is Rs. 1,66,975/- whereas the value of household article mentioned in the charge sheet is Rs. 1,49,475/-. Defence version is that values of the house-hold articles mentioned in the memo as well as in the charge sheet is incorrect. Accused persons in their statement u/s 313 Cr.P.C. stated that they had not disclosed any value or year of acquisition of the household articles to CBI Officials or Insp. S K Bhati and that observation memo was prepared later on in the CBI office. Accused persons claimed that date of acquisition of most of the items is incorrect and value of most of the items is excessive and few items mentioned in observation memo, have been repeated and counted again in the list of expenditure. For instance, items which are mentioned at Sl. No. 13, 49, 45, 46 (marked as X-1 to X-4) in the Seizure Memo (Ex.PW-13/F) have been repeated in the item No. 9 of the list of expenditure described in the charge-sheet. Accused persons stated that the value of the items mentioned in Sl. No. 9 of the expenditure whose total value is assessed as Rs. 62,250/-, i.e, VCR, Videocon Colour TV, Music System Sony and Portable Colour TV etc. having value of Rs. 16,200/-, Rs. 13000/-, Rs. 20,000/- and Rs 9,800/- as per the charge-sheet, whereas Videocon Colour TV and VCR noted at item No. 49 and 45 (marked X-1 and X-2) were stated to be received as 'gift in marriage' and Sony audio system was stated therein to have been purchased having costs of Rs. 18,000/-. Portable colour Television was stated to have been purchased in the year 1995 for Rs. 10,500/- in the observation memo whereas it has again been valued as 'Rs.9800' as per receipt no.43986 dated 4th June 1995 as per item no.9 of the list of expenditure. Therefore, said amount of Rs9800/- is required to be subtracted from item no.9 and Rs.700 are required to be subtracted on this count of item, apart from subtraction of the value of Colour TV and VCR from the expenditure CC No. 11/12 Page 40 out of 73 pages CBI vs A.D.Dixit & Anr.
mentioned in item no.9 of the expenditure.
68. Accused persons stated that BPL Refrigerator alleged to have been purchased on 18.7.1996 for Rs. 23,100/- and noted in item No. 10 of the Expenditure in the charge-sheet and BPL refrigerator is alleged to be of 3002 ltr. and the said expenditure has not been established and proved. It is submitted this item is again mentioned at S.No.60 of the list of the articles of the observation/seizure memo alleged to be acquired in the year 1994 and its value is assessed as Rs. 10,000/-. It is submitted that two refrigerators are not observed in the house at the time of search. Accused filed a written statement mentioning value, and mode of acquisition in a tabulated form stating correct age, mode of acquisition and value of the articles as per serial numbers as mentioned in Observation Memo. It may be noted that serial numbers in the observation memo (Ex.PW-13/F) is not correct and after serial no.49 again serial no.45 starts therein. Few items noted in the observation memo pointed out on behalf of the accused which have been valued incorrectly or whose year of acquisition/mode is stated to have been mentioned incorrectly by the investigating agency, stated in the chart indent of statement u/s 313 Cr.P.C of accused few items may be described herein.
Item no as Particulars Year of Mode of Amount in Amount/
per serial
no. given in acquisition as acquisition as per (Rs.) as per mode/year of
observation per memo memo memo acquisition as per
memo accused
7. 6 curtains 1995 Purchased 2500 1200/-
8. Glass centre table 1991 -do- 4000 Gift in marriage
(1991)
11. Double bed with 1995 -do- 2500 Gifted in
mattress & 2 pillow marriage (1991)
13. BPL small size 1995 -do- 10,500 9,800/-
colour TV along with (This item has
also been
colour trolly included again
in entry no.9 of
expenditure in
the charge
sheet)
15. Air conditioner make 1995 -do- 22,000 Gift in marriage
white westing house (1991)
along with voltage
corrector
28. Electronic voltage 1995 -do- 20,000 8,000/-(1994
corrector along with second hand)
AC make
Commander
CC No. 11/12 Page 41 out of 73 pages
CBI vs A.D.Dixit & Anr.
48 AC make white 1995 -do- 22,000 10,000/-
wasting hose along (1994)
with voltage
controller
49. Videocon Colour 1991 Gifted in marriage (This item has Gifted in
also been
television with TV included again marriage
trolley with racks in entry no.9 of
expenditure in
charge sheet)
45. TV trolley racks 1991 Gifted in marriage (This item has Gifted in
also been
contains VCR make included again marriage
videocon in entry no.9 of
expenditure in
charge sheet)
46. TV trolley also 1994 Purchased 18,000/- 18,000/-
contains Sony audio (This item has also (This item is (Value of this item is
been included again valued as required to be
system in entry no.9 of Rs.20,000 in subtracted from total)
expenditure in the item no.9 as
charge sheet) per bills)
51. 4 window curtains & 1995 t of house Purchased 2500/- 1500/-
3 door curtains hold expenditure
included in item
no.22 of
expenditure)
54. 2 telephone 1993 Purchased 3500/- 2500/-
instrument, one
given by MTNL and
other purchase Nos.
are 5764601 and
5764659
respectively
60. BPL frost free 1994 Purchased 10,000/- 10,000/-
refrigerator 165 ltr.
62. Gas stove make 1991 Gifted in --- Gifted in
cooking grill marriage marriage
63. 3 steel tanks and 1 1991 Gifted during --- Gifted in
steel filter marriage marriage
69. Singer mixer set 1994 Purchased 3500/- 1000/-
(should have been Part
of house hold
expenditure included in
item no.22 of
expenditure)
70. Some steel utensils 1991 Purchased 3000/- 1500/-
& some plastic onwards (should have been part
of house hold
bottles expenditure included in
item no.22 of
expenditure)
71. Grocery items 1996 Purchased 1000/- 1000/-
onwards (should have been part
of house hold
expenditure included in
item no.22 of
expenditure)
72. Aqua guard 1991 Purchased 4500/- 2500/-
(should have been part
of house hold
expenditure included in
item no.22 of
expenditure)
69. PW-13 Harbans Lal Khurana who was witness to observation/seizure CC No. 11/12 Page 42 out of 73 pages CBI vs A.D.Dixit & Anr.
memo Ex.PW-13/F has not uttered about 'any disclosure' made by the accused A.K.Dixit or about any mutual discussion or consultation between the members of search party as argued and stated in Ex.PW-13/F. PW-13 has rather testified specifically that apart from search and seizure, no inquiries were made from the accused in his presence. Other witness examined by the prosecution as regards preparation of observation memo is Insp. Rajesh Kumar (PW-35), who merely identified his signatures and signatures of IO Insp. S.K. Bhati. on observation memo Ex.PW-13/F. In his deposition, PW-35 stated that SI Shobha Dutta had prepared observation memo and inquiry was being made from A.K.Dixit about the year of acquisition and value. On behalf of accused suggestion was given to PW- 35 that the rate as well as the age of articles mentioned in the observation memo was excessive and was not the actual value and the same was not prepared by asking or consulting A.K. Dixit (A-1). PW-15 admitted that IO had not recorded statement of A.K.Dixit or his wife or other family members. He admitted that his statement u/s 161 Cr.P.C. was also not recorded.
70. IO Insp. S.K. Bhati has not appeared in the witness box, statement of Insp. Rajesh Kumar was not recorded by the IO, SI Shobha Dutta who had prepared observation memo or made inquiry about value and age of articles has not been examined by the prosecution and PW-13 H.L. Khurana has categorically stated on oath that no inquiries were made from the accused in his presence coupled with the fact that no disclosure statement of the accused was recorded, it cannot be held beyond reasonable doubt that accused had made any voluntary disclosure before the IO. Even otherwise, any disclosure statement which does not leads to the discovery of fact is inadmissible in evidence. In the present case, not only no fact can be said to have been discovered pursuant to the disclosure of the accused but making of disclosure by accused itself has not been established. Moreover, prosecution has not led any evidence to prove the valuation of the items mentioned in the observation memo which have been disputed by the accused. IO Insp. Azad Singh (PW-36) in cross examination admitted that many items namely Video-con VCR, Video-con Colour TV, Portable Colour TV small size, Music System & BPL Frost Free Refrigerator were mentioned in as item No.13, CC No. 11/12 Page 43 out of 73 pages CBI vs A.D.Dixit & Anr.
45, 46, 49 & 60 in the observation memo dated 23.08.1996 (Ex.PW-13/F) regarding household articles, prepared during search of the house of accused and were also mentioned and valued separately again in the charge sheet. He added that the observation memo, it was mentioned that Video-con Colour TV with rack and Video-con VCR were disclosed by the accused to have been received as gift in marriage.
71. Admittedly, there was no Government Valuer alongwith member of the search party. In the facts and circumstances noted above, details as regards valuation of the articles and year of acquisition furnished by the accused cannot be ignored and discarded. Testimony of the IO/PW-36 indicates the casual manner in which the observation memo was prepared by IO Insp. S.K. Bhati which is further supported by the fact that the valuation of the house-hold articles claimed in the charge-sheet i.e. 1,49,475/- does not tallies with the actual total of the alleged amount of the articles mentioned in the observation memo. Total of the items mentioned in observation memo (Ex.PW-13/F) amounts to 166975/-, whereas as per charge-sheet the said amount was wrongly mentioned as 149475/-. There is no explanation for said reduction of amount. Several items which were allegedly disclosed by the accused received as "gift in marriage" were added and valued as assets. Furthermore, even the glossary items and the utensils which are supposed to have been included in the house-hold expenditure i.e. 30% of the carry home salary mentioned in item no.22 of the expenditure are added separately as house- hold articles in the observation memo for instance at s. no. 70 & 71 thereof. Having regard to the totality of the facts and circumstances noted above, particularly in view of the discrepancies noted above in the observation memo as regards the value and the mode of acquisition and the settled legal position that when two views are possible on record, view which favours the accused has to be adopted. On calculation of the difference in amount and as detailed in the chart noted above which has not been specifically rebutted by the prosecution during trial is, therefore, found acceptable and probable by this court. Thus, a sum of Rs.62,500/- is required to be subtracted from the actual total amount of the articles mentioned in the observation memo. Thus, 166975-62500=1,04,475/-.Thus, total CC No. 11/12 Page 44 out of 73 pages CBI vs A.D.Dixit & Anr.
value of the house-hold articles is taken as Rs.1,04,475/-.
72. Valuation of Item no. 2 to 5 under the head of movable assets are not disputed by the accused persons. Item no.2 is Rs.5,000/- in a six year National Saving Certificate (NSC) No. 04DD780630 (Document No. D-108). Item no.3 of movable assets is Rs.10,000/- in UTI under Raj Lakshmi Unit Scheme vide certificate no. R934007019374 dated 16.12.1992 (Document No. D-110 (i)) in the name of Ms. Ashmita Dixit daughter of accused. Item No.4 is Rs. 10,600/- vide IDBI Deep Discount Bond two folios Nos. FDDB0460129 and FDDB0460130 dated 16.12.1992 of Rs. 5,300/- each in the name of Ms. Shiny Dixit daughter of accused. Item no.5 is Rs. 11,419/- Money Multiplier Deposit Scheme of Central Bank of India vide certificate MMDC No. 166472 dated 20.12.1995 (Document
109). All these items 2 to 5 in the head of movable assets are admitted by accused persons.
73. Item no.6 of movable assets is balance in the SB Account No. 8389 of Smt. Seema Dixit (A-2) at United Western Bank, Karol Bagh, New Delhi which is Rs. 1,08,910/- as on 23.8.1996. Passbook is D-118 and the Statement of Account is Ex. PW-28/13 (D-60). Accused in their statement 313 Cr.P.C. admitted that the balance was Rs. 1,08,910/- but stated that it included the loan amount of Rs. 92,850/-, repaid by Sh.Pramod Shukla. Two bankers cheques [No.408442 dated 06.08.1996 amount of Rs.44,350/-(Ex.PW-4/D document D-80(i)) and cheque No. 408443 dated 06.08.1996 for Rs.48,500/- (Ex.PW-4/F document D-81)] & paid by Sh. Pramod Shukla to Ms. Seema Dixit (A-2) have been counted by the IO in the movable assets as well as in expenditure in item No.16 & 17. In this regard on asking, response of PW-36 IO was as under:-
"It is wrong to suggest that an Amount of Rs.1,08,910/- which ought to have been shown as income of Ms. Seema Dixit (A-2) was wrongly shown twice in the charge sheet in item no. 6 of list of assets and item No.16 & 17 of list of expenditure. Vol. Bankers cheque No.408442 dated 06.08.1996 for Rs.44,350/-in the name of Ms. Seema Dixit (A-2) was got prepared on the application form of Sh. Sunil Jain, R/o AB-3,Mian Wali Nagar, New Delhi and bankers CC No. 11/12 Page 45 out of 73 pages CBI vs A.D.Dixit & Anr.
cheque No. 408443 dated 06.08.1996 for Rs.48,500/- in the name of Ms. Seema Dixit was got prepared on the application form of Sh. Rajan Kumar, R/o 36/1, Haider Pur, Delhi. None of the above banker cheque were got prepared by Sh. Pramod Shukla, brother of Smt. Seema Dixit (A-2), hence the amount mentioned in the above bankers cheques were taken as expenditure incurred by Smt. Seema Dixit (A-2) or her husband Sh. A.K. Dixit (A-1) as benami transaction. Sum of Rs.92,850 (i.e. Rs.44350 + Rs.48500/-) was deposited in SB Account No. 8389 of United Western Bank of Ms. Seema Dixit (A-
2) on 06.08.1996. The balance amount of Rs.1,08,910 in the SB account No.8389 as per the bank statement is as on 08.08.1996. It is correct that the sum of Rs.92,850 (i.e. Rs.44350 + Rs.48500/-) mentioned in item No. 16 & 17 of the list of expenditure of the charge sheet is included in the sum of Rs.1,08,910/- which was the balance in SB Account No. 8389 of United Western Bank mentioned at item No. 6 of list of assets.
I had not recorded statement of Sh. Pramod Shukla as regards repaying the loan to Ms. Seema Dixit (A-2). His statement u/s 161 Cr.P.C. in this regard was already recorded by the previous IO. I had not filed his statement along with the charge sheet and he has not been arrayed as a witness."
74. Thus, PW-36 IO admitted in his cross-examination that a sum of Rs.92,850/-mentioned in item No. 16 & 17 of the list of expenditure of the charge sheet is included in the sum of Rs.1,08,910/- which was the balance in SB Account No. 8389 of United Western Bank mentioned at item No. 6 of list of assets. Hence, said amount of Rs.92,850/- cannot be counted twice, once as movable assets and second time as expenditure. Thus, only Rs.16,060/- is required to be added against these in movable assets. The said amount of Rs.48,500+Rs.44,350 cannot be claimed to be a movable asset or an amount invested as the said amount is the amount/loan returned by Arun Shukla, brother of Seema Dixit (A-2) CC No. 11/12 Page 46 out of 73 pages CBI vs A.D.Dixit & Anr.
to her out of her income.
75. Item no.7 is the balance in the joint SB Account No. 1879 of your (A.K. Dixit) & Smt. Seema Dixit (A-2) at Citizen Co-op Bank Ltd., Desh Bandhu Gupta Road, Paharganj, Delhi was Rs. 901/- as on 21.11.1994 which is admitted by accused persons in their statement u/s 313 Cr.P.C. Item No.8 is balance in SB Account No.3834 at State Bank of India, Town Hall, Delhi of Rs. 26,157/- as on 25.04.1996. Statement of account is Ex.PW-27/D [D-105 (v)]. This item of assets is admitted by accused persons. Item no.9 is balance in SB Account No.12453 at Canara Bank, Karol Bagh, Delhi of Rs.1,183/- as on 01.08.1996. Statement of account is Mark PW-8/B and forwarding letter is Ex.PW-11/1. Item no.8 & 9 are admitted. Item no.10 is balance in SB Account No.15055 of Smt. Seema Dixit (A-
2) at Canara Bank, Karol Bagh, Delhi of Rs.835/- as on 23.08.1996. Statement of account is D-103 (ii) & forwarding letter is D-103 (i). This item stands admitted by accused persons in their statement u/s 313 Cr.P.C. Item no.11 is balance in SB Account No.13941 of Smt. Seema Dixit (A-2) at Central Bank of India, Chuna Mandi, Paharganj, Delhi of Rs.1,019/- as on 23.08.1996, issued by Central Bank of India, Chuna Mandi, Paharganj, Delhi which is not disputed by accused persons.
76. Now, as per charge-sheet, Item No. 12 to 16 are loans given by Seema Dixit W/o Sh. A.K. Dixit to her brothers 'as per her income/income tax return'. Item No.12 under the head of assets is loan given by Seema Dixit(A-2) to Sh. Parmod Shukla for Rs.1,05,000/- as per her income; item no.13 is loan given by Seema Dixit W/o A.K. Dixit to her brother Arun Shukla 'as per her income' for Rs.1,03,000/-; item no. 14 is loan given by Smt. Seema Dixit W/o Sh. A.K. Dixit to Him Shikha Dixit 'as per her income' for Rs.46,000/-; item no. 15 is loan given by Smt. Seema Dixit W/o Sh. A.K. Dixit to Smt. Pushpa Tripathi 'as per her income' for Rs.46,000/- and item no.16 is Petty loans in the sum of Rs.25,000/- given by Smt. Seema Dixit W/o Sh.A.K. Dixit 'as per her income tax return'. It is noteworthy that charge-sheet itself mentions as regards entry no. 12 to 15 that these are the loans given by Seema Dixit (A-2) 'as per her income'. No details are furnished by the investigating agency in the charge-sheet or any prosecution witness has been CC No. 11/12 Page 47 out of 73 pages CBI vs A.D.Dixit & Anr.
examined by the prosecution in this regard to indicate as to when the said income was derived by Seema Dixit (A-2) and when the said loans were advanced by her. No evidence has been adduced by the prosecution in this regard except Ex.P-24 which is income tax return for the assessment year 1996-97.
77. Ex.P-24 is a document filed by the prosecution and admitted by the accused during admission/denial on 15th January 2002. Ld Prosecutor submitted that annexure of the said ITR (Ex.P-24) mentions the details of the 'receivables as on 31st March 1996', wherein against the name of Parmod Shukla, sum of Rs.1,17,600/- is mentioned and against the name of Arun Shukla, sum of Rs.1,15,360/- is mentioned and the total amount has been summed up as 'Rs.2,32,960/-'. On perusal of said annexure to the ITR (Ex.P-24), it is not clear how the said amount/figure i.e. a loan of 'Rs.1,05,000/-' and Rs.1,03,000/- mentioned in the charge-sheet had emerged and found by investigative agency.
78. Perusal of record shows that the statement of Parmod Shukla S/op K.M. Shukla and brother of Seema Dixit (A-2) was recorded by the IO Insp. S.K. Bhati on 25th April 1997 and the statement of Arun Shukla, another brother was also recorded by IO Insp. S.S. Ali on 18th December 1998 and said statements were formally placed on record during cross examination of the IO PW-36 as Ex.PW- 36/D-12 and Ex.PW-36/D-8 respectively. Parmod Shukla in his statement had stated that he had taken a loan of Rs.1 lac from Seema Dixit (A-2) @ 1.5% interest per month. It was incumbent upon the IO to seek clarification from the relatives and witnesses who had been examined about the time/year when the said loan was obtained. He stated that on 30th March 1995 he had repaid the loan installment of Rs.12,600/- with interest for the year 1995-96 and on 12th August 1996 he had paid Rs.41,900/- vide pay order no. 408496 drawn on SBI Jwalapuri, New Delhi and Rs.49,850/- was repaid on 19th August 1996 vide pay order no. 408576, SBI Jwalapuri, New Delhi.
79. It is significant to note that accused themselves have stated about this fact of advancing of the loans and suggestion on behalf of accused had been given to the IO PW-36 that a loan of Rs.1,05,000/- was given to Pramod Shukla and Rs.1,03,000/- was given to Arun Shukla by their sister Seema Dixit and IO merely CC No. 11/12 Page 48 out of 73 pages CBI vs A.D.Dixit & Anr.
stated that it was a matter of record. IO PW-36 was given further suggestion by the accused that out of a loan of Rs.1,05,000/- given to Pramod Shukla and Rs.1,03,000/- given to Arun Shukla by their sister Seema Dixit (A-2) before her marriage with A.K. Dixit (A-1), Pramod Shukla and Arun Shukla returned part of the loan amount in the form of banker's cheque i.e. cheque no. 408442, 408443, 408576 and 408496 Ex.PW-4/F, Ex.PW-4/D, Ex.PW-31/C & Ex.PW-31/B (D-80, 81, 82 & 83). In response, PW-36 IO deposed that amount mentioned in the above banker's cheque was not found to be given by Sh. Pramod Shukla and Arun Shukla to their sister Seema Dixit (A-2) and the said banker's cheques were not got prepared by them in their own names and the transaction was found to be Benami. It has already been noted that IO/PW-36 admitted that it was a matter of record that Pramod Shukla and Arun Shukla were neither arrayed as witness nor accused. IO denied the suggestion that the interest income of accused Seema Dixit (A-2) from the loan given to Pramod Shukla and Arun Shukla before her marriage was not shown as income i.e. at the tune of Rs.1,03,263/- reflected in her ITR by him intentionally and deliberately to a false case against the accused persons. PW-36 deposed that he had not recorded statement of relatives and persons namely Sh. K.N.Dixit, Hem Shikha Dixit, Pushpa Tripathi, Bimlawati, Ramesh Tiwari, K.M. Sharma, Pramod Shukla & Arun Shukla and it was a matter of record.
80. As regards advancing of the loans mentioned at entry no. 12 & 13 as well as entry no. 14 & 15, Ld counsel appearing on behalf of accused submitted that income tax return Ex.P-24 itself on which reliance is being placed by the prosecution, details of the interest income has been mentioned i.e. Interest income from Mr. Pramod Shukla=12,600/-; from Mr. Arun Shukla=12,360/-; from Mrs. Pushpa Tripathi=3,700/- & from Mrs. Him Shikha Dixit=3,650/- and Total as Rs.32,310/-. ITR(Ex.P-24) part i.e. balance sheet as on 31st March 1996 mentions as balance b/f = Rs.5,05,650/- apart from the aforesaid interest income. Ld counsel appearing for the accused drew attention of the court towards deposition of IO PW-36 and his following answers during cross-examination:-
"ITRs of Seema Dixit (A-2) were requisitioned from Income Tax CC No. 11/12 Page 49 out of 73 pages CBI vs A.D.Dixit & Anr.
department, but they had furnished ITRs only of the year 1996-97 and 1997-98 (contained in the file D-32) and had not furnished ITRs of the previous years . Previous IO Sh., S.S. Ali had seized the said ITR vide production-cum-seizure memo dated 07.12.1998 (D-31). It is wrong to suggest that the CBI had deliberately withheld the previous ITR of Ms. Seema Dixit (A-2) supplied by the income tax department. I cannot recollect, if accused herself had supplied me the ITRs of the previous year. ....
Ans. No such requisition letter is filed on record along with charge sheet.
It is correct that as per the balance sheet Ex.P-24 (D-32) of Mrs. Seema Dixit (A-2) as on 31.03.1996, the capital account shows at serial No.1 balance b/f Rs.5,05,650/-. Vol. As per my understanding this amount contained movable and immovable assets of Ms. Seema Dixit (A-2). I had examined Sh. Bharat Bhushan, CA of (A-2) in this regard. Again said, I will have to go through the statement of Bharat Bhushan to say whether, he was examined or interrogated as regards this specific amount of Rs.5,05,650/-. I had not carried on any investigation or made enquiries from Ms. Seema Dixit (A-2), as regards this amount of Rs.5,05,650/-. I cannot comment upon the fact that Ms. Seema Dixit had brought Rs.4,25,880/- since the time before her marriage or if the same is reflected in the ITR for the assessment year 1992-93. It is wrong to suggest that this amount was not included in the income of Ms. Seema Dixit."
81. Defence version is that a sum of Rs,4,25,880/- was brought by Seema Dixit (A-2) before her marriage. Specific suggestion in this regard was given on behalf of accused to the IO PW-36. ITR for the years prior to the assessment year 1996- 97 i.e. (Ex.P-24) is not on record. It is clear that IO PW-36 could not say if the said ITRs were supplied by the accused to him and IO could not comment if the Seema Dixit had brought Rs.4,25,880/- before her marriage or if the same was reflected in CC No. 11/12 Page 50 out of 73 pages CBI vs A.D.Dixit & Anr.
the ITR for the assessment year 1992-93. The implication of offering no comment on the specific suggestion on behalf of accused is that the said suggestion has not been specifically denied by the PW-36 meaning thereby that the explanation offered by the accused may be accepted by the court as probable in the absence of any document to the contrary placed on record by the prosecution. Ld counsel appearing for the accused drew attention of the court towards admission of prosecution witness i.e. Bharat Bhushan Vig, PW-24 in the cross-examination that he had seen income tax returns of the A-2 other than Ex.P-24 and Ex.PW-24/1 i.e. for the assessment year 1996-97 and 1997-98 at CBI Office. Net result is that the amount mentioned against entry no. 12 to 16 of movable assets i.e. Rs.1,05,000+Rs.1,03,000/+Rs.46,000+Rs.46,000+Rs.25,000, as per the charge- sheet itself is alleged to be the income of Seema Dixit (A-2) and which amount was advanced as loan by her. It has already been noted that it has not been shown or indicated by prosecution when the said amount was advanced as loan by the prosecution. On the other hand, defence version is specific and probable that a sum of Rs.4,25,880/- was brought by Seema Dixit (A-2) at the time of her marriage which capital was enhanced to Rs.5,05,650/- clearly reflected in the ITR of the AY 1996-97 (Ex.P-24) in the document which is relied upon by prosecution itself. Thus, sums mentioned against entries at serial no. 12 to 16 cannot be allowed by the prosecution to be added in the movable assets, rather an amount of Rs.4,25,880/- is required to be added in the income of Seema Dixit (A-2). Amount received by A-2 by her father-in-law K.N. Dixit
82. Defence version is that a sum of Rs.85,000/- was received by Seema Dixit (A-2) from her father-in-law K.N. Dixit by draft No. 968914 dated 30th June, 1993, issued by the SBI Main Branch Gwalier payable by SBI. Attention of the court was drawn towards Ex.P-24, which is the income tax return for the assessment year 1996-97 ending on 31.03.1996 relied upon by the prosecution. Balance sheet of the said ITR shows a sum of Rs.85,000/- was received from K.N. Dixit. This court find merits in the submission advanced by Ld counsel for the accused. IO Insp. Azad Singh, PW-36 in his deposition, admitted that Sh. K.N. Dixit had given Rs.85,000/- through draft No.968914 dated 30.06.1993 to Ms. Seema Dixit (A-2) CC No. 11/12 Page 51 out of 73 pages CBI vs A.D.Dixit & Anr.
and that the said amount is reflected in the ITR of Ms. Seema Dixit for the year 1995-96. PW-36 deposed that he had not filed any document on record to show that Seema Dixit had returned Rs.85,000/- to her father in law Sh. K. N. Dixit. He deposed that he did not felt it necessary to place on record the statement of Sh. K.N. Dixit, father-in-law of Seema Dixit, (A-2) and Sh. K.N. Dixit was not cited as a witness. Claim of K.N. Dixit regarding giving of loan of Rs.85,000/- to Seema Dixit (A-2) is supported by bank account statement. In view of this, it was incumbent upon the IO to add this sum of Rs.85,000/- in the income/receipt of the accused. Accused is entitled to the addition of the said amount in his income. Order accordingly.
Expenditure
83. Now this court shall take up item no.1 of expenditure which is sum of Rs.9,800/-, school expenses pertaining to baby Shiny Dixit your daughter at Manav Play School, Pushp Road, New Delhi. Relevant document is (D-23) (I & II) according to which @ Rs.600/- P.M. Upto August, 1996 amounted to Rs.4,800/- apart from refundable caution money of Rs.5,000/-. This expenditure is admitted by accused persons in their statement u/s 313 Cr.P.C. Item No. 2 under the head of expenditure is payment of Rs.22,249/- to the LIC in connection with policy no. 110746868 of A.K. Dixit @ Rs.3,178.4 per year w.e.f. 28.03.1990 to 08.04.1996 which is also admitted by accused persons in their statement u/s 313 Cr.P.C. Next item under the head of expenditure item no.3 is sum of Rs.6,411/- paid to MTNL against telephone number 5764601 installed at 26/8, Old Rajender Nagar, New Delhi and in this regard PW-33, Sh. H.V. Sharma proved letter dated 12.4.1999 (Ex.PW-33/A) written by accounts officer (TR-II), West MTNL, Karol Bagh, New Delhi, addressed to IO Sh. S.S. Ali, DSP, CBI. This item is admitted by the accused.
84. Item no. 4 under the head of expenditure is Rs.394 income tax paid by Seema Dixit (A-2) during check period which is admitted. Item no. 5 is payment of Rs.950/- to M/s Deepti Enterprises, Jhandewalan Extn. New Delhi for gas connection no. PE-8838. Relevant document in this regard (D-22) is a letter dated CC No. 11/12 Page 52 out of 73 pages CBI vs A.D.Dixit & Anr.
21.10.1998 written by Maveen Bal, partner M/s Deepti Enterprises to IO/S.S. Ali, Dy SP. This item is admitted by accused persons. As regards item no.6 & 7 i.e. Rs.3930/- and Rs.98 as payments made to M/s Jeewan Medical Center vide bill no. 2914 dated 6.6.96 and payment made to V. Seth Jassa Ram Hospital, Karol Bagh, New Delhi, Bill No. 19370 dated 26.7.96, indisputably neither any document has been placed or proved on record nor any witness has been produced by the prosecution, therefore it is held that these expenditures are not proved. Item no. 8 is payment of Rs.63,400/- to M/s Khanna Jewelers Pvt. Ltd. Karol Bagh vide receipt no. 8446 dated 16.02.1996 (Ex.PW-1/E) against bill no. 5243 dated 13.01.1996 (Ex.PW-1/C) seized by the IO Insp. Azad Singh PW-36 vide seizure memo (Ex.PW-1/A) which is also admitted by accused persons.
85. Item No. 9 as regard payment of Rs.62,250/- made to M/s India Radio and Electric Corporation for purchase of Videocon VCR vide receipt no. 24600 dated 27.03.1991 for Rs.16,200/- (Ex.PW-7/1), Videocon Colour TV vide receipt no. 24602 dated 27.03.1991 for Rs.13,000/- (Ex.PW-7/2). Video Game vide receipt no. 43988 dated 04.06.1995 for Rs.2,050/- (Ex.PW-7/4), Video Game vide receipt no. 44031 dated 08.06.1995 for Rs.1,200/- (Ex.PW-7/3), Sony Music System vide receipt no. 43984 dated 04.06.1995 for Rs.20,000/- (Ex.PW-7/6), Portable Colour TV vide receipt no. 43986 dated 04.06.1995 for Rs.9,800/- (Ex.PW-7/5). Accused in their statement u/s 313 Cr.P.C. stated that Videocon VCR and Videocon Colour TV, were received as gift in their marriage, which fact also finds mention in the observation memo (Ex.PW-13/F) at serial no. 49 and 45 prepared by the IO/Insp. S.K. Bhati. Purchase of Video Games and Portable Colour TV are admitted. Value of Music System mentioned in the observation memo is Rs.18,000/- and of Colour TV included in the household article has been valued as Rs.10,500/- in observation memo but on the face of the alleged receipt no.43986 dated 04.06.1995, its value has to be taken as Rs.9800. Therefore, Rs.10500- Rs.9800=Rs.700 is required to be subtracted on this count from the total amount of the house-hold items mentioned in the observation memo. Duplication of items is apparent on the face of record. This court finds merit in the submission advanced by Ld. Counsel for the accused (articles were not valued) correctly and CC No. 11/12 Page 53 out of 73 pages CBI vs A.D.Dixit & Anr.
articles have been taken twice, once in the observation memo Ex.PW-13/F dt.23.8.96 (D-4) in which articles have been mentioned and roughly valued and then in the other items of expenditure. Perusal of the material on record as well as observation memo Ex.PW-13/F shows that Videocon Colour Television with TV trolley and VCR make Videocon are the items stated to have been gifted in marriage in the year 1991. There is no dispute that A.K. Dixit (A-1) got married with Seema Dixit (A-2) in the year 1991, therefore, the value of these two items and portable colour TV which has already been incorporated in the value of the house- hold articles as per observation memo Ex.PW-13/F requires to be subtracted from the total amount in this head of expenditure. Thus, Rs.62,250 minus (16,200+13,000+9800)=23,250/- can only justifiably be taken in this head of expenditure.
86. Next item in the expenditure is payment of Rs.23,100/- made to M/s Divya Electronics, 180, Pratap Nagar, Mayur Vihar, Delhi for BPL refrigerator (3002 Ltrs) on 18.7.96. Accused stated that this item is mentioned at Sl. No. 60 of the list of the articles of the observation memo acquired in the year 1994 and its value is assessed as Rs. 10,000/-. Neither any document in this regard to this expenditure of Rs.23,100/- has been proved nor any witness has been produced by the prosecution to prove this expenditure of Rs.23,200/- allegedly made by accused to M/s Divya Electronics. In view of this and the fact that the refrigerator found mentioned in the observation memo prepared at the time of search at the house of the accused, this amount i.e. Rs.23,200/- alleged by prosecution cannot be accepted as the expenditure incurred by the accused. Similarly, item No. 11 under the head of expenditure is loan of Rs.5,000/- returned on 28.11.94 to DMC Engineering Department Co-op. Thrift and credit society, Town Hall, Delhi has not been established by the prosecution. Therefore this amount of Rs.5,000/- cannot be allowed to be taken into account by prosecution as alleged expenditure.
87. Next item under the head of expenditure is that Seema Dixit (A-2) repaid a loan of Rs.70,000/- (D-42) to M/s Shilly Chit and Finance Pvt. Ltd. Hauz Qazi, Delhi vide cheque no. 845092 dated 23.01.1996 from Saving Bank A/C no. 8389, United Western Bank Ltd, Karol Bagh, New Delhi is admitted by accused. Item CC No. 11/12 Page 54 out of 73 pages CBI vs A.D.Dixit & Anr.
no.13 is repayment of loan of Rs.42,000/- to Smt. Vimlawati vide cheque no. 090209 dated 24.02.1995 from Canara Bank, Karol Bagh, New Delhi which is admitted by accused persons in their statement u/s 313 Cr.P.C. Item no.14 is repayment of loan of Rs.22,000/- to Smt. Vimlawati vide cheque no. 246738 dated 28.02.1995 from your A/C No. 12453, Canara Bank, Karol Bagh, New Delhi. Statement of account (D-104)(III) shows the debit entry in this regard. Item no.15 is again repayment of loan of Rs.40,000/- to Smt. Vimlawati vide cheque no. 909122 dated 28.02.1995 from your A/C No. 15058, Canara Bank, Arya Samaj Road, Karol Bagh, New Delhi. These items of expenditure admitted by accused.
88. Item no. 16 is banker's cheque No.408442 dated 6.08.1996 Ex.PW-4/D (D- 80(i) amounting to Rs.44,350/- issued in favour of co-accused Mrs. Seema Dixit, Evidence on record shows that an application form dated 6.08.1996 (Ex.PW-4/C) was got prepared in the name of Sunil Jain, resident of AB3, Mianwali Nagar, Delhi by Rajan Kumar (PW-4) working with M/s Bharat Bhushan Brij & Co. a firm of Chartered Accountant and to whom the amount for purchasing the banker's cheque was given by his office. Item no. 17 under the head of expenditure is banker's cheque No.408443 dated 6.08.1996 Ex.PW-4/F amounting to Rs.48,500/- purported to be got prepared in the name of Rajan Kumar, resident of 36/1 Haiderpur, Delhi (PW-4). Defence version is that loan was returned by Sh. Arun Shukla, brother of Seema Dixit (A-2). These expenditures were denied by accused persons, who in their statements u/s 313 Cr.P.C explained that banker's cheque was got issued by Pramod Kumar Shukla on behalf of his brother Arun Shukla and endorsement to this effect exists on the back side of application form (Ex.PW-4/C). This amount of banker's cheque was repaid by Arun Shukla brother to Seema Dixit as part of repayment/return of the loan taken by him from Seema Dixit. In his deposition, IO Azad Singh PW-36 deposed that sum of Rs.92,850 (i.e. Rs.44350 + Rs.48500/-) was deposited in SB Account No. 8389 of United Western Bank of Ms. Seema Dixit (A-2) on 06.08.1996. PW-36 admitted that the sum of Rs.92,850 (i.e. Rs.44350 + Rs.48500/-) mentioned in item No. 16 & 17 of the list of expenditure of the charge sheet was included in the sum of Rs.1,08,910/- i.e. balance amount in SB Account No. 8389 of United Western Bank mentioned at CC No. 11/12 Page 55 out of 73 pages CBI vs A.D.Dixit & Anr.
item No. 6 of list of assets.
89. Item no. 18 of expenditure is banker's cheque No.408496 dated 12.08.1996 Ex.PW-31/B amounting to Rs.41,900/- in favour of Seema Dixit (A-2) on the basis of application form/voucher dated 12.08.1996 (Ex.PW-26/1) purported to be got prepared in the name of K.N.Dixit. Item no.19 is a banker's cheque No.408576 dated 19.08.1996 Ex.PW-31/C, issued from SBI Jwalapuri, New Delhi amounting to Rs.49,850/- in favour of Seema Dixit prepared on the basis of application form/voucher dated 19.08.1996 (Ex.PW-26/2) purported to be got prepared in the name of K.N.Dixit, resident of 26/8 Old Rajender Nagar, New Delhi. These items are not admitted as expenditure by accused who stated that these amount were returned as part of loan by Pramod Shukla to his sister Seema Dixit (A-2) but IO of this case concealed the fact by withholding statement of Sh. Pramaod Shukla (Ex.PW36/D-12) wherein this fact of return of loan has been stated. Similarly Item no. 20 is a banker's cheque No.072918 dated 07.12.1995 Ex.PW-4/B amounting to Rs.49,650/- in favour of Seema Dixit (A-2) banker's cheque is prepared on the basis of application form/voucher dated 07.12.1995 (Ex.PW-4/A (D-79(ii)) purported to be prepared by and in the name of Sh. Raj Mathur, resident of GH-9, Paschim Vihar, Delhi which is disputed by accused persons in their statement u/s 313 Cr.P.C. On behalf of the accused it was stated that Smt. Him Shikha Dixit had given loan to Seema Dixit (A-2) but IO intentionally withheld statement of Smt. Him Shikha Dixit (Ex.PW36/D-17), who had supported therein defence version.
90. Thus, as regards item no.16 to 20 of the head of expenditure, defence version is that amounts totaling Rs.2,34,250/- for banker's cheques have been wrongly shown by the investigating agency and the said amount was not invested and was not the expenditure incurred by the accused, but was actually i.e. loan amount returned by her relatives. Sh. Surender Sinha, Ld Special PP argued that accused persons got prepared five Bankers Cheques, credited in the account of Smt. Seema Dixit (A-2) regarding which neither ( A-1) intimated to his department, nor (A-2) intimated to the Income Tax Department about the amount involved in these banker's cheques. Ld Prosecutor submitted that PW-26 has deposed that CC No. 11/12 Page 56 out of 73 pages CBI vs A.D.Dixit & Anr.
Bankers Cheque No. 408496 dated 12.08.1996 was prepared on the application form of Sh. K.N.Dixit Ex. 26/1 and Bankers Cheque No. 408576 dated 19.08.1996 was prepared on the application form (Ex.PW-26/2) of Sh. K.N. Dixit and amount for preparing the cheques was given by Bharat Bhushan Vij, chartered accountant to his employee Vinod Kumar, who physically went to the bank and got prepared those bankers cheques showing applicants name as K.N.Dixit. Both these Bankers Cheques were got prepared in favour of Smt. Seema Dixit (A-2). As per the deposition of Vinod Kumar PW-26, he did not know K.N. Dixit and application forms were filled in his handwriting. Ld Spl. PP submitted that PW-4 Rajan Kumar deposed that got prepared Bankers Cheque No. 408442 on the application form in the name of Sunil Jain EX.PW-4/C Cheque No. 408443 in the name of Rajan Kumar Ex.PW-4/E and cheaue No. 072918 in the name of Raj Mathur Ex. PW-4/A. He deposed that he filled up the application forms of all the three application and signed as Raj Mathur, Rajan Kumar and Sunil Jain.
91. Ld PP submitted that all the above mentioned three bankers cheques were got prepared by PW-4 Rajan Kumar either in his name or in the names of other persons i.e. Raj Mathur and Sunil Jain. Other two cheques were got prepared by PW-26 Vinod Kumar in the name of Sh. K.N. Dixit, whereas, the accused persons explained that bankers cheque were got prepared by Sh. Arun Shukla and Pramod Shukla, both brothers of Smt. Seema Dixit (A-2) for the return of the loan amount given by accused (A-2) to her brothers. Ld PP submitted that from the above evidence, it is clear that the accused persons tried to adjust their disproportionate assets by preparing these five bankers cheques and rotated the ill gotten money worth Rs. 2,33,250/- through these entries. It is submitted that under the Income Tax Rules and Section 269 SS, any transaction above amount of Rs. 20,000/- must be through Account Payee Cheque is enclosed and moreover, Pramod Shukla and Arun Shukla brothers of Smt. Seema Dixit (A-2) could have given this amount through Account Payee Cheques.
92. Ld Special PP argued that it is pertinent to mention that A.K.Dixit (A-1) did not inform to his department either at the time of giving loan by Seema Dixit (A-2) to his brothers Arun Shukla and Pramod Shukla or at the time of so called return of CC No. 11/12 Page 57 out of 73 pages CBI vs A.D.Dixit & Anr.
loan amounts through these so called bankers cheques. Amount of bankers cheques, which were credited in the account of Smt. Seema Dixit (A2) Ex. PW- 28/B was not intimated to the Income Tax Department by Smt. Seema Dixit (A-2). Hence it is submitted that this amount of Rs.2,33,250/- cannot be treated as income from the known sources. Instead, this is an ill gotten money of A.K.Dixit (A-
1) rotated through these bank entries.
93. Ld counsel appearing for the accused drew attention of the court towards Rule 26 of CCS which reads as under:-
"(26) CCS (Conduct) Rules, 1964 - Transaction entered into by the spouse and other members of family of a Government servant out of their own funds. The undersigned is directed to say that reference are being received in this Department from time to time from various Ministries and Departments seeking clarification regarding the applicability of provisions of sub-rules (2) and (3) of Rule 18 of the CCS (conduct) Rules, 1964, to transactions entered into by the spouse and other members of family of a Government servant out of their own funds (including stridhan, gifts, inheritance etc.) as distinct from the funds of Government servant himself. It is hereby clarified that transaction entered into by the spouse or any other member of family of a Government servant out of his or her own funds (including stridhan gifts inheritance etc) as distinct from the funds of the Government servant himself, in his or her own name and in his or her own right, would not attract the provision of sub-rules (2) and (3) of rule 18 of the CCS (Conduct) Rules, 1964." paragraph 2 (ii) of the Ministry of Home Affairs Office Memorandum No. 25/18/59-Estt.(A), dated the 28th August, 1959 (decision No.8) may accordingly be treated as modified. [MHA, Department of Personnel & AR OM No. 11013/13/78-Estt.(A), dated the 11th September, 1978]"
94. Prosecution has not brought any other circular or government notification showing position which is contrary to the circular noted above. Relevant evidence CC No. 11/12 Page 58 out of 73 pages CBI vs A.D.Dixit & Anr.
adduced by prosecution witnesses as regards banker's cheques may now be noted. PW-34 Suraj Bhan Kain, Assistant Manager, SBI Jwalapuri Branch in his cross-examination deposed as under:
"It is correct that any person in the bank can deposit money on behalf of any other person. It is correct that any person can get a banker's cheque issued on behalf of any other person after filling the application form/ voucher and depositing the amount in the bank. In my presence, no other employee of the bank had written, made endorsement or signed any application form or the banker's cheque referred by me in my examination in chief. At the time of receiving of the application forms/vouchers, no person had made any endorsement on the back of the said application forms/vouchers. In my presence, no other employee of the bank had obtained the said endorsement on the back of the application form/voucher at the time of issuance of the banker's cheque to the person concerned/ applicant. I cannot admit or deny the suggestion that the endorsement of overleaf on the back of the application forms/vouchers referred in my examination in chief were obtained by the concerned bank official at the time of issuance of the banker's cheque. Vol. It is possible that cashier who received the cash might have obtained the endorsement overleaf on the back of the application forms/vouchers to the person who received the banker's cheque."
95. Further more PW-24 Bharat Bhushan chartered accountant did not support the case of prosecution and during his cross-examination by Ld SPP for the CBI, denied suggestion that money for purchase of five bankers cheques were given to him by A.K. Dixit (A-1) who was identified by him in the court thus disproving the case of prosecution. He deposed that he could say with confidence that the application for issuance of banker's cheque in the name of Seema Dixit was filled in his office. PW-24 admitted that Vinod Kumar and Ram Dutt Chaudhary were his CC No. 11/12 Page 59 out of 73 pages CBI vs A.D.Dixit & Anr.
employees during the relevant period. PW-24 further stated that he had written details of the currency notes on (Ex.PW-4/A) in his office and not in the bank. He denied the suggestion that it was essential that the name of applicant mentioned in (Ex.PW-4/A) had to be the person in whose name the bank draft was to be issued and the person assigning the application could be different. He deposed that Mr. Shukla had given money for making all the bank draft in the name of Seema Dixit vide Ex.PW-4/A. He deposed that Mr. Shukla had made the payment of purchase of bankers draft in question vide Ex.PW-4/C, Ex.PW-4/E and bankers draft Mark PW-24/A. He deposed that the said banker's cheques were filled in by staff of the bank but could not tell who had signed as the applicants as the same was not filled in his presence.
96. On scrutiny of evidence on record, this court finds that the contention of the prosecution that the aforesaid five banker's cheques was the amount invested by the accused in purchasing these banker's cheques is not acceptable. Prosecution witness Bharat Bhushan (PW-24) has clearly stated that the said amount for preparing bank drafts (Ex.PW-4/A, C & E) was given by Mr. Shukla. There is no incriminating evidence on record to establish that alleged amount was invested by the accused A-1 and A-2. In the present case, as per the defence version the loan advanced by Seema Dixit (A-2) to her brothers and relatives was returned. As per CCS Rules noted above, it is not necessary that the transaction entered into by the spouse or any other member of family of a Government servant out of his or her own funds (including stridhan gifts inheritance etc) as distinct from the funds of the Government servant himself, in his or her own name and in his or her own right, would not attract the provision of sub-rules (2) and (3) of rule 18 of the CCS (Conduct) Rules, 1964. Prosecution has failed to establish that Seema Dixit (A-2) had utilized the funds of A.K.Dixit (A-1). Moreover, it does not matters whether the said banker's cheques were prepared by Rajan Kumar, Raj Mathur or Sunil Jain or they had filled the applications. PW-4 Rajan Kumar, who was the employee of PW- 24 Bharat Bhushan has categorically testified that Bharat Bhushan had called him to his room and given him money for obtaining drafts. It is a matter of record that Sh. S.K. Bhati recorded the statement of Sh. K.N. Dixit U/S 161 Cr.P.C. dated CC No. 11/12 Page 60 out of 73 pages CBI vs A.D.Dixit & Anr.
13.08.97 (Ex.PW-36/D-14). Defence version that out of a loan of Rs.1,05,000/- given to Pramod Shukla and Rs.1,03,000/- given to Arun Shukla by their sister Seema Dixit (A-2) before her marriage with A.K. Dixit (A-1), Pramod Shukla and Arun Shukla returned part of the loan amount in the form of banker's cheque i.e. cheque no. 408442, 408443, 408576 and 408496 Ex.PW-4/F, Ex.PW-4/D, Ex.PW- 31/C & Ex.PW-31/B (D-80, 81, 82 & 83) is found probable.
97. PW-34, Suraj Bhan prosecution witness from the Jwalapuri Branch of SBI, admitted that any person in the bank could deposit money on behalf of any other person. He admitted that any person could get a banker's cheque issued on behalf of any other person after filling the application form/ voucher and depositing the amount in the bank. PW-24 Bharat Bhushan has clearly stated that he had written the details in the application. PW-24 has categorically denied the suggestion given by the Ld Prosecutor that money for purchase of five banker's cheques was given by A.K.Dixit (A-1). In response to suggestion given by Ld PP for CBI, PW-24 categorically denied that all the five bankers cheques vide application Ex.PW-4/A, Ex.PW-4/C, Ex.PW-4/E, Ex.PW-24/A and Ex.PW-24/B were purchased for adjustment ill gotten money of A.K. Dixit (A-1) thus falsifying the case of prosecution. PW-24 denied that income tax returns Ex.P-24 and Ex.PW-24/1 were false. PW-24 deposed that rather they were correct as per bank statements. To sum up, it cannot be held that the accused had invested this sum of Rs,2,33,250/- in five banker's cheques as alleged by the prosecution. Therefore, this amount has to be subtracted from the expenditure of accused.
98. Last item no. 21 is that A.K. Dixit (A-1) incurred expenditure of Rs. 1245/- as rent for locker No. 111 Central Bank of India, Chuna Mandi, Pahargnj, New Delhi which accused persons stated that was a matter of record. Item no. 22 is total house hold expenditure @ 30% (Rs. 1,10,798/-) of Carry Home Salary from 28.08.88 to 23.08.96 amounting to Rs. 369328/- which is not disputed by accused persons in their statement u/s 313 Cr.P.C. It was contended that salary of A.K. Dixit (A-1) prior to check period was not included in his income by the IO despite documents on record.
99. On appreciation of evidence on record as a whole this court finds that CC No. 11/12 Page 61 out of 73 pages CBI vs A.D.Dixit & Anr.
prosecution has failed to establish acquisition of any disproportionate assets by A.K. Dixit (A-1) or commission of criminal misconduct on his part. In view of this, there is no question of intentionally aiding or abetting by Seema Dixit (A-2) in commission of criminal misconduct by A-1 and prosecution has failed to establish any abetment on the part of Seema Dixit (A-2).
Charges under Section 11 of POC Act
100. Now the next point for consideration is whether Accused Ajay Kumar Dixt (A-1) accepted without consideration cheque no. 009339, drawn on Bank of Baroda, Bharat Nagar, dt. 11th January, 1996 from one Mr. Vinod Sachdeva, owner of property no. D-851, New Friends Colony, New Delhi with knowledge that he had carried out unauthorized construction and did not take any action for removal of the unauthorized construction and thereby misused his official position by showing undue favour to Mr. Vinod Sachdeva. In this regard, Sh. Surender Sinha, Ld. Spl. PP argued that on Scrutiny of file relating to Sealing of property No.D- 851, New Friends Colony shows orders for the sealing of this property were passed vide note Ex. PW-23/1 (D-90) and the property was sealed by A.K.Dixit (A-1) accordingly. He submits that part demolition was carried out on 19.07.1995 and 21.07.1995 under the supervision of A.K.Dixit (A-1) Ex. Mark 23/A and Mark PW-23/B. Ld PP submitted that site plan of property No. D-851, New Friend Colony, New Delhi had been revoked and the complete property was constructed unauthorizedly as a commercial complex and premises of Archives Gallery under occupation of Vinod Sachdeva was part and parcel of this unauthorized construction and was liable to be demolished. Vinod Sachdeva, PW-16, Director of M/S Rex Films (P) Ltd. deposed before the Court that A.K.Dixit (A-1) was known to him for the several years and Vinod Sachdeva issued Cheque (Ex. PW1/F) in the name of M/S Khanna Jewelers Pvt. Ltd., for an amount of Rs. 63,400/-as he was asked by A.K.Dixit (A-1) that A-1 wanted to purchase some jewelry. Seema Dixit (A-2) purchased gold ornaments from M/S Khanna Jewelers vide (EX. PW- 1/C). It is submitted that it is evident from Documents Ex. PW-1/D, E and F that the cheque bounced and cash payment was made by Smt. Seema Dixit (A-2) against the bill for which cheque was issued by M/S Rex Fils (P) Ltd Prop. Vinod CC No. 11/12 Page 62 out of 73 pages CBI vs A.D.Dixit & Anr.
Sachdeva. It is further alleged that a Maruti Zen Car No. Dl-3CG- 2980, registered in the name of M/S Rex Films (P) Ltd., Prop. Vinod Sachdeva, found in possession of A.K.Dixit (A-1) outside his residential premises No. 26/8, New Rajinder Nagar, New Delhi at the time of search conducted by the CBI team on 23.08.1996. It is submitted that Vinod Sachdeva PW-16 deposed that A-1 often used to come to him and he gave car to A.K.Dixit (A-1) because he asked him that he had an old car and he wanted new car for driving.
101. Sh. Sinha, Learned Prosecutor argued that it is clear that A.K.Dixit (A-1) was the officer, to whom the duty of sealing and removal of unauthorized construction of Property No.D-851, New Friends Colony was assigned and Vinod Sachdeva had official dealing with A.K.Dixit (A-1) because his 'Archives Gallery' Shop was housed in Property No. D-851, New Friends Colony, New Delhi and was to be demolished as the complete property was declared unauthorized due to revocation of building plan of this building. Payment of RS.63,400/-vide cheque Ex. PW-1/F and lending New Maruti Zen Car synchronized with sealing and removal of unauthorized construction of property No. D-851, New Friends Colony. It is submitted that there was no other transaction between A.K.Dixit (A-1) and Vinod Sachdeva PW-16 except above mentioned, whereas, they were known to each other for several years. Ld PP argued that accused A.K.Dixit (A-1) did not remove the unauthorized construction at the basement, Ground Floor, First Floor and Second Floor and only part removal was carried out at third floor just to complete the paper formalities with respect to property No.D-851, New Friends Colony, New Delhi, which gave undue advantage/ pecuniary gain to the occupants of this property including Sh. Vinod Sachdeva PW-16 who was the occupant of Archive Gallery and A.K.Dixt (A-1) showed favour to the occupants of property No. D-851, New Friends Colony, New Delhi and thus, it stands proved that A-1 accepted cheque of Rs. 63,400/- from Sh. Vinod Sachdeva with whom he had official business and showed undue favour by not removing complete unauthorized construction at property No. D-851, New Friends Colony, New Delhi, wherein shop of Vinod Sachdeva was situated and was liable to be demolished.
102. Per contra, Sh. Mohd. Nasir, Ld. Counsel appearing for the accused CC No. 11/12 Page 63 out of 73 pages CBI vs A.D.Dixit & Anr.
submitted that allegations are baseless and without any force and on the basis of evidence on record, no case u/s 11 of P.O.C Act 1988 or any other offence was made out. Ld counsel submitted that accused told his version to the IO when he was called upon to do so, to the effect that there was a family function on 15.1.96 at Meerut, at parent's house of Seema Dixit wherein she had to participate and on 10.1.96, she selected a gold set at the shop of M/s Khanna Jewellery valued at Rs. 63,400/- and accused requested Vinod Sachdeva, his friend to give him a cheque for Rs.63,400/- in favour of Khanna Jewellers, who told that there was no balance in his firm's account. As accused had to purchase jewelery and wanted to gain time knowing fully well that cheque shall be dishonored, asked Sachdeva to issue the cheque, consequently, accused got the jewelery on 13.1.96 and gave that cheque to the jewelers. Cheque was dishonored on presentation and the accused paid cash of Rs.63,400/- to Khanna Jewellers on 16.2.96, when money was available with him.
103. Ld counsel urged that except admitting that accused was a public servant, nothing has been established by the prosecution. Vinod Sachdeva was examined by IO u/s 161 Cr.p.c. on 3 occasions i.e. on 23.9.96, 17.11.98 and 12.11.99, who has deposed that he had friendly terms with A.K.Dixit and as such he had given his car to the accused from June,1996 to 23.8.96, which was done in a friendly way. He was friendly with A.K.Dixit and knew wife of A.K.Dixit because he had intimacy with A.K. Dixit since long and at the time, when he issued the cheque in question, he knew there was no balance in his firm account. Vinod Sachdeva told A.K.Dixit before he issued that cheque that there was no balance in his firm account and cheque was dishonored due to want of balance in bank account. Admittedly, Vinod Sachdeva did not pay any cash of Rs.63,400/- or part of it, to M/s Khanna Jewelers (P) Ltd. Evidence collected shows that accused did not accept or obtained any valuable thing and drawer knew that cheque would be dishonored, because there was no cash in the account of drawer. It is submitted that person to whom it was given, was told that it would be dishonored as there was no balance in his account and as such, accused knew that there was no balance in the account of Vinod Sachdeva could not be a valuable thing, but a CC No. 11/12 Page 64 out of 73 pages CBI vs A.D.Dixit & Anr.
trash.
104. It is submitted that ingredient of sec. 11 are not attracted in the present case and IO, intentionally has not mentioned in the charge sheet that A.K. Dixit was posted as ZE (Building) (Zonal Engineer Building) from March 1995 to September, 1995 and thereafter, he was transferred to Division IX (Defence Colony). It is submitted that the cheque Ex.PW-1/F was issued by Vinod Sachdeva PW-16 in the name of Ms.Khanna Jewellers on 11.1.96 when A.K.Dixit (A-1) was not posted as ZE (B) in his area and he was posted in another zone i.e. Shahdara North Zone. In his deposition, PW-16 Vinod Sachdeva clearly deposed that he issued the cheque (Ex.PW-1/F) in the name of M/s. Khanna Jewelers Pvt. Ltd. on the request of Ajay Kumar Dixit, who asked for money in friendship and who wanted to purchase some jewelery, however cheque was bounced due to lack of funds in his account and cheque was not obtained in the capacity of working as public servant. Cheque Ex.PW-1/F was not issued for any consideration. PW-16 deposed before the Court that "I do not know who was the occupant of D-851, New Friends Colony, New Delhi in the year 1995. Vol., there were approximately 20 occupants of the building in the year 1995. There were eight shops in the ground floor and all eight were different persons. Likewise, the portions on the first, second and third floor were occupied by different persons".
105. Learned counsel argued that during March, 1995 to September, 1995 A.K. Dixit was not concerned in the proceedings of demolition of D-851, New Friend Colony and it was JE concerned of the area according to Office Order No. 33 Building Dt. 25.9.95 Town Hall, Municipal Corporation of Delhi responsible for demolition. A.K. Dixit as Zonal Engineer (Building) had power to order demolition of unauthorized building. Documents filed by prosecution shows that it was A.K. Dixit (A-1) who had got property D-851, New Friend Colony sealed on 20.4.95. It is submitted that there was a long history of D-851, New Friends Colony, which was sealed, de-sealed and again sealed many times and first demolition order is dt. 14.01.92 and procedure of demolition of unauthorized building is that office Incharge building O.I (B) gives 10/12 files of structures which are to be demolished to Junior Engineer, who takes police help and gets the property demolished. When CC No. 11/12 Page 65 out of 73 pages CBI vs A.D.Dixit & Anr.
he comes back to the office, he gives a report to ZE (B). ZE (B) then gives his comments e.g. "Try again" in the case where no demolition action could be taken. Files are again given to office Incharge building (a clerk) who used to give files to JE for action, whenever the turned came. A.K. Dixit was not concerned with physical demolition of D-851 at any time and it was the JE, who had the duty and power to demolish property according to orders of the higher officers.
106. Ld counsel argued that in the present case the reports regarding demolition of D-851, New Friends Colony Dt. 19 th July 1995 and 21st July 1995 were given by the JE and since A.K.Dixit was not concerned with physical demolition of D-851 at any time and as such charge under section 11 of P.O.C. Act,1988 is not made out. Ld counsel submitted that as per the material available on record, during the long history of said property of sealing, stay order by the court, de-sealing, only for the first time demolition action was taken in the building in question under the supervision of accused A-1 Ajay Kumar Dixit.
107. To succeed for commission of offence u/s 11 'P.O.C Act 1988' prosecution has to prove:-
(i) That the accused is a public servant. (ii) That he accepted or obtained, or for agreed to accept, or has attempted to
obtain, for himself or for someone else, a valuable thing.
(iii) That he gave no consideration for it, or gave a consideration which he knew to be inadequate.
(iv) That the person from whom the accused accepted, etc. the same was known to the accused to have been, or then was, or was likely to be, concerned in a proceeding or business transacted or about to be transacted by himself, or which had a connection with the official functions of himself, or of a public servant to whom the accused was subordinate, or from a person known, the accused to be interested in, or related to, the person so concerned.
108. Moreover, as per the case of prosecution itself, cash amount of Rs.63,400/- was given to M/s Khanna Jewelers by Seema Dixit (A-2) on 16th February 1996 and admittedly, Vinod Sachdeva (PW-16) had not paid any cash of Rs.63,400/- or CC No. 11/12 Page 66 out of 73 pages CBI vs A.D.Dixit & Anr.
any part thereof to M/s Khanna Jewelers (P) Ltd. It has only come in the evidence of the IO PW-36 that vide seizure memo (Ex.PW-36/A) sealing file containing note sheet 1-N to 31-N and 1-C to 133-C i.e. Ex.PW-36/B file pertaining to the unauthorized construction of the said property was placed on record. As regards demolition at property no. D-851, prosecution examined only one witness i.e. Vijay Kumar Kandyan, JE Central Zone, Lajpat Nagar in 1995 as PW-23 placed on record note sheet 31-N Ex.PW-23/1 and Ex.PW-23/2 and identified signatures of Ashok Kumar, Additional Commissioner (water) at point A and B and placed on record photocopies of the note sheet Mark PW-23/A and Mark PW-23/B regarding demolition charges. He stated that property was sealed under the supervision of A.K.Dixit (A-1), ZE, (Building) due to unauthorized construction thereon. Perusal of the record does not shows any concern of Vinod Sachdeva with the said property. In the relevant document, name of Ranveer Singh Narang and Sunita Basin, the alleged owner and builder is only reflected. As per note Ex.PW-23/1 and Ex.PW- 23/2 what appears is that Sh. AshoK Kumar, Additional Commissioner (W) had ordered sealing of the property and the entire building was sealed on 20th April 1995. PW-23 has categorically stated that the property was sealed under the supervision of A.K. Dixit (A-1).
109. There is no other documentary or testimonial evidence placed on record by the prosecution to prove the fact that any demolition was ordered as regards the property in occupation of Vinod Sachdeva in property no. D-851. No note sheet or any order of any authority or superior official of MCD was brought to the notice of the court ordering demolition of the property in question or pertaining to the property in occupation of Sh. Vinod Sachdeva. Except report dated 19th July 1995 and 21st July 1995 indicating that the third floor of the building was damaged which continued for 5 hours and 4 hours on the said dates respectively which also stated about recovering of demolition charges and there is nothing else on record indicating that the entire property was to be demolished or the portion under possession of Vinod Sachdeva was required to be demolished or was ordered to be demolished by A.K. Dixit (A-1) or any other official of MCD.
110. On scrutiny of evidence on record in its entirety, this court finds that CC No. 11/12 Page 67 out of 73 pages CBI vs A.D.Dixit & Anr.
prosecution has failed to establish the ingredients of Section 11 POC Act 1988. PW-16 has clearly stated that A.K. Dixit (A-1) was his friend and was known to him for several years and he has not uttered anything to indicate that the dishonoured cheque was given by him to A.K. Dixit (A-1) in connection with any official work. There is nothing on record to show that the cheque no.009339 dated 11th January 1996 (Ex.PW-1/F) in the sum of Rs.63,400/- was issued by Vinod Sachdeva to A.K.Dixit (A-1) in his capacity as public servant. Evidence on record shows that vide receipt dated 16th February 1996 of M/s Khanna Jewelers (P) Ltd. (Ex.PW- 1/E)(D-88) sum of Rs.63,400/- was paid in cash by Seema Dixit (A-2) against dishonour cheque no. 009339 on account of bill no. 5243 dated 13th January 1996 (Ex.PW-1/C) and there is nothing on record to show that any payment for jewelery was made by Vinod Sachdeva. It has come on record that since cheque had been dishonoured, therefore no consideration had actually passed from Vinod Sachdeva to A.K. Dixit (A-1) and even otherwise, there is nothing on record to show that A.K.Dixit (A-1) did an act or failed to perform his official duty in connection with Vinod Sachdeva (PW-16) who has clearly stated in his deposition that A.K.Dixit (A-1) was his friend.
111. Prosecution was required to specifically establish beyond reasonable doubt that firstly there was unauthorized construction at property no. D-851, New Friends Colony and particularly in the portion which is alleged to be in the occupation of Vinod Sachdeva and secondly it was required to be demolished by A.K. Dixit (A-1) or it was his concern and came within the purview of his duties, who did not remove unauthorized construction therein in lieu of having accepted any consideration or the cheque from the concerned person. In his deposition, PW-16 has merely stated that he was running an Archies Gallery at D-851 and that there was no demolition of Archies Gallery at D-851. There is nothing on record to show that there was unauthorized construction at D.851, New Friends Colony, Delhi. There is neither any documentary evidence on record placed by the prosecution nor any testimonial evidence to indicate or establish that premises of PW-16 Vinod Sachdeva at D-851, New Friends Colony, Delhi was required to be demolished or the portion of the building was unauthorized. There is nothing on record to show CC No. 11/12 Page 68 out of 73 pages CBI vs A.D.Dixit & Anr.
that A.K. Dixit (A-1) had not taken any action for removal of the alleged unauthorized construction. There is no scope for assumptions, surmises and conjectures for attracting penal liability. In view of this, it cannot be held that PW- 16 gave a consideration or inadequate consideration in connection with proceeding or he had any connection or official relation with A.K. Dixit (A-1). Thus, this court find that prosecution has failed to bring home the charges u/s 11 POC Act against A.K. Dixit (A-1) beyond the shadow of reasonable doubts. Conclusion
112. On appreciation of evidence, this court finds that assets which accused was having as on 25.8.88 i.e. prior to check period, other incomes/receipts, expenditure and movable or immovable assets and which ought to have been taken into account by the investigative agency/prosecution are as under:-
Income (Chart-1A) S.No. Particulars Amount (in Rs) 1 Carry home salary for the period from 25.8.88 to 23.8.96 3,50,304/- 2 Notional pay for the period from 1.6.90 to 16.7.90 4,869/- 3 Notional pay for the period from 1.6.94 to 8.9.94 14,185/- 4 Sale of jewelery 1,49,996/-
5 Income from M/s Shelly Chit and Finance Pvt. Ltd., Hauz 70,000/-
Quazi 6 Loan received from Smt. Vimlawati. 1,15,000/- 7 Income from LIC policy 10,000/-
8 Income from MCD Engineering Department thrift and credit 10,000/-
security 9 Income from rent security 75,000/-
10 Income from rent of property no. 26/8, Old Rajinder Nagar, 60,000/-
New Delhi Total 8,59,354/-
111. Other income/receipts not taken into account by the investigating agency as found by this court after appreciation of evidence on record.
Chart-1B S No. Item Number of the Income, Amount Relevant date/ period to which Expenditure and assets as shown in (in Rs.) assets pertain. the charts.
1. Rental income from paying guests 90,000/- 1995-96 Dheeraj and Sameer Bhatacharya for CC No. 11/12 Page 69 out of 73 pages CBI vs A.D.Dixit & Anr.
15 months at 26/8 Old Rajinder Nagar house @ 3000/- p.m. each.
2. Assets of the A-1 prior to the check 39,200/- 1981-82 & 1986 to 1988 period after deduction of 30% house-
hold expenditure.
3. Assets/Capital of A-2 at the time of her 4,25,880 1991 marriage with A-1 (out of the said income admittedly, loans mentioned at entry No.12 to 16 of movable assets of the charge sheet were advanced)
4. Interest earned by A-2 on the loans 1,12,080 1992 to 1996 advanced to her relatives
5. Amount received by A-2 from K.N. 85,000 30.06.1993 Dixit vide draft No.968914 dated 30.06.1993
6. Gifts by close relatives to daughter of 1,23,000 1994-95 A-1 and A-2 vide five gift deeds.
TOTAL 8,75,160 Grant Total of aforenoted Income/receipts of A-1 and A-2 as found by the court 8,59,354/- (Chart-1A) + 8,75,160/- (Chart-1B) = Rs. 17,34,514/-
112. Details of expenditure as found by this court is as under:
Chart-1C S No. Particulars Amount (in Rs) 1 School expenses of Baby Shiny Dixit D/o A.K Dixit at Manav 9,800/-
Sathli School, 37, Pusha Road, New Delhi.
2 Payment made to LIC in policy no.110746868 in the name of 22,249/-
A.K. Dixit @ Rs.3178.40 per year from the period from 28.3.92 to August 1996.
3 Payment made to MTNL against telephone No.5764601 6,411/-
installed at 26/8, Old Rajinder Nagar, New Delhi 4 Income Tax paid by Smt.Seema Dixit W/o Sh.A.K.Dixit during 394/-
check period.
5 Payment made to M/s Deepti Enterprises, 2, Janta Market, 950/-
Jhandewalan Extn. New Delhi for gas connection no.PE8838 6 Payment made to M/s Jeevan Medical Center(P) Ltd, 2-B, 3,930/-
Pusha Road, New Delhi vide Bill No.2914 dated 6.6.96. 7 Payment made to M/s B.Seth Jessa Ram & Bros. Cheritable 98/-
Hospital, WEA, Karol Bagh, New Delhi vide Bill No.19370 dated 26.7.96.
8 Payment made to M/s Khanna Jewelers (P) Ltd. Karol Bagh, 63,400/-
New Delhi vide receipt no.8446 dated 16.2.96 against Bill No. 5243 dated 13.1.96.
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CBI vs A.D.Dixit & Anr.
9 Payment made to M/s India Radio and Electric Corporation, 23,250/-
13/9, WEA, Ajmal Khan Road, New Delhi
10 Loan repaid to M/s Shelly Chit and Finance (P) Ltd. Hauz 70,000/- +
Quazi, Delhi vide Cheque No. 845092 dated 23.1.96 from SB 4,000/- Account No.8389 United Western Bank Ltd. Karol Bagh, New Delhi in the name of Smt. Seema Dixit and in cash.
11 Loan repaid to Smt. Vimlawati vide Cheque No.090209 dated 42,000/-
24.2.95 SB Account no. 12920, Central Bank of India, Chunna Mandi, Paharganj, Delhi by Smt.Seema Dixit.
12 Loan repaid to Smt.Vimlawati vide cheque no.246738 dated 22,000/-
28.2.95, Canara Bank, Karol Bagh, New Delhi from the account of Sh. A.K.Dixit A/C No. 12453.
13 Loan repaid to Smt.Vimlawati vide cheque no.909122 dated 40,000/-
28.2.95 from A/C No.15058, Canara Bank, Arya Samaj Road, Karol Bagh, New Delhi by Smt.Seema Dixit.
14 Expenditure incurred as locker rent of locker no.111, 1,245/-
maintained at Central Bank of India, Chunna Mandi, Paharganj, Delhi.
15 Total expenditure @ 30% of the carry home salary from 1,10,798/-
28.8.88 to 23.8.96 amounting Rs.3,69,328/-
Total 4,20,525/-
113. Details of assets as found by this court in tabulated form is as under:
Chart-1D S No. Particulars Amount (in Rs) Immovable Assets 1 Basement of Property No. 26/8, Old Rajinder 1,50,000/-
Nagar, New Delhi as per evaluation report of Sh. N.K. Jain, JE (civil), CBI, New Delhi 2 First Floor of Property No. 26/8, Old Rajinder 1,85,000/-
Nagar, New Delhi (1/2 portion purchased in the name of Smt. Seema Dixit as per evaluation report of Sh. N.K. Jain, JE (civil), CBI, New Delhi 3 Plot at Industrial Area Murthal (Sonepat) 1,25,000/-
Haryana, as per sale/purchase documents 4 Payment made vide cheque No.84500 20,000/-
Dt.8.12.95 from the account of Smt. Seema Dixit maintained at United Western Bank Ltd.
Karol Bagh, New Delhi, SB A/c No.8389
Total 4,80,000/-
Movable Assets
Chart-1E
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CBI vs A.D.Dixit & Anr.
1 House-hold articles as per observation memo 1,04,475/-
2 VI years National Saving Certificates, 5,000/-
Dt.17.3.94 in the name of A.K.Dixit
3 Investment in UTI Rai Laxmi Certificate 10,000/-
Dt.16.12.92,in the name of Asmita D/o A.K.Dixit
4 IDBI deep discount bond in the Name of Shiny 10,600/-
Dixit D/o A.K.Dixit
5 Money multiplier Deposit Scheme Certificate 11,419/-
Dt.20.12.95, in the name of Ajay Kumar Dixit &
Seema Dixit
6 Balance in S/B Account No. 8389 in United 16,060/-
Western Bank Ltd, Karol Bagh, New Delhi in
the name of Smt. Seema Dixit
7 Balance in S/B Account No. 1879 in Citizen 901/-
Coop.Bank Ltd, Desh Bandhu Gupta Road,
Paharganj, Delhi in the name of Smt. Seema
Dixit and Ajay Kumar Dixit.
8 Balance in S/B Account No. 3834 in State Bank 26,157/-
of India, Town Hall, Delhi in the name of
Sh.A.K. Dixit.
9 Balance in S/B Account No. 12453 in Canara 1,183/-
Bank Ltd, Karol Bagh, New Delhi in the name
of A.K.Dixit as on 23.8.96.
10 Balance in S/B Account No. 15055 in Canara 835/-
Bank Ltd, Karol Bagh, New Delhi in the name
of Seema Dixit.
11 Balance in S/B Account No. 1384 in Central 1,019/-
Bank of India, Chuna Mandi, Paharganj, Delhi
in the name of Seema Dixit as on 23.8.96.
Total 1,87,649
Grand Total (4,80,000+1,87,649) 6,67,649
114. Assets/pecuniary resources minus savings equals disproportionate assets or in other words, unexplained assets would be Total assets and Total expenditure as found by this court subtracted from the total income and receipts of A-1 and A-2. To conclude, as a result of the above discussion the final position as proved on record is as follows:-
(a) Income/receipts of A1 and A2 = Rs. 17,34,514/-
(b) Expenditure during the check period = Rs.4,20,525/-
(c) Savings = Income - Expenditure = Rs.13,13,989/-
(d) Assets at the end of check period = Rs.6,67,649/-
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CBI vs A.D.Dixit & Anr.
In the present case, this court finds that savings are much more than the assets meaning thereby there are no disproportionate assets of A.K.Dixit.
115. To conclude, this court finds that prosecution has failed to establish beyond reasonable doubt that accused A.K. Dixit was found in possession of assets disproportionate to his known source income during the check period i.e. 25th August 1988 to 23rd August 1996. Therefore, accused cannot be held guilty for the offence U/S Section 13 (1)(e) r/w 13(2) of POC Act, 1988. Prosecution has further failed to establish that Seema Dixit (A-2) abetted in any manner in commission of the offence of criminal misconduct by accused A.K. Dixit (A-1). Prosecution has also failed to establish beyond reasonable doubt the ingredients of Section 11 of POC Act against A.K. Dixit (A-1). In the result, prosecution having failed to establish charges against accused persons namely A.K.Dixit (A-1) and Seema Dixit (A-2), they are hereby acquitted of the charges against them in this case. Their previous bail bonds stand canceled and sureties are discharged. Accused persons are directed to furnish fresh personal bonds along with surety bonds in the sum of Rs.50,000/- each required U/S 437A of the Code of Criminal Procedure. While parting, this court appreciates the assistance provided to the court in this case by Sh.Surender Sinha, Learned Special Public Prosecutor as well as Sh.Mohd.Nasir, Ld defence counsel. File be consigned to Record Room.
Announced in the open court VINAY KUMAR KHANNA
on 14th January, 2016 Special Judge-CBI (PC Act)-06
THC/Delhi
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