Delhi District Court
Cbi vs C.S. Khairwal Etc on 3 August, 2024
IN THE COURT OF SH. PRASHANT KUMAR
SPECIAL JUDGE (PC ACT) (CBI)-07
ROUSE AVENUE COURTS : NEW DELHI
CNR No. DLCT11-000875-2019
(Old CNR No. DLCT01-000046-2001)
CC No. 180/2019
(Old CC No. 532162/2016)
RC No. 12(A)/1996/CBI/ACB/ND
A-1 C.S. KHAIRWAL
S/o Birbal Khairwal
R/o - D-178, Ravinder Nagar,
New Delhi.
CBI Vs. A-2 SUNIL KHAIRWAL
S/o C. S. Khairwal
R/o - D-178, Ravinder Nagar,
New Delhi.
A-3 K.C. SHARMA
(Abated vide order dated
06.06.2003)
Date of institution : 25.04.1998
Judgment Reserved on : 20.07.2024
Date of Judgment : 03.08.2024
Memo of Appearance:
Sh. A. K. Kushwaha, Ld. Sr. PP for CBI.
Sh. D. S. Kohli, Ld. Counsels for C. S. Khairwal (A-1).
Dr. Sushil Kumar Gupta, Ld. Counsel for accused No.2.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 1 of 309
JUDGMENT
PROSECUTION VERSION
1. The present case FIR was registered on 17.2.1996 against C.S. Khairwal (A-1) alleging that he had been indulged in corrupt practices and had amassed huge movable and immovable assets which were disproportionate to his known sources. During the period from July, 1974 to February, 1996 he had received Rs.12 lakhs approximately as salary from the government and had acquired huge movable and immovable properties to the extent of Rs.1.92 Crores either in his name or in benami in the name of his family members, mentioning six properties such as(i) House No. F- 85, East of Kailash, New Delhi; (ii) MIG Flat at Munirka bearing No. BF/4; (iii) House No. T-13, Village Khirki Extension, Malviya Nagar; (iv) DDA Flat No. 34, Gautam Apartment, New Delhi; (v) Departmental Store styled in the name of ABSU MANSO at village Kishan Garh; and (vi) two room set at village Mau Ibrahim Pur, Rajasthan besides other movable assets in the form of bank balance, two vehicles, costly equipments and gadgets either in his name or in the name of his family members.
2. It is revealed during investigation that C.S. Khairwal (A-1) joined as IAS on 17.07.1974 and he is native of village Ibrahim Pur, Tehsil Hindon, Sawai Madhupur, Rajasthan. Investigation further revealed that Sh. Mohan Lal, grand father of C.S. Khairwal (A-1) had no independent source of income and working as looking after cattle/animals of some families in his village. He had four sons namely Hukam Singh, Bhorilal, Bihari and Birbal (father of A-1).
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 2 of 309Landholding of Birbal (father of A-1) was very meager and income derived from agricultural which was directly dependent on rainfall. His sons had a share of approximately 1.65 bighas in land holdings.
3. The investigation further revealed that Birbal had two daughters and three sons including C. S. Khairwal (A-1) and that Kampoori Devi is the eldest sister of C. S. Khairwal (A-1) married to Roopram of Bharatpur having two sons and her husband earlier used to sell bangles by roaming in villages and later on appointed as Chowkidar in Public Health Engineering Department at Bharatpur, Rajasthan and after his death in 1993, Kampoori Devi appointed as a daily wager on compassionate ground. The investigation further revealed that other sister of C.S. Khairwal (A-
1), Tulsa Devi was married to Prabhu Dayal of village Lotware, District Jaipur having three sons, who used to help his father-in-
law Birbal in selling vegetables on a platform at Nauroji Nagar, New Delhi. The investigation further revealed that Panna Lal, brother of C. S. Khairwal (A-1) used to assist his father in selling vegetables and later on started selling vegetables at Sector-12, R. K. Puram, New Delhi, however, on induction of C.S. Khairwal (A-
1) in IAS, he was acting as a tout for his brother especially during the period of posting in Transport Department of Govt. of NCT and another brother of C.S. Khairwal (A-1) was working as Assistant with Delhi State Civil Supplies Corporation where he had come on deputation from Rajasthan Industrial Corporation. The investigation further revealed that family of C.S. Khairwal (A-1) CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 3 of 309
was having meager land holding having no substantial yield. The investigation also revealed that C.S. Khairwal (A-1) was married to Anu Devi @ Angoori Devi daughter of Chhote Lal, Resident of village Todabhim and having two daughters namely Sunita and Manju and one son accused Sunil Khairwal (A-2).
4. The investigation revealed that from 16.07.1974 to 18.02.1996, i.e. the check period, C.S. Khairwal (A-1) has amassed disproportionate assets to his known sources of income and in order to conceal the acquired assets, he entered into a criminal conspiracy with Sunil Khairwal (A-2) and K.C.Sharma (A-3) (since deceased) and others falsely shown/acquired/ transferred properties in their names and in the names of other persons, whereas they had no independent sources of income and also committed forgery/falsification of documents to cover up the ill gotten investments.
5. The investigation revealed the postings details of C. S. Khairwal (A-1) and calculated his salary details from income as Rs.5,51,156/- as under:-
INCOME Net Income from Salary of C. S. Khairwal (A-1) for the period 17.7.1974 to Feb. 1996.
Sr. Period Place of Posting Amount No. 1 17.7.74 to 3.4.75 IAS Probationer At LBS 7067.35 Academy of Adm. CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors. Page No. 4 of 309 2 3.4.75 to 3.7.76 IInd Phase of Professional 19,341.75 Course 3 3.7.76 to 13.4.78 O/o Dy. Commissioner, Delhi 16,134.30 Admn. 4 14.4.78 to 8.3.79 Jt. Director in Tpt. Delhi Admn. 10,235.70 5 9.3.79 to 31.7.79 Dy. Secy. Education, Delhi 4562.10 Admn. 6 1.8.79 to 30.4.79 Dy. Commn. Andaman & 13,040.00 Nicobar 7 1.5.80 to 29.6.80 Spl. Asstt. to Minister of State 1818.70 for Finance 8. 20.6.80 to Spl. Asstt. to CM Rajasthan 15,030.50 15.7.81 9. 16.7.81 to 7.9.81 Jt. Secy. in Delhi Admn. 2,465.45 10. 8.9.81 to Director, DDA 9,862.70 31.12.81 11. 1.1.82 to 26.9.83 Project Director DRDA N. Delhi 33,855.00 12. 26.9.83 to Director Tpt., Delhi Admn. 57,413.35 31.1.86 13. 1.2.86 to 4.7.86 Director DRDA 11,604.20 14. 5.7.86 to Secy. (Education), Arunachal 74,080.20 10.10.88 Pradesh Govt. 15. 11.10.88 to 1.1.89 Director (UTCS), Trg. Delhi 5,312.00 Admn. 16. 2.1.89 to 11.11.90 Secy. (Services) Delhi Admn. 46,161.00 17. 12.11.90 to Commissioner Cum Secy, Local 5,942.00 31.12.90 Self Govt/Land Bldg. CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors. Page No. 5 of 309 18. 1.1.91 to 15.3.92 -do- 44,961.00 19. 16.3.92 to 9.6.93 Commissioner cum Secy. Tpt. 26,475.00 Govt. of NCT, Delhi 20. 11.6.93 to 18.2.96 Jt. Secy. Ministry of Surface 14,5794.00 Transport Total 5,51,156.00
6. The investigation further revealed that besides this salary income, C. S. Khairwal (A-1) had also income of Rs.4,82,946 on account of the following:
Sl. No. Source Amount
1. By sale of flat at Munirka bearing No. BF/C 1,82,500.00
accrued to accused C. S. Khairwal
2. By CPF from Indian Oil Corporation accrued 3,100.00
to accused C. S. Khairwal.
3. By Dividends from Oswal Fertilizers & 843.56
Chemicals Ltd. accrued to accused C. S.
Kairwal.
4. By Income from Sangam Co-op. Society 19,350.00
accrued to accused C. S. Khairwal
5. By Income from sale of car accrued to accused 17,000.00
C. S. Khairwal
6. By Income from LIC Policy accrued to 14,300.00
accused C. S. Khairwal
7. By Income from rent from Munirka flat before 1,30,000.00
sale accrued to accused C. S. Khairwal
8. By income from interest on bank deposit & 1,15,853.0
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
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FDRs accrued to accused C. S. Khairwal
Total 4,82,946.00
7. Thus, total income of C. S. Khairwal (A-1) was calculated as Rs.10,34,102/- during the above said check period.
8. The investigation further revealed that Sunil Khairwal (A-2), who was born in 1970, has also shown income from various sources and when assets were alleged to be acquired by him, he was school/college going student having no independent source of income and C. S. Khairwal (A-1) in conspiracy with accused K.C.Sharma (A-3) (since deceased) and Sunil Khairwal (A-2), son of C. S. Khairwal (A-1) and others, created/got created various assets in their names as benami and income accrued thereof has been taken as income of C. S. Khairwal (A-1) through Sunil Khairwal (A-2) and accused K.C.Sharma (A-3) (since deceased), respectively.
9. The investigation further revealed that Sunil Khairwal (A-2) earned income of Rs.8,90,086/- by way of rental income from property situated at F-85, East of Kailash from February, 1980 to March, 1991; April 1991 to March 1994 and from December, 1995 to January, 1996. This palatial building was constructed from the investment of C. S. Khairwal (A-1) which was rented out to M/s Atash Industry, Noida, World Health Organization, New Delhi and J.C.T. Ltd. and Sunil Khairwal (A-2) netted an income of CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 7 of 309
Rs.1,04,221/- from fixed deposits/savings accounts maintained by him mostly in Oriental Bank of Commerce, Safdarjung Enclave, SBI, CGO Complex etc.
10.The investigation further revealed that C. S. Khairwal (A-1) had obtained a factory premises in the name of his daughter (who was a school going child) on lease from Commissioner of Industry Delhi at Jhandewalan bearing Flat no. C-11 and three income tax returns showing income of Rs.20,675/-, Rs.18,230/- and Rs.31,755/- totaling Rs.70,660/- during the assessment years 1987-1988; 1988- 1989 and 1989-1990 were also filed.
11.The investigation further revealed that Sunil Khairwal (A-2) had claimed agricultural income to the tune of Rs.4,72,690/- for the year 1994-95, Rs.1,40,000/- for the year 1993-94, mostly on account of land purchased at Asola, New Delhi and at village Kyarada Khurd, Tehsil Hindon, Rajasthan. The investigation also revealed that land at Asola was purchased by his father C. S. Khairwal (A-1) having area of 2.5 Acres and figures relating to agricultural income from land at Asola were manipulated as receipts were printed from printing press of his close associate to cover up the ill gotten money and in fact there was no such agricultural income. Moreover, the girdawari of the land at village Kyarda showed only crop worth Rs.1,200/- could be yield from this land and as such no benefit for agricultural income has been given to Sunil Khairwal (A-2). Thus, following income of Rs. 10,64,967/- was taken as income of Sunil Khairwal (A-2) on the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 8 of 309basis of above investigation:
Sl. No. Source Amount
1. By Income from rental of F-85, East of 8,90,086.00 Kailash, N. Delhi from Feb. 89 to March 91, April 91 to March 94 and from December 95 to January 96 (received from M/s Atash Industries, WHO and JCT, New Delhi) accrued to Sh. Sunil Khairwal on account of investment made by Sh. C.S. Khairwal.
2. By Income from bank interest on fixed 1,04,221.00 deposits as well as saving accounts maintained at OBC, Safdarjung Enclave and SBI CGO Complex, Lodhi Road accrued to Sh. Sunil Khairwal on account of investment made by Sh. C. S. Khairwal.
3. By Income accrued to Sh. Sunil 70660.00 Khairwal on account of M/s Sunit Enterprises as reflected in Income Tax Returns of this firm for the year 1986- 88, 1988-89 and 1989-90.
Total Income of A-2 Sunil Khairwal 10,64,967.00
12. The investigation further revealed that Anu Khairwal wife of C. S. Khairwal (A-1) was illiterate house wife having no substantial property/ income from her father's house, however, during the check period her source of income reveled as FDRs and income from sale of 100 sq. yards plot, details of which are as under:
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
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Sl. No. Source Amount
1 By income accrued to Smt. Anu 38254.00
Khairwal by ways of interest on FDRs
and bank accounts
2 By income accrued to Smt. Anu 275000.00
Khairwal by way of sale of plot at
village Khirki
Total Income of Smt. Anu Khairwal 3,13,254.00
13.The investigation revealed that Manju Khairwal daughter of C. S. Khairwal (A-1) born in the year 1972 was minor when assets were acquired and following income from investment made in her name by C.S. Khairwal (A-1):
Sl. No. Source Amount
1 By income accrued to Ms. Manju 25,731.00
Khairwal on account of FDRs and
interest
2 By income accrued to Ms. Manju 60,000.00
Khairwal on account of fixtures of F-
85, East of Kailash, New Delhi
3 By income accrued to Ms. Manju 22,400.00
Khairwal on account of rental of flat
No. 210, UNA Coop. Society
Total Income of Manju Khairwal 1,08,131.00
14.The investigation further revealed that C. S. Khairwal (A-1) had developed close relations with one Abha Tyagi and she shifted to CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 10 of 309flat No. 34, Gautam Apartments, Gautam Nagar, New Delhi alleged to be in the name of father of C. S. Khairwal (A-1), a benami property acquired by C. S. Khairwal (A-1) and during the search various incriminating documents were recovered and it was revealed that father of Abha Tyagi namely accused K.C.Sharma (A-
3) (since deceased) in criminal conspiracy with C. S. Khairwal (A-
1) kept various properties of C. S. Khairwal (A-1) in his own name to cover up the ill gotten money though he had no substantial sources of income being retired as a teacher hence following income was shown to him:
Sl. No. Source Amount 1 By income accrued to Sh. K. C. 2,50,000.00 Sharma from rent of E-286, Greater Kailash Part-I in which investment was made by Sh. C. S. Khairwal.
2 By Income accruing to Sh. K. C. 1,54,600.00 Sharma as commission from Suraj Automobiles 3 By Income accruing to Sh. K. C. 2,565.00 Sharma on saving bank accounts.
(as shown in the charge-sheet) Total Income of K. C. Sharma 4,07,165.00
15.The investigation further revealed Birbal Khairwal, father of C. S. Khairwal (A-1) filed income tax returns in respect of sales of vegetables for the assessment years 1984-85; 1985-86; 1986-87;
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 11 of 3091987-88 showing total income of Rs.1,44,305/- and the same was allowed.
16.After investigation total income of C. S. Khairwal (A-1) and others was computed as under in the charge sheet:
1. Sh. C. S. Khairwal 10,34,102/-
2. Sh. Sunil Khairwal 10,64,967/-
3. Smt. Anu Khairwal 3,13,254/-
4. Smt. Manju Khairwal 1,08,131/-
5. Sh. K.C.Sharma (A-3) (since deceased) 4,07,165/-
6. Sh. Birbal Khairwal 1,44,305/-
Total Income 30,71,924/-
EXPENSES
17.The further investigation revealed that a total amount of Rs.17,19,583/- was incurred during the check period, mainly by C. S. Khairwal (A-1) and his son Sunil Khairwal (A-2) and further a sum of Rs.17,155/- each were incurred by C. S. Khairwal (A-1) through Sunil Khairwal (A-2) and Anu Khairwal for registration charges for purchase of land vide sale deed dated 10.02.1993 at village Kyarda Kalan, Tehsil Hindon; Rs.13,252/- towards registration of land purchased by C. S. Khairwal (A-1) in the name of Shiboo vide registered sale deed dated 3.8.1994 at Tehsil Hindon, Rajasthan; an amount of Rs.13,177/- for sale deed dated CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 12 of 309
21.09.93 purchased in the name of Hukam Singh followed by incurring Rs.5,800/- for registration of sale deed dated 7.10.1992 in favour of Sunil Khairwal (A-2) and an amount of Rs.96,170/-
incurred by Sunil Khairwal (A-2) for purchasing land at village Asola, Tehsil Mehrauli, New Delhi though value of the property was kept low at Rs.19.80 lacs instead of actual payment of Rs.49 lacs.
18. The investigation further revealed expenses of an amount of Rs.12,257/- were paid as interest on loan of Rs.75,000/- taken from PNB, Karol Bagh, New Delhi and Rs.8,690/- were incurred by C. S. Khairwal (A-1) relating to membership of South Delhi Club, followed by Rs.5,500/- for Siri Fort Club, New Delhi. The investigation further revealed expenses of Rs.55,257/- on Birbal Gifts Pvt. Ltd. in the name of his father and payment of Rs.15,366/- to Oriental Bank of Commerce on account of outstanding amount of the loan taken by father of C. S. Khairwal (A-1) after his death and telephone charges of Rs.16,248/- for telephone no. 4628603 installed at his residence, Rs.1,14,458/- toward rent for Flat No. C- 11, Factory Area, Jhandewalan and Rs.42,510/- paid for telephone no. 6896176 installed at 11/79, Village Kishangarh in the name of Sunil Khairwal (A-2) and Rs.24,637/- incurred on telephone no. 6865704 installed at 34, Gautam Apartments in the name of sister of the accused by C. S. Khairwal (A-1) who was mostly residing there.
19. The investigation further disclosed expenses of an amount of CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 13 of 309Rs.72,677/- incurred on the marriage of his daughter by C. S. Khairwal (A-1) in February, 1992 through purchases made from Customs Department and further expenses of Rs.1,83,702/- on the above mentioned marriage and Rs.26,172/- incurred on credit cards issued in the name of C.S.Khairwal (A-1) and Rs.26,700/- paid as expenses by way of interest on the CC/Over Draft limit of M/s Sunita Enterprises at UCO Bank, High Court, Delhi and Rs.81,362/- were paid as interest for CC facility of M/s Sunita Enterprises and Rs.7,000/- incurred towards chowkidar charges for looking after the land at village Kyarda Kalan; expenses of Rs.40,000/- and Rs.79,163/- towards house tax for F-85, East of Kailash, New Delhi; expenses of Rs.1,450/- towards registration charges for vehicle bearing no. DL 2CC 3080. The investigation further disclosed expenses of Rs.50,000/- also incurred in the marriage of his daughter and Rs.1,08,460/- incurred on the gold ornaments for the marriage by C.S.Khairwal (A-1).
20. The investigation further assumed expenses of Rs.38,400/- as his pocket expenses during the check period by C.S.Khairwal (A-1) and Rs.43,561/- for clothing of his family members during the check period. Investigation also revealed that Rs.85,507/- was paid by C.S.Khairwal (A-1) to NDMC as water and electricity charges in respect of D-1/78, Ravinder Nagar, the official residence and expenses of his daughter Manju Khairwal, who visited abroad during February, 1994 incurring Rs.62,000/- on her foreign travel. Rs.1,18,881/- was taken as expenditure on account of 33% of the take home salary of C.S.Khairwal (A-1) towards unverifiable CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 14 of 309expenses during the check period.
Sl. Nature of expenses amount
No.
1 To expenses for registration of sale deed -Sunil 17,155.80
Khairwal (A-2) 10.2.93 at Kyonda Kalan
2 To expenses for registration of sale deed- Anu 17,155.80
Khairwal
3 To expenses for registration of sale deed- Shiboo 13,252.00
Ram dt. 3.8.94
4 To expenses for registration of sale deed Hukam 13,177.00
Singh dt. 21.9.93
5 To expenses for registration of sale deed dt. 5,800.00
7.10.92 registration in the name of Sunil
Khairwal (A-2)
6 To expenses for registration of land at Asola Vill. 96,170.00
registration In the name of MMG Enterprises owned by Sunil Khairwal 7 To expenses for registration of E-286, GK-I, 1,58,400.00 New Delhi registration In the name of 10 different persons.
8 By expenses on loan of Rs. 75,000 from PNB 12,257.00 Karol Bagh against FD of Rs. 1,00,000 paid by C. S. Khairwal 9 By expenses to Membership No. N-603, South 8,690.00 Delhi Club, New Delhi by C. S. Khairwal (A-1) 10 By expenses to Membership of Siri Fort Club 5,500.00 paid by C. S. Khairwal (A-1) 11 Expenses of Birbal gifts Pvt. Ltd. 55,257.00 12 Loan of Birbal adjusted after death of Birbal 15,366.00 CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 15 of 30913 By telephone bill 4628603 at D-1/78, Ravinder 16,248.00 Nagar 14 By expenses towards rent of Flat No. C-11 1,14,458.00 Factory premises Jhandewalan, New Delhi 15 By expenses towards the payment of Telephone 42,510.00 Bill No. 6896176 by Sunil Khairwal (A-2) 16 By expenses by K. C. Sharma against Telephone 2,299.00 Bill No. 98968345 17 By expenses made by K. C. Sharma in r/o 26,217.00 Telephone Bill No. 68968435 18 By expenses made in r/o Telephone No. 6865704 24,637.00 by Kampori Devi 19 By expenses of marriage of Sunita towards 72,677.00 purchase of items from Customs Deptt.
20 By expenses of marriage of Sunita Khairwal 1,83,702.00 21 By expenses of Credit Cards 4937149011086001 26,172.00 & 540610001714701 22 By expenses from overdraft of M/s Sunita 26,700.00 Enterprises at UCO Bank High Court 23 By loan expenditure of the CC limit facility of 81,362.00 Sunita Enterprises 24 By expenditure of labour/chowkidar at Village 7,000.00 25 By House Tax of F-85, East of Kailash 40,000.00 26 By Registration Charges for DL2 CC 3080 1,450.00 27 Unverified expenses on marriage 50,000.00 28 Expenses on cloth 43,561.00 29 Pocket Expenses 38,400.00 CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 16 of 30930 33% of carry home salary 1,18,881.00 31 Expenses on jewellery on marriage of daughter 1,08,460.00 32 Expenses on construction of boundary wall at 50,000.00 Chhattarpur 33 Electric expenses for D-1/78, Ravinder Nagar, 85,507.00 New Delhi 34 Expenses of House Tax at F-85, East of Kailash 79,163.00 35 Expenses on Foreign Travel of Ms. Manju 62,000.00 Khairwal in Feb. 94.
Total 17,19,583.00
ASSETS
21.The investigation further disclosed that a sum of Rs.2,38,53,675/- was invested by C. S. Khairwal (A-1) in acquisition of 25 immovable assets purchased by him in his name or in the name of other accused or in the name of close family members during the check period are as under:
Sl. Proper Date of Purchased in Actual Seller's amount No. Details purchase the name of Purchaser Name
1. Plot No. 25, 19.6.81 C. S. C.S. Khairwal M/s 4,155 Devi Khairwal (A-1) Topkhana Charanjeev Greh (A-1) Colony Nirman Topkhana Society Greh Nirman Society Hatoi road, 350 sq. yards CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 17 of 309
2. Plot No. F- 19.8.85 Birbal -do- Raman 3,36,000 85, East of Khairwal on Khanna Kailash POA Adv. Jaipur 355 sq. yds.
3. House at F- Base, Ist, Birbal -do- -do- 27,21,000 85, East of 4F, 1987- Khairwal/ Kailash 91 Sunil Khairwal (A-
2nd story
2) 1994-95
4. Land at 10.2.93 Sunil -do- Kirodi s/o 1,65,000 Khasra No. Khairwal (A- Goli r/o 727, 0.40 2) Kyarda Barani at Khurd vill Kyarda Khurd, The.
Hindon
5. Land at 727, 15.2.93 Anu Khairwal -do- -do- 1,65,000 0.50 Barami at Vill.
Kyarda Khurd, The.
Hindon
6. Compound 1993-94 C. S. -do- -do- 5,32,957 Wall, Pump, Khairwal (A-
Patawars, 1) Tubewell Stones etc. Sl. No. 5 & Sl. No. 4 7. 5 shops at -do- -do- 4,62,928 Mau -Khas, 8. Samadhi in -do- 1,32,682 memory of Late Sh. Birbal CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors. Page No. 18 of 309 9. 4.38 3.8.94 Shiboo ram -do- Ram 91,000 Hectares of s/o Chimoli Charan r/o land Mau Ram Mau Ibrahim Pur, Ibrahim The. Pur. Hindon (Kh. 827- 837) 10. 5 Bishwas 12.9.88 C. S. -do- Raj Kumar 2,30,000 (230 sq. yds Khairwal (A- of land at T- 1) 13, Malviya Nagar, N. Delhi 11. E-286, GK-I, New Delhi 1/10 part 13.1.93 Sunil Kumar C. S. Khairwal D. P. Jain 63,00,000 s/o Charan (A-1) Singh 1/10 part 15.1.93 Mukti Devi -do- -do- s/o Hukam Chand 1/10 part 8.1.93 Yashpal s/o -do- -do- Roop Ram 1/10 part 13.1.93 Kampoori -do- Shashi Jain Devi w/o Roop Ram 1/10 part 8.1.93 K. C. Sharma -do- Shashi Jain s/o H. C. Sharma 1/10 part 8.1.93 Santara Devi -do- P. P. Jain w/o Panna Lal 1/10 part 13.1.93 Satish w/o -do- Shashi Jain Hari Ram CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors. Page No. 19 of 309 1/10 part 13.1.93 Hukum Singh -do- D. P. Jain s/o Mau Lal 1/10 part 15.1.93 Bheri Lal s/o -do- Shashi Jain Mau Lal 1/10th 13.1.93 Tulsa Devi -do- Shashi Jain w/o Prabhu Dayal 12. 247 Barani 7.10.92 Bharuai, Sunil 46400 Land at Hukam & Khairwal (A- Mau Rampatti 2) Ibrahimpur 13. 725 sq. 22.10.92 Sunil C.S. Khairwal Sh. Vinod 1,00,000 yards of Khairwal (A- (A-1) Kumar land at Neb 2) Sharma Sarai Mehraulli plot no., K- 225/C, Sainik Farm 14. Boundary 22.10.92 -do- -do- 1,50,000 wall & two room hutment at plot no. K- 225/C, Sainik Vihar 15. One Plot 25.6.85/ Narayani Devi -do- Sardar 50,000 measuring w/o Birbal Singh 8.2.91/ 625 sq. yds Kh. No. 28.2.91 1675 Vill. Kishangarh Vasant Kunj, New Delhi CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors. Page No. 20 of 309 16. Pathway to 11.11.92 K. C. Sharma -do- Tek Chand 1,00,000 plot 625, sq. to Abha Tyagi MLA yards Khasra No. 1675 Vill. Kishangarh 17. Building Year -do- -do- Tech. 41,22,000 constructed 1991 Refers new partly demolished at plot no. 1675 18. Flat No. 21.8.94 Sunil -do- ------- 820502 2298, Sec. Khairwal (A- 1.12.95 B Pocket 2) transferred 243, Vasant to Sudesh Kunj Seth 19. Flat No. 210 5.9.90 Manju -do- O. P. 2,52,708 B, UNA Co- onwards Khairwal Pathak & J. operative 20.6.93 R. Sharma Hsg. of M/.s Society UNA Co- op. Hsg. Society 20. Farm House 7.5.93 MMG Agro -do- I. A. 49,00,000 No. B-5, Malkhani Asola Vill. Jawahar Chattarpur Lal (As per value of documents 495000.00) CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors. Page No. 21 of 309 21. Boundary 1993 -do- 12,36,107 wall of onwards House at Vill. Asola 22. 34 Gautam 15.12.81 Birbal -do- 2,78,000 # SFS DDA transferred to Kampoori 23. Flat at 11.3.94 Ram Swaroop -do- 3,70,000 Puneet Sunita Housing Co-op. Society, Mayur Vihar fittings in 2,32,072 Flat 34, Gautam # SFS DDA 25. 500 sq. yds. 17.6.92 K. C. Sharma -do- D. S. 55,000 of plot on POA Chauhan Quila No. 25/1 Vill. Kishangarh, Vasant Kunj, N. Delhi Total : 2,38,53,675
22.The further investigation revealed that plot of 350 sq. yards bearing No.25, Devi Charanjev Colony Grahnirman, Ajhmer Road, Jaipur was purchased by C. S. Khairwal (A-1) in his own name on 19.06.1981; plot of land F-85, East of Kailash measuring 355 sq. yards was purchased in the name of his father by C. S. Khairwal CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 22 of 309(A-1) for Rs. 3.36 lacs in criminal conspiracy and later on shown that father of C. S. Khairwal (A-1) transferred his rights to A-2 by way of will dated 17.09.1987 and C. S. Khairwal (A-1) invested an amount of Rs.27.21 lacs on the construction of basement and first floor during the year 1987-91 and further constructed two more stories and technical evaluation of the building was also done. The investigation further revealed that Rs.1,65,000/- each was invested for purchase of two plots in the name of Sunil Khairwal (A-2) and Anu Khairwal at village Kyarda Khurd, Tehshil Hindon vide sale deeds dated 10.2.1991 and 15.2.1993 and as per evaluation Rs.5,32,957/- were invested by C. S. Khairwal (A-1) on construction concrete stone compound wall, pump, railing, installation of tube well, patwars etc. during the year 1993-94.
23.The investigation further revealed that an amount of Rs.4,62,928/-
was invested by C. S. Khairwal (A-1) on construction of five shops at Mau Khas, Tehsil Hindon and Rs.1,32,682/- was invested on the construction of Samdhi in memory of his father by C. S. Khairwal (A-1) at his native place and further that land measuring 4.38 hectares was purchased by C. S. Khairwal (A-1) in the name of Shibooram s/o Chameli Ram from Ram Charan resident of Mau Ibrahimpur, Tehsil Hindon as Shibooram and his son Govind Khairwal denied having purchased this land. The investigation further revealed that C. S. Khairwal (A-1) purchased five bighas land at T-13, Malviya Nagar, Delhi for Rs. 2,30,000/- in his name out of which 50% was sold by him through documents to his wife Anu Khairwal. The investigation further revealed that E-286, CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 23 of 309Greater Kailash-I, New Delhi was purchased by C. S. Khairwal (A-
1) in January, 1993 in the name of 10 different persons for an actual amount of Rs. 63 lacs while showing in documents as only Rs. 19.80 Lakhs, i.e. in the name of Sunil Khairwal (A-2) and other close relatives and forged documents/affidavits under Urban Land Ceiling act were filed before Sub Registrar, New Delhi for the purpose of effecting registration of sale and in order to avoid income tax clearance certificate and during investigation Rajesh Jain and others involved in the purchase of land also surrendered Rs.14 lacs which was un-utilized and that C. S. Khairwal (A-1) had purchased this house and shifted his telephone number 6437197, which was functional there. The investigation further revealed that land purchased by Birbal Khairwal from Bhoria, Hukum and Rampati on 07.10.1992 for an amount of Rs.46,400/- vide sale deed dated 07.10.1992 at Tehshil Hindon, Rajasthan who are stated to be relatives of C. S. Khairwal (A-1) and two of them are also shown as purchaser of H. No. 286, Greater Kailash-I, New Delhi.
24.The investigation has further revealed that 725 sq. yards of land at K-225/C, Sainik Farm, New Delhi was purchased by C. S. Khairwal (A-1) in the name of his son Sunil Khairwal (A-2) from Vinod Kumar Sharma for Rs.1,00,000/- Lakhs and this was given by C. S. Khairwal (A-1) as loan to Vinod Kumar Sharma and was made to sign documents showing transfer of property to his son Sunil Khairwal (A-2) and he further invested Rs.1.50 lakhs on the construction of boundary wall etc. of the farm house. The investigation further revealed that plot measuring 625 sq. yards of CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 24 of 309land at Khasra No. 1675 Village Kishangarh, Vasant Kunj, New Delhi was purchased from Sh. Sardar Singh in the name of Naraini Devi, mother of C. S. Khairwal (A-1) for Rs.50,000/- on Power of Attorney dated 25.06.1985, who expired in June, 1987, however, a Power of Attorney was created on 08.02.1991 through her in the name of accused K. C. Sharma (A-3) (since deceased) showing sale of property built on this plot and thereafter transferring it to Abha Tyagi on 28.02.1991 and obtained electric connection on the basis of forged affidavits.
25.The further investigation revealed that pathway to said plot at village Kishan Garh was purchased from Tek Chand Sharma by C. S. Khairwal (A-1) in the name of accused K. C. Sharma (A-3) (since deceased) for Rs.1 lakhs on 11.11.1992 and departmental store by the name of ABSU MANSO signifying was opened from ground floor of this building and technical evaluation has been shown as investment of Rs.41,22,000/- in the construction of the building.
26.The investigation further revealed that flat bearing no. 2298, Sector B, Pocket 2 & 3, Vasant Kunj was another benami property of C. S. Khairwal (A-1) booked by one Babu Lal Baswadia with DDA for initial payment of Rs.20,000/- and Rs.8,20,502/- were deposited by Sunil Khairwal (A-2) with DDA and he obtained power of attorney in his favour. The investigation further revealed that C. S. Khairwal (A-1) was instrumental in getting a Flat bearing no. 210, UNA Co- operative Group Housing Society at Mayur Vihar allotted to his CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 25 of 309unmarried daughter, who had no independent source of income in August, 1990 and paid Rs.2,52,708/- to the said society. Further investigation disclosed 2.5 acres of land was purchased by C. S. Khairwal (A-1) in the name of M/s M. M. G. Agros owned by Sunil Khairwal (A-2) and on documents it was paid for an amount of Rs.4,95,000/- on 07.05.1993, however, Rs.49 lakhs were invested in the purchase of the land and further technical inspection revealed that Rs.12,36,107/- had been incurred for the construction of boundary wall and laying underground water pipes etc.
27.The investigation further revealed that Flat at Gautam Apartment, bearing No. 34 which as per DDA record belongs to C. S. Khairwal (A-1) and on the basis of forged Will of father of C. S. Khairwal (A-1), this property was shown to have been bequeathed to Kampoori Devi, sister of A-1, and C. S. Khairwal (A-1) was staying there with Abha Tyagi and a sum of Rs.2,78,000/- was paid to DDA for acquisition from December, 1981 onwards and further that CFSL report also opined forgery of the Will and Rs.2,32,072/- were incurred on fittings and renovation of this plot as per the technical expert.
28.The investigation further revealed that C. S. Khairwal (A-1) made payment of Rs.3,70,000/- to Puneet Housing Society, Mayur Vihar, New Delhi in the name of Ramswaroop, his brother in law and part payment of Rs.2.70 lacs was made from M/s Samriti Market & Communications Ltd. functioning from E-286, Greater Kailash, benami property of C. S. Khairwal (A-1) in which mother of Abha CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 26 of 309Tyagi and wife of Sudesh Sethi were partners.
29.The investigation further revealed that C. S. Khairwal (A-1) had purchased plot of land on 17.6.1997 from D. S. Chauhan in village Kishangarh, Mehrauli for an amount of Rs.55,000/- and on the request of C. S. Khairwal (A-1), purchase was shown in the name of accused K. C. Sharma (A-3) (since deceased). The total immovable assets of C. S. Khairwal (A-1) revealed during the investigation were of Rs.2,38,53,675/-.
MOVABLE ASSETS
30.The investigation revealed that C. S. Khairwal (A-1), Sunil Khairwal (A-2) and K. C. Sharma (A-3) (since deceased) had movable assets to the tune of Rs.90,26,767/- details of which are as under:-
Sl. No. Place & person from whom found Amount
1. By Jewellery found at Locker at High 174900.00 Court UCO Bank N Delhi in the name of Anu Khairwal
2. By Jewellery found at house of C.S. 120000.00 Khairwal D-1/78, Ravinder Singh
3. By jewellery found/recovered 254900.00 belonging to C.S. Khairwal through K. L. Nagar
4. By cash recovered through K. L. 670000.00 Nagar
5. By cash recovered from 79/11 90000.00 Kishangarh CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 27 of 309
Total 13,09,800.00
31.The investigation also revealed that C. S. Khairwal (A-1) was having FDRs in Syndicate Bank and Vijaya Bank and bank accounts having Rs.2,83,741/- details of which are as under:
Sl. No. FDRs Name of Dt of Balance Interest
the Bank opening as on Income
18.2.97
1 By Syndicate 4.8.93 7000.00 Nil
VCC2030 Bank,
Parliament
Street
2 By -do- -do- 7000.00 Nil
VCC2029
3 By -do- 23.9.93 5000.00 Nil
VCC2123
4 By VCC -do- 16.11.95 37620.00 Nil
38691
5 VSU Vijaya 16.09.95 157275.00 107275.00
341081 Bank,
Defence
Colony
Total Rs. 2,13,895/-
By Balance in different Bank Accounts
A/c No. Name of Dt. of Balance Income
Bank opening as on through
18.2.97 interest
a) 20003 BOB 1.1.80 14624.00 2500.00
Parliament
Street
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
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b) 102197 Allahabad 23.4.91 275.85 91.00
Bank,
Con.
Circus
c) 7917A SBI Tis 15.10.77 1224.85 4092.00
Hazari
d) 5763 Vijaya 1.7.95 10660.79 332.00
Bank
Defence
Colony
e) 5045 Syndicate 22.6.93 5466.87 805.99
Bank
Parliament
f) 748 UCO Bank 79 2393.00 246.00
Rajpura onwards
Road
g) 642 SBBJ 1427.55 00.00
Jaipur
h) 3136 OBC 241.00 00.00
Azadpur
I) 212 BOB Mau 26.8.81 33536.00 512.00
Ibrahmpur
Total 69,846.00
Total in respect of Bank Balance FDRS : 2,83,741.00
32.The investigation also revealed that Sunil Khairwal (A-2) was having FDRs, Current Account in the name of M/s MMG Agro, saving bank account and PPF account and also opened 5 Saving Bank Accounts in the name of Madan Lal, Geeta Sabaria, Ram Swaroop, Mamta Baswadia and Soma Devi and deposited ill gotten CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 29 of 309
money of C. S. Khairwal (A-1) and thus was found in possession of FDRs and Bank balance to the tune of Rs.24,29,247/- details of which are as under:-
Sunil Bank & Income
Sl. Khairwal Date of
Name of Balance through
No. opening
FDR's No. Holder interest
OBC
a) CDR 6687 Safdarjung 22.8.94 253184.00 63184.00
Enclave
b) CDR 6688 -do- -do- 39355.00 9355.00
-do-
c) FDR 5052 25.12.95 330000.00 Nil
(MMG Agro)
-do-
d) SB 7007 (Mamta 23.12.95 100100.00 Nil
Baswalia)
-do-
e) SB 7008 -do- 150100.00 Nil
(Soma Devi)
-do-
f) SB 7005 -do- 100100.00 Nil
Geeta Sabaria
-do-
g) SB 7004 -do- 150100.00 Nil
Madan Lal
-do-
h) IB 7006 -do- 250100.00 Nil
Ram Swaroop
-do-
I) CA 1831 17.4.95 614710.00 Nil
MMG Agro
SBI CGO
j) PPF 101 9.3.90 71682.00 31682.00
Lodhi Road
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 30 of 309
OBC/S
k) SB 5767 12.00 Nil
Enclave
369804.00
l) SB 3798 -do- Nil
Total Rs. 24,29,247/-
33.The investigation further revealed that Anu Khairwal wife of C. S. Khairwal (A-1) was having 2 FDRs and 2 Saving Bank accounts in all having total sum of Rs.4,18,947/- and daughter of C. S. Khairwal (A-1) was having 2 FDRs besides saving bank account in all having amount of Rs.1,67,356/- and further accused K. C. Sharma (A-3)(since deceased) was having 4 saving bank accounts having sum of Rs. 5,17,422 as on 18.2.1996. Details of which are given as under:
Sr. No. Anu Bank & Date of Balance Income
Khairwal Name of opening through
Holder interest
FDR's No.
1 VCC Syndicate 7.11.90 14407.00 4407.00
483514/52 Bank
59 Khan
Market
2 CDR 6692 OBC/S 22.8.94 151995.00 31995.00
Enclave
By Balances
1 SB 4351 OBC/S 10.7.92 251581.00 1438.00
Enclave
2 SB 211 BOB /Mau 28.8.81 964.00 414.00
Ib.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
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Total Rs. 4,18,947/-
Manju Khairwal
1 FDR P&S Bank, 9.4.87 2038.50
863404/38 Janakpuri
/79
2 CDR 6822 SE/OBC 22.8.94 39331.00
By
Balance
1 SB 12430 Syndicate 7.10.89 125987.80
Bank
Total Rs.1,67,356/-
K. C. Sharma (since deceased)
1. SB 102909 Allahbad 18.4.95 289165.00 3165.00
Bank
Behra
Enclave
2. SB 11766 DNS Bank 23.2.84 199.75
Ltd.
Krishna
Nagar
3. SB 969 SBI 15.9.84 29922.69
Krishna
Nagar
4. SB 50440 Andhra 13.7.92 198135.00
Bank DDA
Ext.
counter
Total 5,17,422.00
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
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34.The investigation further revealed that there was balance of Rs.10,51,330/- in various accounts of C. S. Khairwal (A-1) and other accused. The details of the same are as under:-
Misc. deposits/FDRs Sr. Name of the Date of opened in the name Amount No. Bank opening of FD Mohan Lal Allahabad Bank 1 Cricket Memorial 16.2.96 70000.00 Behra Encl.
Tournament 2 SB -do- -do- 2.2.96 34200.00 SB 9111 Birbal Vijay Bank 3 19.4.95 15659.00 Charitable Trust Defence Colony CA 699 Sunita Mktg. Allahabad Bank 4 19.1.94 292174.00 & Com. Ltd. Timarpur FDR 363407/599/95 5 Distinguished Chit OBC Paharganj 106119.00 Funds Ltd.
Birbal Gifts Pvt.
6 CDR 8922 19.2.96 131427.00 Ltd.
Absu Manso 7 CA /30 7.12.92 61751.00 Automobiles Birbal Charitable 8 VSU/495/95 5.8.95 90000.00 Trust 9 -do- 150000.00 Total Rs. 10,51,330/-
35.Thus, during investigation total movable assets in the form of FDRs, cash, jewelery were revealed to the tune of Rs.61,77,843.00 CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 33 of 309which were shown invested by C. S. Khairwal (A-1) either in his name or the name of Sunil Khairwal (A-2) or accused K. C. Sharma (A-3)(since deceased) or others.
36.The investigation further revealed that C. S. Khairwal (A-1) mostly residing at 34, Gautam Apartment, Gautam Nagar where documents relating to C. S. Khairwal (A-1) were also found. Evaluation of articles in the said house revealed worth Rs.15,18,845/- lying there and same were taken to the tune of Rs.14,00,937/- and further that C. S. Khairwal (A-1) invested Rs.1,80,800/- in Beauty Parlour at the above said premises in the garage; spent Rs.9,350/- on the purchase of revolver; Rs.5,000/- invested on the debentures of Oswal Chemicals & Fertilizers; Rs.15,000/- on liquor bottles; recovery of foreign currency to the tune of Rs.63,700/-; Tata Siera bearing registration No. DL 1CD 7420 worth Rs.2 lacs; Maruti car bearing registration No. DL 2CC 3086 worth Rs.1 lacs; Contesssa bearing registration No. DID 1 worth Rs.2,50,000/-, car in the name of Sunita Khairwal worth Rs.80,000/-. Thus in all, a total of movable assets of Rs.90,26,763/- was found there.
37.The investigation has revealed that during the check period C. S. Khairwal (A-1) in conspiracy with Sunil Khairwal (A-2) and accused K.C.Sharma (A-3) (since deceased) acquired assets worth Rs.3,28,80,442/- and calculated the disproportionate assets in the following manner:-
Income 30,71,924/-
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 34 of 309
Expenditure 17,19,583/-
Likely Savings 13,52,341/-
Total Assets 2,38,80,442/-
Disproportionate Assets: 3,15,28,101/-
38.CFSL report on the documents including bank account opening form and related FDRs in the handwritings of Sunil Khairwal (A-2) has been called and sanction for prosecution of C. S. Khairwal (A-
1) has been obtained.
39.After completion of investigation, charge sheet was filed against C. S. Khairwal (A-1), Sunil Khairwal (A-2) and accused K.C.Sharma (A-3) (since deceased) for offences punishable under Section 120- B read with 5(2) read with 5(1)(e) of the P.C.Act, 1947 read with Section 420/478/471 IPC and substantive offences under Section 420/468/471 IPC against Sunil Khairwal (A-2) and accused K. C. Sharma (A-3) (since deceased) and further a case of disproportionate assets against C. S. Khairwal (A-1) of Rs.3,15,28,101/- to his known sources of income under Section 5(1)(e) read with Section 5(2) of P. C. Act, 1947.
COGNIZANCE AND CHARGES
40.Charge sheet against A-1 to A-3 was filed on 25.04.1998.
Cognizance against A-1 to A-3 for offence under Section 120-B IPC read with Section 5 (1) (e) r/w Section 5 (2) of PC Act r/w CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 35 of 309Section 420/468/471 IPC as well as substantive offence was taken on 05.08.1998.
41.During pendency of the case, accused K.C. Sharma (A-3) (since deceased) has expired on 21.01.2003 and vide order dated 06.03.2003 the proceedings against accused K.C. Sharma (A-3) was abated.
42.Arguments on charge were heard and vide order dated 15.07.2009 and charge for commission of offences punishable under Section 120 B read with Section 471 IPC and offence punishable under Section13(2) read with Section 13(1)(e) of P. C. Act, 1988 was framed against all the accused persons.
For substantive offence punishable under Section 471 IPC and 13(2) read with Section 13(1)(e) of P.C.Act, 1988 was framed against C.S. Khairwal (A-1) and for substantive offence punishable under Section 471 IPC was framed against Sunil Khairwal (A-2).
Charges were framed accordingly against C. S. Khairwal (A-1) and Sunil Khairwal (A-2) on 14.12.2009 to which they pleaded not guilty and claimed trial.
ADMITTED DOCUMENTS BY C. S. KHAIRWAL (A-1)
43.It will be also not out of place to mention here that the accused were also directed to admit or deny the documents relied upon by the prosecution and following documents were admitted:
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
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Srl. Document Exhibit Nature of the document
No. No.
1 D-1/A 143/B1 Pay details of A-1 during the foundational
course & Phase-I from LBS Mussoorie
Admitted
during the period 17.7.74 to 3.4.75
2 D-1/B 143/B2 Pay details of A-1 from Indian Audit &
Accounts Department for the period
Admitted
17.7.74 to 3.7.76
3 D-1/C P-1/3 Salary details of A-1 from 17.7.76 to
13.4.78, 14.4.78 to Feb. 79, 4.3.79 to
Admitted
31.7.79 from Delhi administration
4 D-1/D P1/4 Salary details of A-1 from Sept. 79 to
April 80 from Andaman &Nicobar
Admitted
Administration, Portblair
5 D-1/E P 1/6 Salary details of A-1 from Ministry of
Finance GOI from May 80 to June 80
Admitted
6 D-1/F P 1/6 Salary details of A-1 from Govt. of
Rajasthan for the period 20.6.80 to 15.7.81 Admitted 7 D-2 P-2 Salary details of A-1 from DDA for the period 9.9.81 to 31.12.81 Admitted 8 D-3 P-3 Salary details of A-1 from DRDA Delhi Govt. for the period Jan. 82 to Sept. 83 Admitted 9 D-4 P-4 Salary details of A-1 from 27.9.83 to 31.1.86 from Transport department of Admitted Delhi 10 D-5 P-5 Salary details of A-1 from 16.7.81 to 7.9.81 from Delhi Govt. while working as Admitted Joint Secretary 11 D-6 P-6 Salary details of A-1 from 12.11.90 to 31.12.90 from L&DO Department Admitted CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 37 of 30912 D-7 P-7 Salary details of A-1 from 1.1.91 to 15.3.92 from L&DO Department Admitted 13 D-8 P-8 Salary details of A-1 from 16.3.92 to May,93 from Transport department of Admitted Delhi 14 D-9 P-9 Salary details of A-1 from 11.6.93 to 18.2.96 Ministry of Surface Transport Admitted 15 D-10 P-10 Salary details of A-1 from Feb. 86 to 4.7.86 from DEDA, Delhi Govt.
Admitted 16 D-11 P-11 Salary details of A-1 from 5.7.886 to 10.11.88 from Arunachal Pradesh Govt.
Admitted 17 D-12 P-12 Salary details of A-1 from 11.10.88 to Jan.
89 from UTC Training Delhi Govt.
Admitted 18 D-13 P-13 Details of amount received from Sangam Co-operative Society being administrator Admitted 19 D-14 P-14 Details of CPF received by A-1 from Indian Oil Corporation Admitted 20 Admitted By Income from sale of car accrued to accused C. S. Khairwal.
21 Admitted By Income from LIC Policy accrued to accused Sh. C. S. Khairwal .
22 Admitted By income from interest on bank deposit & FDRs accrued to accused Sh. C. S. Kairwal 23 D-63 PW 105/1 Letter from Indian Ordinate Factory relating to advance payment of Rs.
Admitted 9350.40 towards purchase of 0.32 Revolver.
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24 Admitted Item No. 1 and 10 of immovable assets
Part of D- Mark PW GPA, Agreement to Sell, GPA and 258 45/PX-1 receipt of Rs. 2,30,000/- executed by Raj (coll.) Kumar in favour of A-1 in respect of Ex. P-1 to property in Khasra no. 31 situated in P-4 village Khirki (relating to property no.
T-13, Malviya Nagar) PROSECUTION EVIDENCE
44. In order to prove its case, prosecution examined following witnesses:
WITNESSES FROM BANKS Sl.
Name of the witnesses Purpose
No.
To prove account No. 5763
PW15 S. Jagannath Shetty, Chief maintained by A-1 and account
1. Manager, Vijaya Bank, Defence no. 9111 in the name of M/s Colony Branch, New Delhi Birbal Charitable Trust and FDRs.
PW16 Brij Bhushan Sharma, To prove account no. SF20140
2. Assistant Manager, Punjab National in the name of one Giri Raj Bank, Khanpur Branch, New Delhi Rajora.
PW17 Anil Kumar Jain, clerk, To prove account No. 17924 in
3. Punjab National Bank, Greater the name of Rajesh Kumar.
Kailash Part-1, Branch, New Delhi.
PW21 Nathu Ram Kohli, Assistant To prove that A-2 handed over Head Cashier, Oriental Bank of Rs. 7.50 lacs with 10 deposit
4. Commerce, Safdarjung Enclave slips for depositing in various Branch. accounts.
5. PW24 Dinesh Kumar Bhaskar, Sr. To prove opening of account/ Manager, Oriental Bank of transactions in A/C No. 7004 Commerce, Safdarjung Branch, to 7008, 4315, 1831, 3798, CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 39 of 309New Delhi. 2775, 2082 in the said bank.
PW33 B.S. Sethi, Officer/Manager, To prove handing over Oriental Bank of Commerce, documents to CBI of A/c
6. Safdarjung Enclave Branch, New No.7000, 7004 to 7008, 1050, Delhi. 1831, 4315, 3850, 6363.
PW34 Sukum Mani, Assistant To prove payments made by
7. Manager, City Bank, Gurgaon credit card holder A-1.
Branch, Haryana PW40 S.K. Bhardwaj, Clerk, To prove the certified copy of
8. Allahabad Bank,Cannaught Circus, statement of account pertaining New Delhi account no. 102197 of A-1.
PW51 A. Rama Naik, Assistant To prove documents relating to
9. Manager, Syndicate Bank, Khan bank account no. 12430 of Ms. Market, New Delhi Manju Khairwal.
PW74 R.K. Madan, Branch To prove FDR in the name of
10. Manager, Oriental Bank of M/s Distinguish Chit Fund Pvt.
Commerce, Paharganj, Delhi. Ltd.
PW77 Mahesh Kumar Saraf, Clerk,
To prove statement of account
11. Syndicate Bank, Khan Market, New
relating to Smt. Anu Khairwal.
Delhi.
PW78 R.K. Aggarwal, Clerk,
To prove statement of account
12. Syndicate Bank, Khan Market, New
relating to A-2.
Delhi.
To prove payments made from
current account no. 699 of M/s
PW79 Manmohan Mehrotra,
Smiriti Marketing
13. Assistant Manager, Allahabad
communications to M/s
Bank, Timar Pur
Puneet Cooperative Group
Housing Society.
PW88 Rajiv Jain s/o Satpal Jain, To prove the documents pay
14. Clerk, Oriental Bank of Commerce, orders in favour of Anu Sarvpriya Vihar, New Delhi Khairwal.
To prove the documents
handed over to CBI vide
PW89 D.K. Sharma, Chief
seizure memo dated
15. Manager, State Bank of India,
26.09.1997 relating to pay
Malviya Nagar, Delhi.
orders in favour of Anu
Khairwal.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 40 of 309
To prove the documents
PW90 N.K. Mittal, Scale-I Officer, handed over to CBI in respect
16. Allahabad Bank, Timarpur, Delhi. of M/s Smriti Marketing & Communication.
To prove the documents relating to account of Sunil PW98 R. Gupta, General Manager,
17. Khairwal, Sunita Enterprises, UCO Bank Kailash Nath and Sunita seized by the CBI from UCO Bank.
To prove that after death of PW99 Ravinder Yadav, Branch Birbal Khairwal, C.S.
18. Manager, Oriental Bank of Khairwal (A-1) had repaid his Commerce.
outstanding loan amount.
PW103 Pradeep Kumar Gupta, Sr. To prove the seizure memos of
19. Manager, Oriental Bank of documents of the bank by CBI.
Commerce, Safdarjung Enclave.
PW104 Ashok Khanna, Branch To prove the seizure memo of Manager, Syndicate Bank,
20. documents of the bank by CBI Transport Bhawan, Parliament relating to account of A-1.
Street.
To prove the signature of Sh.
PW125 Pratap Singh, the Daftri, B.S.Suneja, the branch
21. Punjab & Sind Bank, Janakpuri. Manager on certified copy of vouchers, FDRs and letters.
To prove the seizure memo PW126 N. Prasanna Kumar, Chief vide which some documents
22. Manager, Syndicate Bank, Khan were seized by CBI from the Market, Delhi.
Branch.
PW128 Ravinder Singh Payal, To prove handing over/ seizure
23. Clerk, Syndicate Bank, Dhaula memo of certain documents Kuan, New Delhi. to CBI.
PW132 Sh. Rajinder Kumar, To prove the inventory given
24. Sweeper, Punjab National Bank, by the manager for delivery to Lodhi Road Branch. CBI.
PUBLIC WITNESSES
Sl. Name of the witnesses Purpose
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 41 of 309
No.
25. PW1 Rakesh Raina s/o Late Sh. Property Dealer to prove C.K. Raina, Property Dealer sale/purchase of Greater Hostile. Kailash Property.
26. PW2 Gulshan Chadha s/o Late Ram Seller of Car Tata Sierra No. Praksh Delhi DL1CD 7420 to A-1
27. PW4 Twinkle Tyagi w/o Ajay Tyagi To prove that KC Sharma Hostile. came to her house with a brief case, having money and some documents.
28. PW5 Om Prakash s/o Hira Lal Bags having Rs. 70,000/-, Hostile. jewellary etc. were given to him by Kalya Singh Nagar and he kept it with Harish Mehta.
29. PW6 Govind Singh Khairwal s/o Cousin of A-1 to prove the Sh. Shiboo. family background of accused Hostile. and his family.
30. PW7 DVS Yadav s/o Late Sh. Ram To prove the knowledge that Veer A-1 was having various Hostile. immovable properties in Delhi.
31. PW8 Vinod Mishra s/o Kishan To prove the knowledge of Avtar Mishra. assets of A-1 Hostile.
32. PW9 Hari Shankar Gupta s/o Sh. To prove renovation work S.R. Gupta, Contractor/Architect done by him on the asking of Hostile. A-1 at F-85, East of Kailash, N.Delhi.
33. PW10 Chet Ram s/o Late Mukand To prove the use/possession of Ram, Dentor /Painter various vehicles by A-1. Hostile.
34. PW11 Ramesh Khanna s/o Krishan To prove sale of F-85, East of Chand Khanna Kailash to A-1.
35. PW12 Gajendra Prasad s/o Kharak To prove that sister of A-1 was Singh residing in his house as Hostile. tenant.
36. PW13 Mohan Singh s/o Madan Pal To prove family background of CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 42 of 309 Singh A-1 and his assets.
Hostile.
37. PW14 Ajay Sharma s/o Trilok To prove sale of property F-85, Chand Sharma, Property Dealer East of Kailash to A-1. Hostile.
38. PW19 O.P. Pathak s/o M.C. Pathak, To prove allotment of flat No. President of UNA Group Housing 210-B in the society to Kumari Cooperative Society Manju Khairwal daughter of A-1.
39. PW20 Madan Mohan Lal s/o Purchaser of flat no. BF/4C, Khushi Ram, Munirka, New Delhi from A-
1.40. PW25 Ravinder Kumar Dadoo, To prove that he assisted in Chartered Accountant preparing income tax returns Hostile. and handed over some documents to CBI.
41. PW27 Harish Mehta, photographer, To prove that a bag was left at Hostile. his shop by Rajesh Gupta,
42. PW28 Kalyan Singh Nagar, To prove the recovery of Rs. 6 acquaintance of A-1. lacs, jewellery etc. at the Hostile. house of one Khushi Ram of A-1 by him.
43. PW35 Bal Kishan s/o Manga Ram Witness to the pertaining to Hostile. sale transaction of land in village Kishan Garh.
44. PW36 Krishan Lal Shama, Witness to the pertaining to Hostile. sale transaction of land in village Kishan Garh.
45. PW38 Rajender Kumar Nagar s/o To prove that his father had Kalyan Singh Nagar kept Rs.6 lacs and jewellary at Hostile. the house of Khushi Ram of A-1.
46. PW41 Yogesh Sharma, Accountant To prove the payments made of South Delhi Club Ltd. by A-1 to the Club.
47. PW42 Manbir Singh s/o Gyan To prove the sale documents Singh of plot of land measuring 725 sq. yds situated at Neb Sarai, New Delhi.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 43 of 30948. PW43 Prakash Chand s/o Hari Witness to three sale deeds Chand. (Ex. PW14/A to Ex. PW14/C) Hostile, in respect of 12 bighas of land in village Asola, Delhi
49. PW44 Tek Chand Sharma s/o Late Witness to sale/purchase of Dhanpat Ram Sharma land in village Kishan Garh by A-1.
50. PW45 Mahesh Kaushik s/o Late Seller of land at village Khirki Ram Singh Kaushik. to A-1 and his wife.
Hostile.
51. PW47 N.D. Tyagi, Area Sales Transaction details of M/s Manager of M/s Suraj Auto Mobile MANSO ABSU Automobiles Ltd run by K. C. Sharma and to identify A-2 as its partner.
52. PW49 Jawahar Lal s/o Late Sh. Bal To prove the execution of Chand, Attorney holder of I.A. three sale deeds (Ex. PW14/A Malkani. to Ex. PW14/C) in respect of Hostile. 12 bighas of land in village Asola, Delhi in favour of M/s MMG Enterprises.
53. PW54 Indru Malkani s/o Arjun Das To prove the purchase of land Malkani by witness at Village Asola by way of five sale deeds and subsequent sale of the land to Rajender Sehgal.
54. PW58 J.C. Sehgal s/o Khotu Ram Unable to depose anything Sehgal being lost his memory.
55. PW62 Ram Swaroop s/o Mool To prove that Flat at Vasant Chand Kunj belonged to A-1.
Hostile.
56. PW65 Satish Kapoor, General To prove the lease deed and Manager, JCT Ltd. hire agreement dated 10.11.1995 in respect of rented premises at East of Kailash taken from A-2 Sunil Aggarwal.
57. PW66 Subrangshu Gupta, To prove that the building plan CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 44 of 309 Architect. of house no. F-85, East of
Kailash, New Delhi prepared
at the instance of A-1 C.S.
Khairwal
58. PW67 Roshan Singh s/o Nirbhay A native of village Mau
Singh. Khas to prove that A-1 had
Hostile. prepared 5 shops and rooms in
the village and purchased 2 ½
bigha land in the name of his
wife and son A-2.
59. PW68 Ram Dhan s/o Madan Lal. A native of village Mau
Hostile. Khas to prove that he was
working as chowkidar in the
fields of A-1 at village
Kiyarda
60. PW69 Shiv Dayal s/o Ram Khiladi. To prove the financial status of Hostile. the family of A-1.
61. PW70 Shiv Charan s/o Sona To prove that he worked as Narayan resident of village Chaukidar in the field Kiyarda. purchased by the wife and Hostile. sons of C.S. Khairwal and was paid salary by C.S. Khairwal.
62. PW71 Suresh Ashiwal s/o Prabhu To prove that A-1 had Dayal, relative (nephew) of A-1 purchased some property. Hostile
63. PW73 Pawan Kumar Ralhan s/o To prove that Flat no. 34, SFS, D.V. Ralhan, r/o flat no. 30, SFS, Gautam Apartment belonged Flats, Gautam Apartments, Delhi. to A-1 and on the day of raid Hostile. certain articles were removed from there.
64. PW75 Naresh Kumar s/o Om To prove payment of charges Prakash. for putting tent during cricket Hostile. match.
65. PW76 Bhupinder Singh Solanki s/o To prove the income generated Devi Singh. by cultivation from agricultural land in village Mau Khas and Ghosla
66. PW82 Satyaveer Ahlawat s/o A.S. To prove the files and CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 45 of 309
Ahlawat, Chartered Accountant. documents relating to Panna
Lal Khairwal and Smt. Santra
seized by the CBI from his
office during search
proceedings.
67. PW83 Hoti Lal s/o Mangal. To prove the sale deeds dated
10.02.1993 and 15.02.1993
executed in favour of A-2 and
Smt. Anu Devi as attesting
witness.
68. PW84 Niranjan Lal Soanki, Deed To prove the sale deed dated Writer in Tehsil, Hindon, Rajasthan. 21.09.1993 drafted by him.
69. PW85 Gyan Prakash Sharma s/o To prove sale documents Late Sh. Dilip Singh, friend of A-1. executed in favour of Sh.
Hostile. Birbal Khairwal and K.C. Sharma as an attesting witness.
70. PW86 Ram Charan s/o Sh. Phatta. To prove the sale deed dated Hostile. 03.08.1994 executed in favour of Shiboo Ram Khairwal.
71. PW87 Rajender Sehgal s/o Late To prove the agreement to sell Jeet Ram Sehgal. and handing over the cheque Hostile. to Jawahar Lal Chhabra.
72. PW96 Dr. Anil Sood. Veterinarian to prove that A-2 used to take his services for his pets.
73. PW107 Puranmal Sharma s/o Shri To prove the status of family Lal Sharma, r/o Village Mau of A-1 at his native village. Ibrahim Pur.
74. PW108 Shri Omi Nagar s/o To show that receipt dated Kanahiya Ram Nagar r/o village 25.9.1992 was not signed by Kyardakala. him.
75. PW109 Sh. Vijay Kumar Arya s/o To prove the deal of Late Sh. Hira Lal sale/purchase of land situated Hostile. at village Kyarda Khurd, in the name of A-2 and Anu Khairwal
76. PW111 Rajesh Jain s/o D.P. Jain, To prove the sale deed in Property Dealer. respect of property at Greater CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 46 of 309 Hostile. Kailash.
77. PW117 S.V. Subramanium. To prove the investment made
by A-1 in M/s Larsen & Tubro
Ltd. Mumbai.
78. PW118 Satish Bansal r/o Village To prove that there was no oil Mau Ibrahim Pur. mill by the name of M/s Khandelwal Oil Mill in 1992- 93 or thereafter.
79. PW123 Ram Swaroop s/o Chote To prove and identify his Lal relative of A-1 and A-2. specimen signature and handwriting.
80. PW133 Mahender Singh To prove the house search of Hostile. Ram Swaroop.
81. PW134 M.C. Podiyan Pillai To prove the house search of Kalyan Singh Nagar.
WITNESSES FROM INCOME TAX DEPARTMENT
Sl. Name of the witnesses Purpose
No.
82. PW72 Subhash Sahni, Dy. To prove the assessment order
Commissioner, Income Tax dated 03.02.1989 for
Department. assessment year 1986-87 &
Hostile. 1987-88 in respect of wealth
tax of Sh.Birbal Khairwal.
83. PW127 Ram Niwas Jain, Inspector To prove the ITR filed by Income Tax Department Ward No. Manju Khairwal pertaining to 15(9). year 1990-91.
WITNESSES FROM DDA & MCD
Sl. Name of the witnesses Purpose
No.
84. PW30 M.L. Ahuja , Assistant To prove file pertaining to flat Director, Self Finance Scheme no. 34, Gautam Nagar, Delhi (SFS), Section of DDA to prove the DDA CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 47 of 30985. PW55 H.L. Chawla, Retd. Joint To prove the demolition of Director, ( Land Protection Branch), encroachment at JNU Road, South West, DDA Kishgargh, Vasant Kunj, New Delhi carried out on 17.08.1993.
86. PW56 Dalip Singh, Assistant To prove the seizure of Assessor & Collector, MCD assessment order dated 22.03.1994 in respect of property no. F-85, East of Kailash, New Delhi and letter dated 10.08.1988 written by Birbal Khaiwal.
87. PW60 B.S. Arya, Field Investigator To prove the rough sketch plan in Land Management, South West of JNU Road, Kishanganj for Division, DDA. carrying out demolition.
88. PW61 B.B. Jaiswal, Jr. Junior, Land To prove the demolition in Protection Department, DDA development area no. 125 on 17.08.1993.
89. PW64 S.P. Gupta, Assistant To prove the DDA file in Director, DDA, SFS Branch respect of flat no. 2298 Category-II Pocket 243, Sector B, Vasant Kunj, New Delhi.
WITNESSES FROM OTHER OFFICES
Sl. Name of the witnesses Purpose
No.
90. PW22 Girish Chand, Sr. Ticket Witness to the house search Collector, Indian Railway, Old conducted by CBI in the area Delhi Railway Station, of Kishan Garh.
91. PW23 Gurmeet Singh, Ticket Witness to the house search collector, Old Delhi Railway conducted by CBI in the area Station, witness to the house search of Kishan Garh. conducted by CBI in 1996.
92. PW26 Santosh Kumar Sharma, To prove sealing proceedings UDC, Department of Industry, at Flatted Factory Complex, GNCT, Delhi Jhandewalan.
93. PW29 M.C. Arya, Ticket Collector, To prove search conducted by CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 48 of 309New Delhi CBI vide observation memo dated 18.02.1996 (PW29/1).
94. PW31 K.K. Dahiya, Special To prove the information of Commissioner Transport details of Pay & allowances Department, Govt. Of Delhi drawn by A-1.
95. PW32 Manender Pal Singh, Data To prove the handing over of Entry Operator in Mahatma Gandhi 17 applications signed by Institute for Combating Climate Jaspal Singh, Bus Attendant to Change, Govt. Of NCT of Delhi CBI.
96. PW39 Ashok Gaur, Assistant To prove sale purchase of Engineer, DSIIDC property no. E-286, East of Kailash etc.
97. PW46 Atma Ram Singhal, To prove the details of Assistant Director, Department of payments made by the allottee Industry, Govt. Of NCT of Delhi with respect to flat C-11, flatted factory Complex, Jhandewalan.
98. PW48 K.S. Jaswal, Assistant To prove the salary details of Account Officer and DDO in Land A-1 from October, 1990 to & Building Department of Govt. December, 1990. Of NCT of Delhi
99. PW50 Sanjay Anand s/o Devanand, To prove the house search Manager, FCI, New Delhi witness conducted by CBI at to the house search conducted by Panchsheel Enclave. CBI at Panchsheel Enclave.
100. PW52 J.C. Sharma, AG-I, FCI To prove that CBI had Headquarter to prove that CBI had obtained the specimen obtained the specimen signatures signatures of Madan Lal, Ram of Madan Lal, Ram Swaroop and Swaroop and Sunil Khairwal Sunil Khairwal in his presence. in his presence.
101. PW53 P.D. Singhal, Commercial To prove the seizure of file Officer (S-II), MTNL, Nehru Place, pertaining to telephone no.
New Delhi 6437197 by CBI.
102. PW57 Bhim Sen Narang, Account To prove the seizure of record Officer, MTNL by CBI pertaining to payment of telephone no. 7771512 in the name of Sunita Enterprises.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 49 of 309103. PW59 Omkar Nath, Clerk, MTNL, To prove the information Nehru Place supplied to CBI regarding payment of bills of telephone number 6433444 in the name of Mrs. Anu Khairwal.
104. PW63 O.P. Sachdeva, Dy. Director, To prove the information Department of Industry, Govt. Of supplied to CBI regarding the NCT of Delhiewalan, New Delhi. rent paid in respect of flat no.
C-11, Flatted Factory
Complex, Jhandewalan.
105. PW80 Ghanshyam Aggarwal, Naib To prove the cattle census of Tehsildar, Tehsil Hindon, District 1977 and 1992 in respect of Twai Madhopur, Rajasthan. village Mau Ibrahim Pur
106. PW81 Devender Kumar Sharma, To prove the house search Office Superintendant, ESIC, conducted by CBI in Jaipur. Jaipur.
107. PW91 Suresh Chand Sharma, To prove the valuation reports Assistant Engineer, PWD, Hindon along with the Map prepared City, Rajasthan . by him at village Kiyarda Khurd and Mau Khas.
108. PW92 Hari Mohan Gupta s/o G.R. To prove the search conducted Gupta, Inspector, CBI office, Jaipur by him on 19.02.1996 in . Jaipur.
109. PW93 Sushil Kumar Vijay, To prove the mutation no. 50 Patwari, Kiyarda Khurd. and khatoni jamabandi in respect of Khasra no. 427 and Khasra girdwari of land at Kiyarda Khurd for period Samvat 2051 to 2053
110. PW94 Giri Raj Prasad Office To prove the personal file of Assistant, Public Health Smt. Kampoori Devi and Roop Engineering Department, Bhartpur. Ram seized by CBI.
111. PW95 Sanjeev Bhatnagar, Addl. To prove the valuation report Director, Economic Intelligence of the jewellary articles Bureau. recovered from the locker in Punjab National Bank, Khan Market, New Delhi.
112. PW97 M.S. Chauhan, Addl. To prove the valuation report CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 50 of 309
Commissioner Customs dated 07.05.1996 of the gold
Department and diamond jewellary.
113. PW100 Rajesh Verma, Foreign To prove the valuation report Trade Consultant. dated 30.04.1997 in respect of the jewellary articles recovered from the locker of A-2 at UCO Bank, Delhi High Court.
114. PW101 Sh. Murari Lal Meena, To prove the certified copy of Clerk, Sub Registrar Office, the three sale deeds Ex. District Hindon, Rajasthan PW83/1, Ex. PW83/2, Ex.
PW86/1.
115. PW102 Sh. J.C. Sachdeva s/o Sh. To prove the office search-
R.D. Sachdeva, PS to A-1 in cum-seizure memo dated Ministry of Surface Transport. 19.02.1996.
116. PW105 R.K. Pandey, Works To prove purchase of revolver Manager, Small Arms Factory by A-1.
Kanpu.
117. PW106 Naveen Kumar, Jr. To prove the valuation of six Engineer in Engineering Wing, properties mentioned in CBI, New Delhi . valuation report dated 25.07.1997.
118. PW110 Ram Prasad Singh s/o To prove the consumption of Bihari Lal, Accounts Suptd. in the electricity with respect to K. office of AFO, DESU, Adhchini. No. 01-34614.2DL
119. PW112 Dharmender Kumar s/o To prove the house search of Prabhu Singh. A-1 by CBI.
120. PW113 Prit Pal Singh s/o To prove the house search of Gurcharan Singh. A-2 by CBI.
121. PW114 R.D. Gupta Junior Telecom To prove the office search Officer conducted by CBI at Model Basti, Karol Bagh relating to ITRs for the period 1992-93 to 1994-95.
122. PW115 Bharat Bhushan, Sr. To prove the arrest and house Assistant, Health & Establishment, search of A-2 at Khirki NDMC, New Delhi. Extention, New Delhi.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 51 of 309123. PW116 Kahan Lal, Sr. Clerk in To prove the house search Personnel Department, NDMC, conducted by CBI at the house New Delhi. of A-2.
124. PW119 Sh. Ahmed Razi Ud Din, To prove the personal record Assistant Grade in Delhi State, of Sh. Harish Prasad Khairwal, Civil Supply Corporation. brother of A-1.
125. PW120 Yashpal Sharma, Section To prove the house search Officer, Horticulture Department, conducted by CBI at Kishan MCD. Garh in the house of one Mr. Sharma.
126. PW121 Ashok Kumar s/o Late To prove the house search Ram Lal, Ticket Collector, Old conducted by CBI in DDA flat Delhi Railway Station. at Munirka.
127. PW122 G.K. Behl, Stamp Auditor To prove the stamp sale in the office of Collectorate of register of stamp vendor Arti Stamp, Tis Hazari, Delhi. Narula for the period 30.08.1989 to 04.12.1989.
128. PW124 Ms. Suman Razdan, To prove Due Drawn Assistant Accounts Officer in Statement of the period 1996- Office of Directorate of Training , 2000 of A-1. UTCS, Delhi
129. PW129 Surinder Kumar Babbar, To prove the baggage receipt Inspector Customs at IGI Airport in the name of Manju Khairwal.
130. PW130 Jai Krishan, Patwari, To prove the Khasra Girdawari Tehsil Mehrauli, South Delhi of Khasra no. 31.
131. PW131 Gajender Singh. To prove Observation Memo dated 18.02.1996
132. PW135 Rakesh Koli, Gram Sewak, To prove the date of death of Village Mau Ibrahim Pur. Birbal Khairwal, father of A-1.
133. PW136 Tarini Prasad Jha, Dy. SP To prove the house search in CBI the premises in East of Kailash on the asking of IO.
134. PW137 V.K. Gulati, Development To prove the insurance cover Officer at New India Assurance note of Contessa car no. DID Company 1.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 52 of 309
WITNESSES FROM CFSL
Sl. Name of the witnesses Purpose
No.
135. PW37 V. K. Khanna, CFSL To prove his report regarding
(Document Division), New Delhi questioned and specimen
documents sent by CBI.
SANCTIONING AUTHORITY
Sl. Name of the witnesses Purpose
No.
136. PW18 Jaswant Singh, Under To prove sanction order dated
Secretary (Vigilance) 05.02.1998 against A-1.
WITNESSES FROM CBI
Sl. Name of the witnesses Purpose
No.
137. PW3 Rajeev Chadha, Dy. SP, ACB, to prove the investigation and CBI, New Delhi search at the house of Kampoori Devi, sister of A-1 conducted by him.
138. PW138 R.V.S. Lohmor, Inspector, To prove the investigation/ ACB, CBI. search conducted by him.
139. PW139 Arvind Kumar Kapoor, To prove the investigation/ Inspector, ACB, CBI, New Delhi. search conducted by him.
140. PW140 Prabhat Chander Sharma, To prove the investigation/ DSP, ACB, CBI, New Delhi. search conducted by him.
141. PW141 Azad Singh, Inspector, To prove the investigation/ ACB, CBI, New Delhi to prove the search conducted by him. investigation conducted by him.
142. PW142 Vipin Kumar Verma, Sub To prove the investigation/ Inspector, ACB, CBI, New Delhi to search conducted.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 53 of 309
prove the investigation conducted
by him.
143. PW143 S.K. Peshin, Dy. SP, CBI, IO of the case to prove his IO of the case to prove the investigation.
investigation conducted by him.
STATEMENTS OF ACCUSED UNDER SECTION 313 Cr.P.C.
45. Statements of accused persons were recorded under Section 313 Cr.P.C. after conclusion of prosecution evidence. Both accused persons have preferred to lead evidence in their defence. It is further stated that C. S. Khairwal (A-1) and Sunil Khairwal (A-2) have denied the allegations against them.
DEFENCE EVIDENCE
46.C.S. Khairwal (A-1) has examined fifteen witnesses and Sunil Khairwal (A-2) has examined two witnesses in order to prove their defence.
Sl. Name of the witnesses Purpose
No.
WITNESSES ON BEHALF OF A-1
1. D1W1 : Sh. Sunil Kumar Jain, He had brought record
Under Secretary & CPIO, pertaining to fixed deposit of Ministry of Shipping, Govt. of Rs.37,620/- with Syndicate India, 425, Transport Bhawan, 1 Bank, Transport Bhawan Parliament Street, New Delhi Branch, Delhi.
2. D1W2 : Sh. Shivkant Kumar, No record pertaining to Under Secretary & CPIO, Architect appointed by Ministry of Road Transport & Transport Department, brought Highways, Govt. of India., by this witness Transport Bhawan, 1, Parliament Street, New Delhi.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 54 of 309
3. D1W3 : Ms. Th. Lianboi, Under Summoned record from
Secretary Transport Section, transport department not
Ministry of Road Transport & available.
Highways, Govt. of India.,
Transport Bhawan, 1, Parliament
Street, New Delhi.
4. D1W4 : Sh. Vimal Rai, UDC, NOC with regard to vehicle Transport Department, GNCT of bearing No. DL CD 7420 was Delhi, Mall Road, Delhi. given by the department on 03.11.2004.
5. D1W5 : Sh. Raj Kumar s/o late He brought record pertaining to Sh. Moti Ram Mittal, Deputy salary of Sunita Khatolia.
Manager, Delhi
SC/ST/OBC/Minorities &
Handicapped Financial &
Development Corporation Ltd.,
Ambedkar Bhawan Institution
Area Sector 16, Rohini, Delhi
110085.
6. D1W6 : Sh. Amaan Sahil, Aged Summoned record was not
20 years, Consultant in Corporate traceable legal Department, Bennett Coleman & Co. Ltd. 7, Bahadurshah Zafar Marg, New Delhi-3
7. D1W7 : Sh. Dharamjit, Daftari, He brought record pertaining to Income Tax Appellate Tribunal, order dated 19.01.2007 passed Loknayak Bhawan, Khan Market, by ITAT.
N. Delhi.
8. D1W8 :Sh. Rajesh Shankar, He brought record pertaining to Section Officer, Services-I intimations given by and Branch, Services Department, acceptances thereof relating to GNCT, Delhi. C. S. Khairwal (A-1)
9. D1W9 :Sh. Raj Kishan Vats, He brought record pertaining to Under Secretary (AVD), note-sheets regarding of grant of Department of Personnel and sanction for prosecution of C. S. Training, North Block, Central Khairwal (A-1) Secretariat, New Delhi.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 55 of 30910. D1W10 :Sh. Kailash Chand He brought record pertaining to Yadav, Asstt. Public Health date of birth of female children Inspector, SDMC, Central Zone, of C. S. Khairwal (A-1) Lajpat Nagar, New Delhi.
11. D1W 11 :Sh. Satish Chand He brought record pertaining to Mittal, Jr. Clerk (LDC), Nagar death of Birbal Khairwal. Nigam Bharatpur, Rajasthan.
12. D1W12: Sh. Munish Chhabra, He could not bring record Branch Manager, Branch 113 LIC pertaining to LIC policy of C. S. Parliament Street, Jeewan Tara Khairwal (A-1) Building, Delhi.
13. D1W 13: Ms. Shobha Barthwal, She brought record pertaining Asstt. Ahlmad in the court of Sh. to excise case titled as State Vs. Gagandeep Jindal, Ld. MM-09 Charan Singh and Anr.
(South-East), Saket Courts
Complex, New Delhi.
14. D1W14: Ms. Shampa Das, She brought record pertaining to Section Officer, Personnel application and intimation of C. Department, Arunachal Pradesh S. Khairwal (A-1) relating to Civil Secretariat, Itanagar, sale of flat.
Arunachal Pradesh.
15. D1W15: S. Dev Nath, UDC, He brought record pertaining to SAA, Chimpu, Itanagar, minutes of meeting related to Arunachal Pradesh. 30.09.1988.
WITNESSES ON BEHALF OF A-2
16. D2W1: Sh. Raghubir Singh, He brought record pertaining to Daftari, Income Tax Appellate order dated 13.11.2003. Tribunal, Loknayak Bhawan, Khan Market, N. Delhi.
17. D2W2: Sh. Sandeep Pal, Jr. He brought record pertaining to Judicial Assistant (Data Entry), order dated 21.07.2005. Record Room, Delhi High Court, New Delhi.
47. I have heard Ld. Sr. PP for CBI and Ld. Counsels for both the accused persons at length and have carefully perused written CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 56 of 309submissions/arguments filed by Ld. Defence counsels as well as the judgments relied upon by Ld. Counsels for the parties. In order to avoid repetition, I shall deal with the arguments advanced by Ld. Sr. PP for CBI and Ld. Defence counsels in detail. Further, I shall proceed to deal with the allegations leveled against the accused persons by CBI in charge-sheet one by one in detail to find out if prosecution has been able to prove its case against the accused persons or not.
48.Before proceeding further, it is important to lay down the points of determination, as per the procedure:
POINTS OF DETERMINATION i. Whether C.S. Khairwal (A-1) and A-2 had criminally conspired with each other and C. S. Khairwal (A-1) by his criminal misconduct amassed assets movable and immovable, dis- appropriate to his income in furtherance of criminal conspiracy?
ii. Whether C.S.Khairwal (A-1) has purchased/ collected by himself or by any person on his behalf having possession of a number of properties movable and immovable as mentioned in the charge-sheet?
iii. Whether C.S.Khairwal (A-1) holds benami properties in the name of his son A-2 and other family member i.e. wife, daughter, brother and other relatives?
iv. Whether total income from lawful sources of C. S. Khairwal (A-1) is less than the total assets CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 57 of 309
movable or immovable found in his possession including benami properties, do not correspond to his income and earning from lawful sources?
v. Whether C. S. Khairwal (A-1) and Sunil Khairwal (A-2) have manipulated the impugned Will in question and has used this forged document as genuine in his favour such manipulated and forged Will?
FIRST POINT OF DETERMINATION C.S.Khairwal (A-1) and A-2 had criminally conspired with each other and C. S. Khairwal (A-1) by his criminal misconduct amassed assets movable and immovable, dis-appropriate to his income.
49. With regard to the first point of determination, it is reflected that charge under Section 120 B Cr.P.C has been framed against C. S. Khairwal (A-1) and Sunil Khairwal (A-2) as well as K. C. Sharma (A-3) (since expired). As proceedings against K. C Sharma (A-3) (since deceased) has been abated, therefore, no observation with regard to role or conduct of K. C Sharma (A-3) (since deceased) is required to be discussed or given. It is further important to mention that any reference of K. C. Sharma (A-3) (since deceased) in following paras, therefore, would be considered as mere coincidently and subject to the merits of the case however no expression would be considered as any opinion on merits upon the role of accused K. C. Sharma (A-3) (since deceased) in any circumstances.
50. At the outset, it is mentioned that section under which charge has been framed against accused persons is Section 120 B IPC.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 58 of 309Section 120 B IPC talks about criminal conspiracy. Before proceeding further the essential ingredients of this section are required to be looked into before arriving at any conclusion. Section 120-B IPC reads as under:
Section120-B IPC - Punishment of criminal conspiracy (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
The essential ingredients of Section 120-B IPC are as under:
(i) There is a conspiracy to commit a criminal act vide which all the accused persons have conspired with meeting of mind to commit an act which is criminal in nature.
(ii) Such meeting of mind with agreement to do a criminal act is such which, if committed, is punishable with death or with life imprisonment or rigorous imprisonment for a term of two years or more.
51.In order to establish a charge of criminal conspiracy, the prosecution must prove an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means, provided that where the agreement is other than one to commit an offence, the prosecution must go further and prove that some act besides the agreement was done by one or more of the parties in pursuance of it. It is to be kept in mind that proof of overt act committed by the accused or any of them is not strictly necessary on this charge, but proof that accused or some of CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 59 of 309them were concerned in the overt act alleged would go far to establish that the agreement alleged was in fact made between them.
52.It has been held in "Baccha Babu Vs. Empror", AIR 1935 All-162 that though proof of overt act is not necessary in a case, yet it may well be that if such acts are proved, the court will be bound to interfere that they are not unconnected and isolated acts but acts which must have been committed in pursuance of an agreement made between the accused.
53.Another case can be laid for reference is "Moti Lal Roy vs. Empror" 37 Crl.J 999 in which it has been held that where a conspiracy between several persons is alleged, it is not necessary for prosecution to prove, before it can be held established, that each conspirator knew and had personal communication with all the rest, because some of them might be intermediaries proof that accused entered into agreement to do unlawful act, is sufficient.
54.In this regard, it is important to mention here that in such cases where criminal conspiracy is considered to have been proved, any direct evidence is seldom available. It is the conduct of the parties, which has to be inferred from the entire subsequent circumstances as alleged in the charge-sheet and narrated by the prosecution which has to be considered. No doubt, criminal conspiracy always take place in enclosed environment and in privacy, however, it is their subsequent conducted i.e. their overt act, which has been to CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 60 of 309seen and considered.
55.In light of above discussion, allegations made against C. S. Khairwal (A-1) and Sunil Khairwal (A-2) who is the son of C. S. Khairwal (A-1) are perused thoroughly.
56.C.S. Khairwal (A-1), as per record, was a Government Servant i.e., an IAS on the day when he was arrested, thus, there is no dispute that C. S. Khairwal (A-1) is not a public servant. The check period in the present case starts w.e.f., 16.07.1974 till 18.02.1996 when FIR in present case is stated to have been registered. Sunil Khairwal (A-2) who is admittedly son of C. S. Khairwal (A-1) is stated to be born in the year 1970. Thus, at start of the check period he was merely 4 years old and in the year 1996 he was 26 years old. If the allegations of collection of disproportionate assets to his lawful income are considered then allegation regarding acquiring most of the assets by C. S. Khairwal (A-1) are during the period when Sunil Khairwal (A-2) remained minor or as per allegation he was not working or not having his independent source of income.
57.It is alleged by CBI that Sunil Khairwal (A-2) being son of C. S. Khairwal (A-1) used to reside with C. S. Khairwal (A-1) as a family, therefore, as per allegation, C. S. Khairwal (A-1) was aware of the fact that being a Public Servant he could not possess all such disproportionate assets in his name for which he could not account for, therefore, he had purchased all such assets, movable and immovable either in the name of Sunil Khairwal (A-2) or in the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 61 of 309name of his wife, daughter, brothers, father and relative.
58.Prosecution has provided the entire list of assets and income as well as economic status of various persons as mentioned above alleging that they except C. S. Khairwal (A-1), were not having enough economic status which could correspond to the assets movable and immovable held by them in their name.
59.It is needless to say that onus to prove guilt of accused, as a matter of procedure is always primarily upon prosecution. The prosecution must establish the guilt of accused beyond reasonable doubt and evidence lead by the prosecution should be in such a way that onus of all the facts is shifted upon the accused and prosecution is able to discharge burden of proving facts upon accused is/are liable for the offence for which they have been charged with.
60.Further discussion with regard to connivance of C. S. Khairwal (A-1) with Sunil Khairwal (A-2) would be considered along with discussion on other points of determination as it would be most appropriate in eyes of law that all the allegations against accused persons more particularly C. S. Khairwal (A-1) are analyzed in the light of evidence led by the prosecution as a whole.
OTHER POINTS OF DETERMINATION ii. Whether C.S.Khairwal (A-1) has purchased/ collected by himself or by any person on his behalf having possession of a number of properties movable and immovable as mentioned in the charge-sheet?
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 62 of 309ii Whether C.S.Khairwal (A-1) holds benami properties in the name of his son A-2 and other family member i.e. wife, daughter, brother and other relatives?
iv. Whether total income from lawful sources of C. S. Khairwal (A-1) is less than the total assets movable or immovable found in his possession including benami properties, do not correspond to his income and earning from lawful sources?
61.All these three above mentioned points of determination are interlinked and connected with C. S. Khairwal (A-1). Thus, all the above points of determination are taken up side by side after analyzing the evidence led by prosecution as well as accused persons along with material available on record.
62.One of the allegation upon accused C. S. Khairwal (A-1) is that he is holding/possessing assets, movable and immovable in the name of A-2, wife, daughter, brothers, father and relative. Before proceeding further, it is important to lay down the relevant law and the procedure which has to be considered while dealing with issue pertaining to benami properties/ benami transactions. Before proceeding further it is important to discuss the economic status of Birbal Khairwal, Sunil Khairwal (A-2) and other persons who are stated to be holding properties on behalf of C. S. Khairwal (A-1) ECONOMIC STATUS OF BIRBAL KHAIRWAL, SUNIL KHAIRWAL (A-2) AND OTHER PERSONS WHO ARE ALLEGED TO BE HOLDING CERTAIN PROPERTIES MENTIONED IN THE CHARGE-SHEET ON BEHALF OF C. S. KHAIRWAL (A-1).
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 63 of 30963.As per allegation in charge-sheet, economic status of Birbal Khairwal [father of C. S. Khairwal (A-1)], Sunil Khairwal (A-2), daughter and wife and other relatives of C. S. Khairwal (A-1) has been shown as they were poor person and their economic status was not very sound as well as their earning prior to start of check period i.e., 16.07.1974 was not very good. It is alleged that Birbal Khairwal, father of C. S. Khairwal (A-1) who used to rear goats and land holding in his hand was not much and whatever holding he was having in his hand or his family, was not sufficiently earning such income which could correspond to purchasing of huge assets, as reflected in the charge-sheet, alleged to be disproportionate to the income of A-1. In this regard, prosecution has examined a number of witnesses.
64.PW-6 Govind Singh Khairwal is stated to be cousin of A-1 who is son of elder brother of his father and was Sub-Inspector in Delhi police. With regard to financial status of Birbal Singh and his son Charan Singh Khairwal (A-1), he has not thrown much light. PW-6 has stated that Birbal Khairwal had three son namely Charan Singh Khairwal (A-1), Panna Lal and Hari Prasad. He had two daughters namely Tulsa Devi and Kampoori Devi. Tulsa Devi is stated to have married one Prabhu, who used to sell bangles. Kampoori Devi is stated to have married Roopram.
65.PW-6 has stated that he had not seen Birbal Khairwal or any of his dependent children rearing sheep or goat in their village. PW-6 has stated that Panna Lal, S/o Birbal and other brother of C. S. Khairwal (A-1), namely Hari Prasad used to sell vegetables at CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 64 of 309Naroji Nagar and Sarojini Nagar. Chote Lal is stated to be the father in law of PW-6. PW-6 had no idea about the source of income of Chote Lal, his father in law. It is however, stated that he used to sell fruits and vegetables on rehri (cart). PW-6 has stated that Charan Singh initially worked at Indian Oil Corporation. PW-6 has stated that his father Sibhu Ram, brother of Birbal Singh, was employed in Indian Airlines.
66.This witness did not support the story of prosecution, therefore, he has been declared hostile. During his cross examination by CBI, PW-6 stated that Birbal Singh, father of C. S. Khairwal (A-1) used to sell vegetables as hawker at Sarojini Nagar, thereafter at Naroji Nagar. PW-6 has admitted the fact that Birbal Singh and his son Panna Lal and Hari Prasad along with Tulsa Devi (sister of A-1) were living together. PW-6 has stated that he had not seen Birbal Singh or any of his dependent children rearing sheep or goat in their village. PW-6 has further stated that he is married to sister of Smt. Angoori Devi, W/o A-1. PW-6 has stated that when A-1 was working at SOC, he used to live at government accommodation at Sena Nagar and Birbal Singh his father used to stay in his shop.
67.PW-6 has denied the story of prosecution that Shiboo Ram had given loan to Birbal Khairwal or his son Panna Lal and Hari Prasad. PW-6 has further stated that he knew Tulsa Devi, Hukam Singh, Yashpal, Mukti Devi (Guthrie Devi), Bhori Lal, Smt. Kampoori Devi, Sunil Kumar and Santra Devi. PW-6 further stated that he had never seen the Will of late Birbal nor he is able to CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 65 of 309identify his handwriting or signature.
68.It is stated by PW-6 during his cross-examination that, it is not in his knowledge that his father had purchased a land measuring 4.38 hectors from Ram Charan, Daya Ram, Dupi residents of village Mau Ibrahim Khurd or the sale deed was registered on 03.08.1994 in the office of Sub-Registrar, Hindon. PW-6 has categorically stated that if his father had purchased the land it would be in his knowledge as he was the only son and only legal heir. PW-6 has stated that this land was not in his possession. PW-6 has further stated that he had no knowledge about sale deed marked as 'Mark X (D-226)'.
69.With regard to Will executed by Birbal Khairwal in favour of his relations marked as 'Mark X-1' (D-234), PW-6 has not identified and acknowledged this document. PW-6 has further stated that Birbal Khairwal did not own any shop in village Mau Ibrahimpur. PW-6 has categorically stated that he was aware that accused C.S.Khairwal had purchased a land in Village Khirki but he was not aware in whose name the documents were executed.
70.With regard to source of income of Birbal Khairwal, father of C. S. Khairwal (A-1), it is stated by PW-6 that his source of income was income earned from vegetable shop at Naroji Nagar. PW-6 has been confronted with his statement recorded under Section 161 Cr.P.C, however, he has denied all such suggestions that he has stated all such facts before the IO at the time of recording of his CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 66 of 309statement by him vide which he has been confronted with.
71.During his cross-examination on behalf of C. S. Khairwal (A-1), PW-6 has stated that Birbal Khairwal and his sons were living in joint family. PW-6 has stated that he had no knowledge about the investment made by his father and he was aware about only those investments which were shared by his father with him. This witness has not been cross examined on behalf of A-2.
72.PW-7 Vladivostok, is stated to be Retired Superintendent in a school at Moti Bagh in the year 1995-1996. He knew C.S.Khairwal (A-1) since he was the SUM of Patel Nagar. PW-7 has expressed his ignorance about purchasing a plot of land at village Kishangarh by C. S. Khairwal (A-1) in the name of K.C.Sharma (A-3) (since deceased) or whether C. S. Khairwal (A-
1) had a commercial complex or running any departmental store through K.C.Sharma (A-3) (since deceased) or having any motorcycle agency or C. S. Khairwal (A-1) having any flat at East of Kailash or having any land at Chandigarh or C. S. Khairwal (A-
1) had purchased any land at Mehrauli.
73.This witness, again, was found resiling from his statement under Section 161 Cr.P.C therefore, has been cross examined by Special PP CBI. PW-7 expressed his ignorance about purchase of land at Village Kishangarh or purchase of plot F-85, East of Kailash or purchase of land at Chandigarh through Gyan Chand Sharma by C.S.Khairwal (A-1).
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 67 of 30974.PW-8 Vinod Mishra, is stated to be known to Abha Tyagi. PW-8 has stated that he used to work with K.C.Sharma (A-3) (since deceased), father of Abha Tyagi. PW-8 has stated that he do not know C. S. Khairwal (A-1) and has never met him nor seen him. This witness again did not support the story of prosecution hence has been declared hostile. This witness has not supported the story of prosecution at all.
75.PW-13 Mohan Singh is friend of C. S. Khairwal (A-1). He has stated that A-1 has two brothers and two sisters namely C. S. Khairwal (A-1) himself, Panna Lal and Hari and one of the sister Kampoori Devi. PW-13 has stated that financial condition of Kampoori Devi and her husband was good. They had pucca house.
76.With regard to father of C.S.Khairwal (A-1) namely Birbal, PW-13 has stated that he used to do agriculture and rear cattle i.e. sheeps and goats which was a good business. Accused C. S. Khairwal (A-
1) came to Delhi in 1963 and did service in CPWD, Faridabad. Birbal also came to Delhi in the year 1964. Birbal had pucca shop in Sarojini Nagar market and had a business of selling vegetables and fruits. C.S.Khairwal (A-1) married Angoori Devi, who was resident of Toda Bhim, Rajasthan and financial position of parents of Angoori Devi was good.
77.PW-13 has stated that C. S. Khairwal (A-1) joined IAS in the year CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 68 of 3091974. PW-13 joined as Sub-Inspector in Delhi Police in 1969. PW-13 has further stated that at the time of selection of accused C. S. Khairwal (A-1) as IAS, his father used to sell vegetables and fruits in a shop at Sarojini Nagar. Other brothers of C. S. Khairwal (A-1) used to help his father in vegetable business. Panna Lal brother of C. S. Khairwal (A-1) was also having his own business of selling vegetables and fruits.
78.PW-13 has further stated that Panna Lal, brother of C. S. Khairwal (A-1), had buses attached with Government of Rajasthan. Panna Lal and Birbal used to reside at R. K. Puram in the year 1974 and 1975. PW-13 has expressed his ignorance that C. S. Khairwal (A-
1) had purchased any property at Jaipur or Rajasthan. PW-13 has stated that C. S. Khairwal (A-1) had purchased a plot at Devi Chiranjeev Colony, Tope Khana, Grah Nirman Society, Jaipur ad- measuring 350 square yards. PW-13 has stated that in February, 1984 he joined transport department where accused C. S. Khairwal (A-1) was Director, Transport Delhi.
79.PW-13 further stated that C. S. Khairwal (A-1), remained posted as Secretary Services, Secretary PWD, Secretary LSG and also Commissioner/Secretary in Transport Department Delhi. PW-13 became enforcement officer in Transport Department Delhi Administration in the year 1998.
80.This witness was found resiling from his statement under Section 161 Cr.P.C recorded by IO as he did not supported the story of CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 69 of 309prosecution any further. Hence, he has been declared hostile and has not supported the story of prosecution and facts pertaining to charges of corruption against C.S. Khairwal (A-1). PW-13 however, has admitted that there was a double storey house at village Mau Ibrahimpur constructed by father of C. S. Khairwal (A-1) prior to 1986.
81.PW-13 has further stated that a plot ad-measuring around 2000 square yards was allotted to accused C.S.Khairwal (A-1) by Panchayat of Village Mau Ibrahimpur. PW-13 had expressed his ignorance as to who constructed the boundary wall over it or constructed shops in his village Mau Ibrahimpur. PW-13 has stated that status of sister of C. S. Khairwal (A-1) namely Kampoori Devi and her husband Roop Ram was good. With regard to Panna Lal, brother of C. S. Khairwal (A-1), PW-13 stated that he had a liquor shop in Hindon City prior to 1994 and he was involved in wholesale business of vegetables and fruits. Another sister of C. S. Khairwal (A-1) namely Tulsa Devi was doing the business of vegetables and fruits and her financial condition is good.
82.PW-38 Rajinder Kumar Nagar, who runs a restaurant at Saket and also started offset printing work in the year 1991, stated to be living in a joint family along with his father Kalyan Singh Nagar, who has been examined as PW-28 is another witness examined by prosecution. PW-38 has stated that all the jewelery articles of family members remained in the possession of his father Kalyan Singh Nagar and whenever entire family would go out of Delhi, he CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 70 of 309used to keep the jewelery with his friend. PW-38 identified signature of his father on memo Ex.PW5/B but did not identify his own signature.
83.This witness was found resiling from his statement, therefore, has been declared hostile and was cross-examined by Ld. Special PP for CBI. During his cross-examination by prosecution he stated that his father was inquired by CBI regarding his friend C.S.Khairwal (A-1). His father told him that he was taken by CBI officials to the residence of Om Prakash where his jewelery items were seized by CBI. His father also told him that CBI had also taken him to the residence of Khushi Ram at Inderpuri where cash amount of Rs. 6 Lakh belonging to his father was seized by CBI official. PW-38 has stated that C. S. Khairwal (A-1) used to visit his family frequently. This witness has not supported the story of prosecution at all.
84.During cross-examination of PW-38, on behalf of A-1, it is stated by PW-38 that C. S. Khairwal (A-1) was residing with his father. Similarly, prosecution has examined PW-68 Ram Dhan, PW-69 Shiv Dayal, PW-70 Shiv Charan who are known to C.S. Khairwal (A-1). These witnesses were found to be resiling from their statement under 161 Cr.P.C., therefore, they have been declared hostile. During their cross-examination, they have not supported the story of the prosecution at all.
85.Next witness examined by prosecution is PW-76 Bhupinder Singh CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 71 of 309Solanki is an agriculturist having 70 bighas of agricultural land in Mau Khas and village Ghosala. This witness has been examined with regard to amount spent on agricultural per bigha during rabi season. It is stated by PW-76 that an amount of Rs.8,000/- to Rs.10,000/- per bigha is spent on cultivation and during kharif season it may go upto Rs.12,000/- to Rs. 15,000/- per bigha.
86.During his cross-examination, it is stated by PW-76 that family of Birbal Khairwal was rich who was having 7 shops in the village and collecting rent therefrom. It is further stated that after the death of Birbal Khairwal, accused Sunil Khairwal (A-2) is looking after the agricultural land and shops owned by him.
87.PW-85 Gian Prakash Sharma knew C. S. Khairwal (A-1) since his college days and well acquainted with him. It is stated by PW-85 that during the year 1984, Birbal Khairwal had purchased some land in East of Kailash. PW-85 stood witness to agreement to sell exhibited as Ex.PW11/A (D-265), GPA Ex.PW11/B and Ex.PW11/DB. He also stood witness with regard to dispute of common passage Ex.PW44/1 and Ex.PW 44/2 (D-270). These documents bear his signature.
88.It is stated by PW-85 that during year 1992-93, he went to meet Tek Chand Sharma, resident of Fatehpur Beri in which Mr. Tek Chand Sharma took Rs.1,00,000/- from K. C. Sharma (A-3) (since deceased) with respect to some dispute regarding passage. This witness was found to be resiling from his statement under 161 CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 72 of 309Cr.P.C., therefore, has been declared hostile. During his cross- examination, this witness did not support the story of prosecution any further and denied that he knew K.C.Sharma (A-3) (since deceased), father of Abha Tyagi.
89.PW-86 Ram Karan was examined to ascertain the sale of land in their village and post office Mau Khas Tehshil Hindon, District Karoli, Rajasthan. It is stated that he received Rs. 30,000/- as his share in the sale of land vide Ex.PW86/1 dated 03.08.1994 which was sold by his brother Daya Ram. This witness was found to be resiling from his statement under 161 Cr.P.C., therefore, has been declared hostile. During his cross-examination, he has not supported the story of the prosecution at all.
90.PW-107 Sh. Puranmal Sharma is contractual postman in Ghosla Post Office, Mau Ibrahimpur, Rasjasthan. He knew Charan Singh (A-1) being native of same village. He also knew father of A-1 who was an agriculturist and also having sheeps and goats. This witness has stated that there was no shop in their village by the name of "Ram Narayan Badri Prasad Barigamwal".
91.PW-107 during his cross-examination has stated that father of A-1 was having five shops near bus stand village Mau Ibrahimpur, Rajasthan and two shops in village.
92.PW-118 Satish Bansal was having an Oil Mill namely Bansal Oil Mill in the year 1996-97. It is stated that there were only two mills CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 73 of 309in village Mau Ibrahim Pur, namely Bansal Oil Mill and Kajod Mal Gopal Dass Oil Mill. This witness has not been cross examined by the accused persons.
93.PW-46 Atma Ram Singhal, he is retired Government Servant, who retired in February, 1998 as Assistant Director from Department of Industry, GNCT. He identified the signature of O.P. Sachdeva, Deputy Director (Land), Department of Industry, GNCT on letters and annexures exhibited as Ex.PW46/1 (D-70) containing details of payment made by allottee regarding payment of rent. PW-46 has stated that Flat C-11, Jhandewala was allotted to Sunita Khairwal, which was subsequently transferred at her request in the name of Sunil Khairwal (A-2) on 05.08.1993. No material contradiction has emerged from the cross examination of this witness.
94.PW-80 Ghanshyam Aggarwal was Naib Tehshildar in Tehshil Hindon, District Sawai Madhopur, Rajasthan. He handed over certain documents vide production memo dated 14.05.1997 Ex. PW 80/1(D-225) which is containing copy of five year cattle census of 1977 and 1992 in respect of Mau Ibrahimpur and other villages which is Ex. PW80/2 (D-225).
95.PW-81 Devinder Kumar Sharma was Superintendent in ESIC, Jaipur in 1996, who was part of a search conducted at a residential house in Jaipur. No material contradiction has emerged from the cross examination of this witness.
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Page No. 74 of 30996.PW-92 Hari Mohan Gupta was Inspector CBI, Jaipur who conducted search along with two witnesses at Jaipur vide search memo dated 19.02.1996 exhibited as Ex.PW92/1 (D-59). This witness has not been cross examined by A-1.
97.PW-135 Rakesh Koli has been examined to prove the fact regarding death of Birbal father of C. S. Khairwal (A-1) who is stated to have expired on 23.01.1988. This witness brought concerned register, copy of which is Ex.PW135/1. The exhibit mark of this document though, was disputed on behalf of accused persons, however, the death of Birbal on 23.01.1988 has not been disputed, as per record.
DEFENCE EVIDENCE
98.C. S. Khairwal (A-1) has examined D1W1 Sunil Kumar Jain from Ministry of shipping Government of India, who brought the record which was sought by C. S. Khairwal (A-1) under RTI Act which is Ex.D1W1/A and Ex.D1W1/B (colly.). As per D1W1/B (colly.), C.S.Khairwal (A-1) had intimated that he had a fixed deposit of Rs.37,620/- with Syndicate Bank, Transport Bhawan Branch, Delhi pertaining to his visit to Neitherlands from 08.11.1995 to 14.11.1995.
99.D1W2 Shrikant Kumar, is another witness examined by C. S. Khairwal (A-1), who brought the record, i.e. reply given to RTI application i.e., Ex.D1W2/A and the relevant record so given in CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 75 of 309response to this application is Ex.D1W2/A-1 and certified copy of reply is Ex.D1W2/B. As per the reply, Ex.D1W2/B it is mentioned that the subject matter does not pertain to cash section as no payment was made by Cash Section. Thus, no information regarding appointment of Architect for preparation of Model of Rapid Transport System for Delhi during the year 1993-1996 has been furnished.
100. Next witness examined by C. S. Khairwal (A-1) is Ms. T. H. Lianboi, D1W3 who like above mentioned witnesses brought record pertaining to RTI application filed by C. S. Khairwal (A-1). Application under Section RTI act is D1W2/A. The reply is exhibited as Ex.D1W3/A . This witness has stated that the record sought by the applicant was not available in their Transport Section.
101. Similarly, Vimal Rai D1W4 is also from transport department who brought record pertaining to vehicle No. DL 1CD 7420 a TATA vehicle registered in the name of M/s Unichem Laboratories on 11.01.1995. It is stated by this witness that NOC with regard to this vehicle was given by the department on 03.11.2004.
102. It is important to mention here that PW-2 has also been examined by prosecution in this regard who has expressed his ignorance about the subsequent purchaser of the vehicle.
103. Next witness examined by C. S. Khairwal (A-1) is Raj Kumar CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 76 of 309D1W5, who brought record pertaining to salary of Sunita Khatolia, who is stated to be working with their organization namely Delhi SC/ST/OBC Minorities and Handicapped Financial and Development Corporation Ltd. from May 1991 to February 1996 showing that she had drawn net salary of Rs.1,87,791/-.
104. D1W6 is Amaan Sahil, from Bennett Colmen & Company Ltd., who deposed that the record which was sought to be summoned by him was destroyed.
105. D1W7 is Dharamjeet from ITAT, who brought original order dated 19.01.2007 passed by ITAT, which is Ex.D1W7/A.
106. D1W8 is Rajesh Shankar, from Service-I Branch from Service Department who brought record pertaining to service record of C. S. Khairwal (A-1) regarding two intimations dated 30.09.1986 given by him. Intimations are exhibited as Ex.D1W8/D-1. This witness has further submitted the record with regard to acceptance dated 25.05.1990 of the intimations dated 12.05.1989 and 21.05.1990 given by C. S. Khairwal (A-1). This witness also placed on record copy of acceptance dated 26.10.1990 of the intimation dated 08.10.1990 given by him. This witness further submitted the copy of acceptance dated 13.09.1990 of intimation dated 31.08.1990 as well as copy of acceptance dated 10.01.1989 of intimation dated 29.12.1988 given by him.
107. D1W9 Raj Kishan Vats, Department of Personnel and Training CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 77 of 309brought record containing all the note-sheets during the processing of request seeking sanction which is Ex.D1W9/A.
108. D1W10 is Kailash Chand Yadav, Assistant Public Health Inspector, SDMC, Lajpat Nagar, New Delhi who brought record pertaining to date of birth of female child of C. S. Khairwal (A-1) and Angoori which is as per register is 12.01.1972 and registration has been done on 18.01.1972.
109. D1W11 is Satish Chand Mittal from Nagar Nigam, Bharatpur Rajasthan who brought record pertaining to death of Birbal Khairwal and stated that date of death of Birbal Khairwal is 20.01.1988.
110. D1W12 is Munish Chabra, Branch Manager, LIC who was asked to bring record pertaining to LIC policy in the name of C. S. Khairwal (A-1), however, the said record was not available as could not be traced.
111. D1W13 is Shobha Bhartwal, Assistant Ahlmad in the court of Sh.Gagandeep Singh, Ld. MM -09, Saket District Courts. She brought record pertaining to FIR No. 156/96, PS - Defence Colony, Under Section 61/1/14 Excise Act titled as 'State Vs. Charan Singh and Anr.'. This witness certified that copy of Order on Charged dated 21.10.1998 was correct as per their record, which is Ex.D1W13/A. It is further stated that the matter has been finally adjudicated on 30.05.2018, whereby Abha Tyagi had pleaded guilty CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 78 of 309and she was convicted.
112. D1W14 is Ms. Shampa Dass, Section Officer, Personal Department, Arunachal Pradesh. She brought record pertaining to application 12.08.1987 and intimation of C.S.Khairwal (A-1) dated 29.12.1987. This intimation is regarding sale of flat at Delhi for an amount of Rs. 2,75,000/-. It is further intimated by C. S. Khairwal (A-1) that after death of his mother in June, 1987, his wife has got a share in ornaments. The value of which is mentioned as Rs.60,000/- to Rs.70,000/-.
113. D1W15 S.Devnath, UDC, Chimpu, Itanagar, Arunachal Pradesh. He brought record pertaining to meeting attended by C.S.Khairwal (A-1), relating to Managing Committee of the Sports Council held on 30.09.1988. The original record pertaining to meeting and payment of honorarium was not being available being old record.
114. Sunil Khairwal (A-2) has also examined two witnesses in defence evidence.
115. D2W1 Raghubir Singh brought record pertaining to order dated 13.11.2003 passed in ITA which is exhibited as Ex.D2W1/A. Similarly, another witness examined by Sunil Khairwal (A-2) is D2W2 Sandeep Pal, who brought record pertaining to order dated 21.07.2005. The original record was stated to have been destroyed.
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Page No. 79 of 309116. As per the case of prosecution, it has been alleged that it was C.S.Khairwal (A-1) who after joining his service has misused his official position and collected unaccounted money not from lawful sources and has purchased a number of movable and immovable properties not only in the name of his father Birbal Khairwal but also in the name of his son Sunil Khairwal (A-2), daughters, sisters, brothers and other relatives. One of the ground of allegation upon C. S. Khairwal (A-1) is that Birbal Khairwal, father of C. S. Khairwal (A-1) was not having sufficient income and was a poor person.
117. The charge-sheet says that he was a poor person who used to reside at his native village in Rajasthan and who used to rear goats and cattle. His income from all the sources was meager and not sufficient even to support him that is why he was not in a position to purchase any property either in his name or in the name of his son C.S.Khairwal (A-1) or Sunil Khairwal (A-2) his grand son.
118. The Will dated 17.09.1987 is also disputed by the prosecution that it is a forged and fabricated document and has been manipulated to create an evidence in favour of C.S.Khairwal (A-1) and Sunil Khairwal (A-2). The observation relating to the Will in question being manipulated will be made in the subsequent para, however, the point under consideration at this stage is the economic status of Birbal Khairwal and other family members and relatives of C.S.Khairwal (A-1). All the above mentioned witnesses examined by the prosecution do not support their story. They have either been declared hostile or have not brought any evidence or CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 80 of 309document on record to show that Birbal Khairwal, father of C. S. Khairwal (A-1) was a poor person.
119. C.S.Khairwal (A-1), on the other hand has lead his evidence in defence in this regard showing that he has been disclosing the movable and immovable properties received by him from time to time by bringing on record his service book which is not disputed by the prosecution nor the service record and the relevant intimations from time to time have been disputed by the prosecution and IO PW-143. Therefore, in the absence of any evidence to the contrary, in my considered opinion, it cannot be presumed that Birbal Khairwal was not a man of good means or he was a poor person who was solely dependent upon the meager income earned by him by rearing goat and cattle only and the land holding in his name was not sufficient by which he could earn any sufficient income.
120. C. S. Khairwal (A-1) on the other hand has shown from the record itself and his defence witnesses that Birbal Khairwal was not a poor person. Another thing have been reflected from the documents filed by the prosecution itself that native village of C. S. Khairwal (A-1) and Birbal Khairwal is near Jaipur, Rajasthan and he is not only having some ancestral agricultural land in his name but also have certain shops which are rented out. Thus, in my considered opinion the prosecution has been failed to prove the fact that Birbal Khairwal was not a man of good means or that he was a poor person.
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Page No. 81 of 309
121. With regard to economic status of other persons i.e.
daughters, wife, other relatives of C. S. Khairwal (A-1), prosecution has not lead any evidence to show that they all were either dependent on C. S. Khairwal (A-1) or they were not having sufficient means and earning and whatever property as mentioned in the charge-sheet, movable and immovable, was held by them on behalf of C. S. Khairwal (A-1). Averments in the charge-sheet in this regard are oral and PW-143 who is IO of the case have not supported the submissions with documentary evidence that other family members and relative of C. S. Khairwal (A-1) besides his father Birbal Khairwal, were not having sufficient means that they could hold such properties, movable and immovable standing in their name as mentioned in the charge-sheet as benami of C.S. Khairwal.
PLEA OF BENAMI TRANSACTION.
122. In this regard, it is important to mention here that prosecution has examined 143 witnesses out of 295 listed witnesses. Out of these 143 witnesses, 41 witnesses have turned hostile. Witnesses from CBI pertaining to conducting raid at various places of relatives of C. S. Khairwal (A-1) are PW-3 Rajeev Chaddha who deposed regarding search at the house of Kampoori Devi, sister of C. S. Khairwal (A-1). Similarly, PW-138 R.V.S.Lohmor was witness to search conducted by him along with PW-139 Arvind Kumar Kapoor, PW-140 Prabhat Chand Sharma and PW-141, PW-
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 82 of 309142 and PW-143 IO S.K. Peshin. Along with these witnesses from CBI who conducted search, PW-136 Tarini Prasad Jha, PW-121 Ashok Kumar, PW-120 Yashpal Sharma, PW-116 Kehan Lal, PW- 115 Bharat Bhushan, PW-113 Preetpal Singh, PW-102 J. C. Sachdeva, PW-50 Sanjay Anand, PW-22 Girish Chand and PW-23 Gurmeet Singh have been examined. It is important to mention here that facts pertaining to search conducted at various places as mentioned in the charge-sheet have not been disputed by accused persons, which is a matter of record.
123. PW-4 Twinkle Tyagi, W/o Ajay Tyagi and PW-47 N. D. Tyagi have been examined by the prosecution pertaining to K.C.Sharma (A-3) (since deceased) who have turned hostile and have not supported the story of prosecution.
124. With regard to proving transaction pertaining to bank, as much as 24 witnesses have been examined exclusively from various banks. PW-15 S. Jagannath Shetty from Vijaya Bank deposed with regard to account No. 5763 maintained by C. S. Khairwal (A-1) as well as account No. 9111 in the name of M/s Birbal Charitable Trust and FDRs. PW-16 Brij Bhushan Sharma from PNB deposed pertaining to account No. SF20140 in the name of one Giri Raj Rajoura. PW-17 Anil Kumar Jain from PNB deposed pertaining to account No. 17924 in the name of Rajesh Kumar. PW-78 R. K. Aggarwal from Syndicate Bank deposed pertaining to statement of account relating to Sunil Khairwal (A-2). PW-79 Manmohan Mehrotra from Allahabad Bank sought to prove payment made from current account No. 699 of M/s Smriti Marketing CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 83 of 309Communication to M/s Puneet Cooperative Group housing Society.
125. It is the case of prosecution, as mentioned above, that A-1 has misused his official position and collected huge amount by adopting illegal practices and the income so earned by him not from lawful sources has been converted into various immovable properties and movable properties as mentioned in the charge-sheet and has also incurred expenses from such income which is not from lawful sources. It has been specifically alleged by prosecution that A-1 has been holding a number of properties movable and immovable in the name of his family members, relatives and other persons.
126. In this regard reference can be laid upon a landmark case. It has been held in State of Karnataka Vs. J. Jayalalitha & Others, (2017) 6 Supreme Court Cases 263 while discussing the case of State of MP vs. Shambhu Dayal Nagar, (2006) 8 SCC 693 and Subramanian Swamy Vs. CBI, (2014) 8 SCC 682 and various other cases, that corruption in a civilized society is a disease like cancer, which if not detected in time is sure to afflict the polity of the country leading to disastrous consequences. Corruption is like a plague which is not only contagious but if not controlled spread like a fire in a jungle. Corruption is opposed to democracy and social order, being not only anti people but aimed and targeted against them. It affects the economy and destroy the cultural heritage and therefore, unless it is nipped in the bud at the earliest, it is likely to cause turbulence shaking the socio economic politic system in an otherwise healthy, wealthy, effective and vibrating CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 84 of 309society. It has been further held in J. Jayalalitha's case (Supra) that:-
"It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. The burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. However, such difficulties do not relieve the person asserting the transaction to be benami, of any part of the serious onus that rests on him nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact and for determining this question, no absolute formula or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by the following circumstances:(1) the source from which the purchase money came; (2) the nature of possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Thus, there has to be either some direct evidence or strong circumstantial evidence to raise an inference that the property alleged to be benami had been purchased with the funds/resources of someone other than the person in whose name the property is shown in the document. (Para 252) It has been further held that:
Scheme of PC Act is to ensure stricter legislation to eradicate corruption.
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The Preamble of the PC Act, 1947 manifests that it is a legislation with the objective of enhanced effective prevention of bribery and corruption. Its Statement of Objects and Reasons demonstrates, it was impelled by the felt necessity for curbing bribery and corruption of public servants which noticeably had enor Mau sly increased by the war conditions, lingering at that point of time. The post-war fallouts bearing on large amounts of government surplus stores and b related disbursement of large sums of government money, visibly facilitated wide scope for corrupt practices, which necessitated immediate and drastic initiatives to stamp out the said malady. As the existing law proved to be inadequate to tackle the sprawling menace, the legislation was enacted.(Para 152) The 1947 Act was succeeded by a new version of anti- corruption law in the form of the Prevention of Corruption Act, 1988, which seeks to consolidate and c amend the law relating to the prevention of corruption and for matters connected therewith. The statute, as the prefatory introduction thereof authenticates, retraced the evolution of the law regarding the offence of bribery and corruption amongst public servant, starting from the Penal Code to the 1947 Act seeking to respond to the exigencies of time, precipitated by the post-World War II manifestations. Having felt that even the 1947 Act had proved to be inadequate to deal with the d offence of corruption effectively warranting a result-oriented legislation, the 1988 Act was ushered in amongst other by widening their coverage and re-enforcing the provisions thereof. The Bill as a precursor of the 1988 Act was introduced in Parliament with these objectives. (Para 156) The scheme of the 1988 Act, thus ensures a stricter legislation to combat and eradicate corruption in public life and takes within its sweep, not only the public servants but also those who abet and conspire with them in the commission of offences, enumerated therein. The avowed objectives of the statute prompted by the compelling exigencies of time and the revealing contemporary realities, thus demand of a befitting curial approach to effectuate the same sans qua the rule of benefit of doubt on intangible and trivial omissions and deficiencies. (Para 166) The Statement of Objects and Reasons of PC Act, 1988, while reiterating the above mission, referred to the provisions in Chapter IX of the Penal Code, dealing with public servants and those who abet the offences mentioned therein, by way of criminal misconduct. The CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 86 of 309
provisions in the Criminal Law Amendment Ordinance, 1944 enabling attachment of ill-gotten wealth, obtained through corrupt means, g was also adverted to. The Bill was clearly contemplated to incorporate all these provisions with necessary modifications, so as to make those more effective in combating corruption amongst public servants. With that end in view, the ambit of "public servant" was sought to be expanded. Additionally, the offences hitherto enumerated in Sections 161 to 165-A IPC were recommended to be incorporated in the legislation with enhanced penalties. Finality of the order of the trial court h upholding the grant of sanction for prosecution and provision for day-to-day trial of cases were also integrated as few other unique features of the initiative. (Para 157)
127. With regard to immovable properties, a list of immovable properties which are alleged to have been purchased by C. S. Khairwal (A-1) either in his name or in the name of Sunil Khairwal (A-2) or in the name of close family members, is provided in charge-sheet. It is stated on behalf of C. S. Khairwal (A-1) that as per list, except property mentioned at Sr. Nos. 1 and 10 which is admitted and not disputed by C. S. Khairwal (A-1), other properties are denied to have been linked with C. S. Khairwal (A-1) by him. The value assigned to property No.1 is Rs.4,155/- and value assigned to property No. 10 is Rs.2,30,000/-.
128. At the outset, it is mentioned that all the immovable properties mentioned in the charge-sheet shall be taken up one by one along with arguments on behalf of accused persons as well as evidence led by prosecution and documents in support therewith in the subsequent paras.
ARGUMENTS ON BEHALF OF C. S. KHAIRWAL (A-1) CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 87 of 309129. It has been argued on behalf of C. S. Khairwal (A-1) that properties mentioned in FIR reflects their values against them which is highly exaggerated and not correct. Charge-sheet at its page No. 15 provides the list of properties. The valuation of properties reflecting in FIR and charge-sheet are different. There are certain properties which are mentioned in FIR, however, have not been included in the charge-sheet. After registration of FIR, various raids were conducted. C. S. Khairwal (A-1) was arrested from airport. He was appointed as observer at Tamil Nadu as Elections for Rajya Sabha was going on, however, it was shown that he was evading his arrest and was about to flee to some unknown place. C.S.Khairwal (A-1) just after his arrest was taken to his residence, thus he cannot be said to be aware about the registration of FIR against him. If this fact would have been within his knowledge that an FIR is going to be or has been registered against him then he could have tried to evade his arrest, however, he was on official visit at the time of his arrest.
130. Allegations against C.S.Khairwal (A-1) are that he had tried to tamper with the evidence and conceal all the incriminating material against him so that raid conducted in this regard could not be conducted. The timing of FIR, arrest of accused and his bringing to his residence, reflects no scope vide which he could be said to have influenced the witnesses and tamper with the evidence or instruct any of his associate and family members to remove all the material piece of evidence against him.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 88 of 309131. It is stated that there are no parameter to assess the value of movable and immovable properties. Market value of the movable and immovable properties have been taken and the criterion of taking the market value is arbitrary and the witness so examined in that regard had not been able to justify the assessment of value asses of all such movable and immovable properties as mentioned in the charge-sheet. It is stated that these is no arrest memo of C. S. Khairwal (A-1), his income has been deliberately reduced and has been shown as minimum as it could be and on the other hand his assets and expenditures have been shown at higher exaggerated value having been increased manifold. It is further stated that if it was so, none of the relatives have been arrayed as abettor or accomplice. It is stated that presumption laid down under Section 20 of PC Act is not available to Section 13 (1) (e) of PC Act, thus at the most the case of prosecution against C. S. Khairwal (A-1) is based on circumstantial evidence.
132. Accused has not disputed the ownership of properties as per record. The objection taken by both the accused persons with regard to properties are assigning the source of their procurement of such properties and linking them to C. S. Khairwal (A-1). It is stated that mere averment that C. S. Khairwal (A-1) had funded and sources the procurement of all such properties movable and immovable as mentioned in the charge sheet is not sufficient, it should have been supported with material evidence supported with the evidence of funding or transferring the money for purchasing the property. The prosecution has miserable failed in establishing any such link that these properties alleged to be benami was CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 89 of 309sourced and funded by C. S. Khairwal (A-1).
133. The essential requirement of benami properties is the 'holding'.
None of the properties have been found in actual possession of C. S. Khairwal (A-1). The prosecution has to show that someone else was holding the property on behalf of C. S. Khairwal (A-1), however, the testimony of prosecution witness failed to establish this important fact that all the properties alleged to be benami were held by such persons on behalf of C. S. Khairwal (A-1). There is no recovery of any of such immovable property from the possession of C. S. Khairwal (A-1). Thus, there can be no presumption in favour of prosecution regarding benami property. In this regard, A-1 has relied up one judgment titled as Sharad Birdi Chand Vs. State of Maharashtra, [1985] 1 SCAR 88 in which it has been held that, hearsay evidence is not admissible in evidence and cannot be said to be relied unless it is corroborated with substantive piece of evidence.
134. As per explanation of Section 13 (1) (e) of PC Act, it is required to explain the "known source of income", however, IO had not asked for explanation for income of C. S. Khairwal (A-1). If explanation from C. S. Khairwal (A-1) would have been called at the time of investigation or filing of charge sheet then C. S. Khairwal (A-1) would be having an opportunity to explain all the facts in detail regarding holding of the properties.
135. It is stated that when an application under Section 294 Cr.P.C CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 90 of 309was filed seeking admission denial of documents there are number of documents which are submitted by C.S. Khairwal (A-1) and Sunil Khairwal (A-2) have not been denied. Therefore, all such documents which are available along with the application under Section 294 Cr.P.C and not denied or disputed by CBI are reflecting an evidence in support of C. S. Khairwal (A-1) and Sunil Khairwal (A-2) that they have explained the holding of the properties in the name of registered owners as well as the fact pertaining to income of C. S. Khairwal (A-1) have been explained in detail and if all such aspects are considered then the explanations and assets which have been forcefully assigned to C. S. Khairwal (A-1) will come down to a minimum level, which would be very much within he permissible limit.
136. It has been argued on behalf of C. S. Khairwal (A-1) that Abha Tyagi has been discharged in concerned case. Various cases were registered against C. S. Khairwal (A-1) after registration of this FIR, however, there is no alleged transaction or any material brought on record by the prosecution that any money was routed from C. S. Khairwal (A-1) to other accused persons or any other person which could be utilized in amassing immovable properties and wealth as alleged. C. S. Khairwal (A-1) was not having any bank account in Oriental Bank of Commerce. Most of the payments are made through bank, however, all these transactions are not linked by CBI to C.S.Khairwal (A-1).
137. Two type of properties have been alleged to have been attributed to C. S. Khairwal (A-1), movable and immovable. C. S. CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 91 of 309Khairwal (A-1) had submitted certain documents showing properties of 14 Lakh which has been admitted by the CBI, however, benefit of this aspect is yet to be assigned to the accused finally. CBI has suppressed a number of documents submitted by C. S. Khairwal (A-1) and Sunil Khairwal (A-2) which have not been forming part of charge-sheet.
138. With regard to death of K.C.Sharma (A-3), one of the accused, it is stated that there are number of allegations that K. C Sharma was working for and on behalf of C.S.Khairwal (A-1) and certain properties of C. S. Khairwal (A-1) are held by K.C.Sharma (A-3) (since deceased) as benami either in his name or in the name of his daughter Abha Tyagi. As K.C.Sharma (A-3) (since deceased), who has been arrayed as an accused in this case has already expired, therefore, all such allegations which has been level against him cannot be said to be established and if it is considered accordingly, then all such allegations relating to K.C.Sharma (A-3) (since deceased) also cannot be said to be established against other accused persons as these allegations have been directly attributed to him, who has expired and proceedings are stated to have been abated against him. Therefore, there is no occasion to counter or rebut all such allegations from the side of K. C. Sharma. It is stated that once there has been no opportunity from the side of K. C. Sharma as the proceedings being abated, then all such allegations cannot be attributed and linked in same manner to C. S. Khairwal (A-1) and Sunil Khairwal (A-2).
139. In this regard, it is stated that there are a number of witnesses CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 92 of 309who have given their statement under Section 161 Cr. P.C, and have also filed their affidavit in protest against their statement. If such protest affidavit of all such witnesses, whose statement under Section 161 Cr. P.C is stated to have been recorded, is considered then it would reflect on the part of IO that he has tried to outreach to a greatest extent that he not only manipulated the allegations against C. S. Khairwal (A-1) and Sunil Khairwal (A-2) but also created false and manipulated testimonies of all such witnesses, who have filed their protest affidavit against their testimonies.
OBSERVATIONS
140. With regard to immovable properties mentioned at Sr. No. 2 and 3 at page No.15 of charge-sheet, it is alleged to have been constructed in two parts, however, how much value has been assigned to each phase of construction has not been clarified. In this regard, prosecution has examined a number of witnesses.
141. PW-11 Ramesh Khanna is a relevant witness who is stated to be residing at Jungpura Extension, New Delhi. PW-11 has stated that plot No. F-85, East of Kailash, measuring about 350 square yard was in the name of his aunt (mausi) Smt.Vishna Acharya. After her death there was a dispute in the family. Due to this the shares in the property were determined as 45 % to Shardha Sheshadari and 40% to PW-11. Rest of the share went to Himanshu Khanna, S/o Neera Khanna who was wife of Kamlesh Khanna brother of PW-11. PW-11 has stated that his plot F-85 was CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 93 of 309encroached by one Sardar ji with regard to which he met one Mr. Govil who introduced C.S. Khairwal (A-1) to him. PW-11 thereafter, met with A-1 for which A-1 expressed his willingness to purchase the said plot. A-1 said that the plot was to be purchased in the name of his father, Birbal Khairwal. PW-11 never met Birbal Khairwal. Panna Lal Khairwal, brother of A-1 had met PW-11. PW-11 has stated that Rs. 1.50 was given to Shardha through cheque/draft, Rs.1.35 was given to PW-11 by cash, and Rs. 50,000/- was given to Neera Khanna by cash. In total, Rs. 3.35 Lakhs was paid. PW-11 has categorically stated that cheque and draft might have been given by C. S. Khairwal (A-1).
142. PW-11 has admitted the agreement to sell dated 19.08.1985 and has identified the signature of the parties. PW-11 has categorically stated that signature of Birbal at point X were not made in his presence. PW-11 has further stated that when they had signed the title deeds, the signature of Birbal at point X were not there at that time. A-1 might have got it signed later on. The agreement to sell dated 19.08.1995 is Ex.PW11/A, its affidavit is Ex.PW11/B, General Power of Attorney dated 19.08.1995 is Ex.PW11/C. PW-11 has further stated that GPA dated 22.05.1986 bearing their signatures and signature of H.C.Govil as witness, has been executed in favour of Panna Lal S/o Birbal Khairwal which is Ex.PW11/D. PW-11 has categorically stated that the plot in question was not sold directly to Sh. Birbal with whom they had never met.
143. During his cross-examination by A-1, it is stated by PW-11 CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 94 of 309that Mr. Khairwal was working as Director, DDA so in order to seek his help in removing encroachment, he had gone along with H.C.Govil in DDA office in 1985. PW-11 has identified the signature of Shardha Sheshadari on Ex.PW11/A, Ex.PW11/B, Ex.PW11/C and Ex.PW11/D. PW-11 has denied the suggestions that C. S. Khairwal (A-1) was never instrumental in execution of documents or PW-11 had discussed any issues pertaining to encroachment on his property or C.S. Khairwal (A-1) had never discussed about the purchase of the property in name of his father. PW-11 however, has expressed his ignorance about source of funds paid by accused persons.
144. From the testimony of PW-11, it is reflected that property No. 2 is in the name of Panna Lal, brother of C. S. Khairwal (A-1). This witness has not stated anything with regard to funding of sale consideration by C. S. Khairwal (A-1). On the contrary, it is stated by PW-11 that property stands in the name of Panna Lal Khairwal, brother of A-1. It is a matter of record that investigation qua economic status of Panna Lal has either not been done and if done, is not forming part of documents reflecting that Panna Lal was not having sufficient means to purchase the property in question.
145. It has been reflected in the above mentioned paras, wherein discussion with regard to economic status of Birbal Khairwal has been made that, prosecution has not been able to establish that Birbal Khairwal was poor person and not having sufficient means to purchase such property or he was dependent upon C. S. Khairwal (A-1).
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 95 of 309146. Another witness examined by prosecution is PW-106 Naveen Kumar Jain, who was Junior Engineer in Engineering Wing CBI. In the year 1997, he used to carryout valuation of immovable properties. He carried out valuation of six properties as required by CBI through letter dated 18.02.1997 Ex. PW 106/A (D-309) and give report dated 25.07.1997 Ex. PW 106/3 (D-308).
147. The next witness examined by prosecution is PW-66 Subhrangshu Gupta, who is an Architect since 1991 and used to provide consultation in construction of building, preparation of design of building etc. He knew C. S. Khairwal (A-1). PW-66 was asked by Ministry of Surface Transport, Union of India to make model for Rapid Transport System for Delhi. At that time C. S. Khairwal (A-1) was Joint Secretary there. PW-66 used to submit his report to C. S. Khairwal (A-1).
148. It is stated by PW-66 that C. S. Khairwal (A-1) conveyed him that he was having a house at East of Kailash and he was desirous to extend first floor and second floor for which PW-66 extended help. He had visited East of Kailash. He suggested that the building was not having strength to hold the structure of construction of second floor, therefore, basement and first floor should be strengthened, PW-66 prepared building plan of house No. F-85, East of Kailash which is Ex. PW 66/1 (colly.) (D-312). PW-66 also suggested the name of contractor Hari Shanker to C. S. Khairwal (A-1), who did construction as well. The probable CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 96 of 309amount of structure construction of house of C. S. Khairwal (A-1) would have incurred at about 10-12 lakhs. It is further stated by PW-66 that initially there was a tenant at first floor of the house.
149. During his cross-examination, PW-66 has reiterated the fact that he had interaction with C. S. Khairwal (A-1) and when he had visited his house at F-85, East of Kailash, he met Sunil Khairwal (A-2) there. PW-66 has denied the suggestion that his services were availed by Sunil Khairwal (A-2) for preparation of drawing.
During cross-examination on behalf of Sunil Khairwal (A-2) , one relevant suggestion has been denied, however, it is important to mention as under:
"It is wrong to suggest that house F-85, East of Kailash was owned and possessed by accused C. S. Khairwal."
150. Next witness examined by prosecution is PW-9 Hari Shankar Gupta, who is stated to be in civil construction work since 1994 who is known to C. S. Khairwal. PW-9 has stated that he had done renovation work for building of C. S. Khairwal located at East of Kailash. PW-9 constructed columns and besides the work of addition and alteration he made partitions and constructed rooms as well as laid flooring. PW-9 stated that though he do not remember the exact bill amount raised however, it was in between Rs. 1.5 Lakhs to Rs.2 Lakh. Payment was made by C. S. Khairwal (A-1).
151. PW-9 was found resiling from his statement under Section 161 Cr.P.C on certain aspect, therefore, he has been cross-examined by Special PP. During his cross-examination PW-9 stated that he CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 97 of 309had met C. S. Khairwal (A-1) at F-85, East of Kailash in the month of January, 1995. PW-9 has categorically stated and admitted that most of the payment by cash given by C. S. Khairwal (A-1) was made through his son Sunil Khairwal (A-2). PW-9 has also admitted the fact that one Mayank Tyagi used to come to the building for supervision of the work.
152. During his cross-examination on behalf of A-1, PW-9 has stated that construction work carried out at East of Kailash include the cost of raw material and labour charges. It is further stated that cost of raw material used for constructions must be around Rs.4 Lakhs which included labour charges. PW-9 has stated that almost all payments were made by Sunil Khairwal (A-2).
153. From the testimony of prosecution witnesses, it is reflected that the valuation of the construction mentioned at Sr. No. 3 at page No. 15 of the charge-sheet does not seems to be proper. Moreso, the alleged value of construction of this property situated at F-85, East of Kailash can be assigned to its owner only if this fact is established by the prosecution that the actual owner of this property F-85 is C. S. Khairwal (A-1) and not Birbal Khairwal or Panna Lal Khairwal.
154. It has been argued on behalf of accused persons that at page No. 15, a number of immovable properties as much as 25 are mentioned which are assigned directly or indirectly through benami to C.S.Khairwal (A-1). Immovable properties for a sum of CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 98 of 309Rs.2,38,53,673/- in total are alleged to have been invested by C.S.Khairwal (A-1) having purchased either in his name or in the name of other accused persons or in the name of his close family members.
155. With regard to the list of 25 properties C.S.Khairwal (A-1) has stated that property mentioned at Sr. Nos. 1 and 10 of this list at page Nos. 15 and 16 of charge-sheet is not disputed but admitted. With regard to immovable property mentioned in list which are not in the name of C. S. Khairwal (A-1)and which are alleged to have been assigned to C. S. Khairwal (A-1) as benami holder, it is stated that they are not belonging to him. It is stated on behalf of C. S. Khairwal (A-1) with regard to the property mentioned at Sr. No. 18 that it has been sold already before the check period.
156. With regard to property i.e. F-85 mentioned at page no. 15 of the charge-sheet it is stated that it was constructed in two phases, however, its value has been assigned to each of such phase of construction has not been mentioned in the allegations against C.S.Khairwal (A-1). As per the circular of CBI, it should be properly reflecting the criterion of assessment and valuation. PW- 11 is a relevant witness, examined by prosecution in this regard however, none of the prosecution witness has explained how this property has been purchased by C. S. Khairwal (A-1) or how it has been funded by him, though it is shown to have been purchased by Birbal Khairwal as Power of attorney and subsequently in the name of Sunil Khairwal (A-2), as well.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 99 of 309157. H. C. Govil is one of the listed witness cited by prosecution who was a relevant witness in this regard, however, he has not been examined.
158. There are certain discrepancies in the testimonies of PW-11, who has said that C.S.Khairwal (A-1) was in DDA in 1985, however, he was not in DDA in 1985. This fact can be confirmed from D-265 which shows the place of various posting of C. S. Khairwal (A-1). PW-11 do not know who was the sardar ji who had encroached upon the property, the place of meeting of C. S. Khairwal (A-1) with the person alleged has not been established by CBI. The statement of six witnesses under Section 161 Cr.P.C was recorded in the year 1997 whereas the incident pertains to 1985. Thus, there is material improvement in his version.
159. As per Ex.PW11/D, GPA was executed after eight months in the name of Panna Lal. Earlier as per ExPW11/C the GPA was in the name of Birbal Khairwal (A-2). The payment with regard to this property has been made by cash and cheque. C. S. Khairwal (A-1) has no account in the drawee bank, then what is his source of payment link with C. S. Khairwal (A-1) has not been explained by CBI. It is stated that if the submissions made by PW-11 that C. S. Khairwal (A-1) was present in the meeting, presuming for the sake of arguments then his presence does not reflect that he has made a the payment. Prosecution cannot be allowed to say that because Birbal was having no sufficient funds or was a poor person with CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 100 of 309limited means then because he could not have sufficient means to make the payment then it was only C. S. Khairwal (A-1) who could have paid the money both the documents Ex.PW11/C and Ex.PW11/D are notarized. Thus, testimony of PW-11 do not support the prosecution as his veracity is doubtful.
160. PW-85 Gyan Prakash has turned hostile, he was witness to sale deed as mentioned in Sr. No. 2. It is further stated that PW-11 has stated nothing with regard to source of money nor there is any averment that it was C. S. Khairwal (A-1) who had funded the payment of sale consideration. It is further stated that as per D-43 house of Panna Lal, the brother of C. S. Khairwal (A-1)was also searched. No document regarding taking permission for search/raid conducted on 18.02.1996 has been placed on record. FIR is stated to have been registered on 17.02.1996 at 04:00 PM and raid has been conducted on 18.02.1996 at 09:30 AM. If the raid was conducted at the house of Panna Lal, the brother of C. S. Khairwal (A-1) then why he has not been made as one of the accused, has not been explained by CBI. It is stated by C. S. Khairwal (A-1) that the reason for which he has not been made an accused, is that he is a private person and a businessman by profession and was having huge wealth in his name. If search was the outcome of raid then why he has not been made as an abettor is not explained by CBI.
161. As per the search conducted at various places, search has been conducted at the house of Panna Lal, brother of C. S. Khairwal (A-
1) and one of the property at Faridabad has been mentioned in the FIR as well, however, no reference of this property at Faridabad in CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 101 of 309the name of Panna Lal has been taken in the list of immovable properties mentioned at page No. 15 of the charge-sheet. Charge- sheet, however, has said that Panna Lal was working as tout/agent of C. S. Khairwal (A-1) but he has not been made an accused nor as abettor. Moreso, no iota of evidence has been found against Panna Lal, brother of A-1, as nothing incriminating against Panna Lal is mentioned in the entire charge-sheet, therefore, investigation is faulty.
ARGUMENTS ON BEHALF OF C. S. KHAIRWAL (A-1)
162. It is stated during arguments on behalf of C. S. Khairwal (A-
1) that Panna Lal used to file wealth tax return with regard to which cross examination of PW-143 had been conducted at length. The relevant document in this regard is D-234. There is mention of Will dated 19.06.1986 in these documents as well. In D-243 details of wealth of Birbal Khairwal are mentioned. The property which is mentioned at Sr. No. 1 at page No. 40 of D-234 is property no. 22 of list of immovable property mentioned in the charge-sheet starting from internal page No. 15. of the charge- sheet.
163. It is stated that property mentioned at Sr. No. 2 of the list of charge-sheet at its page No. 15 is a shop, for this property advance for the land has been taken. It is mentioned in Ex.PW143/DZ-2 which are the wealth tax documents of Birbal Khairwal, father of C. S. Khairwal (A-1) and have been found to be correct, no benefit CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 102 of 309of these facts i.e. advance for land and wealth tax returns report furnished, seems to have been given either to C. S. Khairwal (A-1) or Birbal Khairwal, his father. With regard to benami, owner it is stated that mere acquaintance of the title holder with the benami owner is not sufficient, some connection of transfer of funds used in the purchase of the property should be established. It is categorically stated that even though one may be a blood relative of accused however, that does not suffice and raises a presumption that such relative can only be a benami holder of the property and none else. It is stated that the wealth tax return document as mentioned above being part of D- 243 has not been rebutted. C. S. Khairwal (A-1) has also not disputed the wealth tax return document.
164. With regard to property mentioned at Sr. No. 3 of page No. 15 of the charge-sheet, it talks about the cost of construction of the property, however, assessment of the cost assigned to the property is highly exaggerated and without any basis.
165. During arguments counsel for accused also emphasized upon the assessment and valuation of the property which is part of D-
313. D-275 is the valuation of the said property done by MCD. It is argued that the cost of construction should be as per the value assessed by MCD. In this regard, PW-9 and PW-16 have been examined by the prosecution however, they have been able to justify the assessment of the property done by the concerned valuer. Witness no. 2 brought on behalf of C. S. Khairwal (A-1) in his defence has categorically stated that no cash payment has been CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 103 of 309made to PW-66 by department and PW-66 has never met with C. S. Khairwal (A-1). Prosecution has failed to establish the fact that PW-66 had ever met with C. S. Khairwal (A-1). Prosecution has failed to establish the fact that PW-66 has ever met with C. S. Khairwal (A-1). It is stated on behalf of accused that it is not the case of prosecution that they know C. S. Khairwal (A-1), was reflected in any of the documents found in the search but the allegations against C. S. Khairwal (A-1) are that he had funded all the money in the purchase of the properties mentioned in list starting from internal page No. 15 of charge- sheet.
166. With regard to construction of property mentioned at Sr. No. 3 i.e. F-82, East of Kailash, it is stated that it is further stated that the site plan of the property F-82, East of Kailash has not been found in MCD record. Therefore, whether any construction was done or not is not established and if it was done, presuming for the sake of argument then the valuation and assessment of the cost of construction is not appropriate as per the bye-rules of MCD itself.
167. With regard to the evidence of expert i.e. valuer i.e. PW-106 it is not a substantive piece of evidence but corroborative piece of evidence. IO has not done any valuation with regard to the cost of construction. Moreso, valuation has been done on the basis of value of current year i.e. 1997 but not on the basis of year of actual construction i.e., 1984 and 1995.
168. From the above discussion, it is reflected that prosecution has CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 104 of 309not been able to shift the onus of proving this fact that it was C. S. Khairwal (A-1), who was the actual person financing the entire funds of not only purchase but raising construction at F-85. There is no evidence on record establishing the fact that it was C. S. Khairwal (A-1) who had financed not only purchase of F-85 but its construction as well.
EVIDENCE WITH REGARD TO PROPERTY MENTIONED AT SR. NOs. 4,5,6,7,8,9 MENTIONED AT PAGE NO. 15 AND 16 OF THE CHARGE-SHEET.
169. Prosecution has examined number of witnesses in support of their contentions in this regard as well. One of such witnesses is PW-83 Hoti Lal, who is is stated to be resident of village and post office Kyraga Kalan, Tehshil Hindon, District Karoli, Rajasthan and stated to be a witness to the sale of agricultural land by Kirori. PW-83 is known to Kirori son of Goli. It is stated that sale deed dated 10.02.1993 was executed in between Kirori and Sunil Khairwal (A-2) which is Ex.PW83/1 and sale deed dated 15.02.1993 executed in between Kirori and Anu Devi which is Ex.PW83/2 (D-226). This witness has expressed his ignorance about payment of sale consideration or whether it was paid by C. S. Khairwal (A-1).
170. Another witness examined by prosecution is PW-93 Sushil Kumar Vijay, who is stated to be the patwari at Kiyarda Khurd, Tehshil Hindon, who provided attested photo copy of Khatoni, Jamabandi in respect of Khasra No. 427 and Khasra girdawari for CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 105 of 309period samwat 2051 to 2053 which are Ex.PW93/2 to Ex.PW93/4. It is reflected that this witness had stated nothing with regard to ownership of the property in question except submitting the Khasra Girdawari for the above mentioned period.
171. Next witness examined by prosecution is PW-101 Murari Lal Meena, who was clerk in Sub-Registrar Office, District Hindon, Rajasthan during 1997. He handed over certain documents vide memo dated 14.05.1997 exhibited as Ex.PW101/1 (D-226) which contained certified copies of three sale deeds exhibited as Ex.PW83/1, Ex. PW 83/2 and Ex. PW 86/1.
172. Another witness examined by prosecution is PW-109 Vijay Kumar Arya, who was dealing in ready-made garment and also doing property business in the year 1993. It is stated that he do not know Kirori, son of Goli or C. S. Khairwal (A-1) or he had arranged a property deal in between Kirori and C. S. Khairwal (A-
1). This witness was found to be resiling from his statement under 161 Cr.P.C., therefore, has been declared hostile. During his cross-examination, he has not supported the story of the prosecution at all.
173. Another witness examined by prosecution is PW-91 Suresh Chand Sharma, who was Assistant Engineer, PWD Hindon, Rajasthan, who carried out evaluation of property situated at village Kiyarda Khurd and Mau Khas. Valuation of the property situated at Kiyarda Khurd is Ex. PW 91/1, property, i.e. shop and CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 106 of 309land of C. S. Khairwal (A-1) situated at Mau Khas is exhibited as Ex. PW 91/2 and property at Mau Khas is exhibited as Ex. PW 91/3. During cross-examination, this witness has stated that the valuation of the property was considered as per prevailing market rate during 1997.
174. Another witness examined by prosecution is PW-107 Puranmal Sharma, who was contractual postman in Ghosla Post Office, Mau Ibrahimpur, Rajasthan. He knew C. S. Khairwal (A-1) being native of same village. He also knew father of C. S. Khairwal (A-1) who was an agriculturist and also having sheeps and goats. This witness has stated that there was no shop in their village by the name of "Ram Narayan Badri Prasad Barigamwal". PW-107 during his cross-examination has stated that father of C. S. Khairwal (A-1) was having five shops near bus stand village Mau Ibrahimpur, Rajasthan and two shops in village.
175. Another witness examined by the prosecution is PW-86 Ram Karan, who was examined to ascertain the sale of land in their village and post office Mau Khas Tehshil Hindon, District Karoli, Rajasthan. It is stated that he received Rs.30,000/- as his share in the sale of land vide Ex. PW 86/1 dated 03.08.1994 which was sold by his brother Daya Ram. This witness was found to be resiling from his statement under 161 Cr.P.C., therefore, has been declared hostile. During his cross-examination, he has not supported the story of the prosecution at all.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 107 of 309176. Another witness examined by prosecution is PW-6 Govind Singh Khairwal, who is stated to be cousin of A-1 who is son of elder brother of his father. He is Sub-Inspector in Delhi police. With regard to financial status of Birbal Singh and his son A-1 Charan Singh Khairwal, he has not thrown much light. PW-6 has stated that Birbal Khairwal had three son namely Charan Singh Khairwal (A-1), Panna Lal and Hari Prasad. It is stated by PW-6 during his cross examination that it is not in his knowledge that his father had purchased a land measuring 4.38 hectors from Ram Charan, Daya Ram, Smt. Dupi residents of village Mau Ibrahim Khurd or the sale deed was registered on 03.08.1994 in the office of Sub-Registrar, Hindon. PW-6 has categorically stated that if his father had purchased the land it would be in his knowledge as he was the only son and only legal heir. PW-6 has stated that this land was not in his possession. PW-6 has further stated that he had no knowledge about sale deed marked as 'Mark X (D-226)'. During his cross-examination on behalf of A-1, PW-6 has stated that Birbal Khairwal and his sons were living in joint family. PW-6 has stated that he had no knowledge about the investment made by his father and he was aware about only those investments which were share by his father with him. This witness has not been cross examined on behalf of A-2.
ARGUMENTS ON BEHALF OF ACCUSED PERSONS.
177. With regard to the property mentioned at Sr. No. 4, 5, 6 of the internal page Nos. 15 and 16 of the charge-sheet, it is stated that the general submissions and objections with regard to source and CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 108 of 309funding of property is common, as disputed by A-1, can also be considered for these properties.
178. With regard to property mentioned at Sr. Nos. 4, 5 and 6 mentioned at page Nos. 15 and 16 of the charge-sheet, situated at village Kyarda Khurd Hindon and compound valve, pump patwar, tube well etc., in this case, in this regard, it is stated on behalf of C. S. Khairwal (A-1) that relevant document filed along with the charge-sheet is D-226 and prosecution witnesses PW-83, PW-91, PW-93, PW-101 and PW-109 have been examined.
179. PW-83 is Hoti Lal, who has clearly stated that he do not know to whom the property in question mentioned at Sr. No. 4 at page No. 15 of charge-sheet was sold by the seller. No light upon the name of purchaser has been thrown by this witness. Similarly, PW-93 has not stated anything about the property being purchased by C. S. Khairwal (A-1).
180. PW-101 is Murari Lal Meena, Sub-Registrar who has registered property mentioned at Sr. No.4 and PW- 93 is Sushil Kumar i.e., the concerned Patwari who updated the relevant record qua property mentioned at Sr. No. 4. the relevant documents are Ex.PW93/2, Ex.PW93/3 and Ex.PW93/4. It is stated on behalf of C. S. Khairwal (A-1) that this property mentioned at Sr. No. 4 stands in the name of A-2 and Anu Devi. PW-109 has turned hostile and has not supported the story of prosecution at all.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 109 of 309EVIDENCE PERTAINING TO IMMOVABLE PROPERTY MENTIONED AT S. N. 6, 7, 8 AND 9.
181. Prosecution has examined PW-91 Suresh Chand Sharma, who is Assistant Engineer, PWD Hindon, Rajasthan. He carried out evaluation of property situated at village Kiyarda Khurd and land and shop at Mau Khas. Valuation of the property situated at Kiyarda Khurd is Ex.PW 91/1, property, i.e. shop and land of C. S. Khairwal situated at Mau Khas is Ex.PW91/2 and property at Mau Khas is Ex.PW91/3. During cross-examination, this witness has stated that the valuation of the property was considered as per prevailing market rate during 1997.
182. Another witness examined by prosecution in this regard is PW-107 namely Pooran Mal Sharma who is stated to be the post man. His testimony has been mentioned above. During his testimony he has stated that there were total seven shops pertaining to Birbal Khairwal in his village Mau Khas out of which five shops were at bus stand and two shops were in village.
183. With regard to property No. 9, prosecution has examined PW-
86 and PW-6.
184. PW-86 is Ram Karan, who was examined to ascertain the sale of land in their village and post office Mau Khas Tehshil Hindon, District Karoli, Rajasthan. It is stated that he received Rs. 30,000/- as his share in the sale of land vide Ex. PW 86/1 dated 03.08.1994 which was sold by his brother Daya Ram. This witness was found CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 110 of 309to be resiling from his statement under 161 Cr.P.C., therefore, has been declared hostile. During his cross-examination, he has not supported the story of the prosecution at all.
185. PW-6 Govind Singh Khairwal who is stated to be cousin of A-
1, who is son of elder brother of his father is examined. With regard to land situated at village. Mau Ibrahimpur mentioned at Sr. no. 9 at page No. 16 of the charge-sheet, he has stated during his cross examination that it is not in his knowledge that his father Shiboo Ram had purchased a land measuring 4.38 hectors from Ram Charan, Daya Ram, Smt. Dupi residents of village Mau, Ibrahim Khurd or the sale deed was registered on 03.08.1994 in the office of Sub-Registrar, Hindon. PW-6 has categorically stated that if his father had purchased the land it would be in his knowledge as he was the only son and only legal heir. PW-6 has stated that this land was not in his possession. PW-6 has further stated that he had no knowledge about sale deed marked as 'Mark X (D-226)'. This witness has not supported the story of prosecution in this regard and has turned hostile.
186. PW-143, IO of the case has not recorded the statement of Shiboo Ram, father of PW-6 as well as relative of C. S. Khairwal (A-1). From the testimony of PW-143, it is reflected that whatever he has stated is on the basis of sourced information. Thus, the sole testimony of IO in this regard, in my considered opinion, cannot be considered to be relevant unless and until corroborated by the relevant witnesses.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 111 of 309187. With regard to property No. 11 mentioned at page no. 16 and 17 one interesting factor is relevant to note here that only 1/10th part of this property situated at E-286, GK-I, New Delhi, is in the name of Sunil Khairwal (A-2). Other nine parts or nine sale deeds are in the name of Mukti Devi, W/o Hukum Chand, Yashpal s/o Roop Ram, Kampoori Devi (sister of A-1) W/o Room Ram, K.C.Sharma (A-3) (since deceased), Santra Devi W/o Panna Lal (brother of A-1), Ms Satish W/o Hari Ram, Hukum Singh S/o Mau Lal, Bheri Lal S/o Mau Lal and Tulsa Devi W/o Prabhu Dayal.
188. In this regard prosecution has examined PW-1 Rakesh Raina, who has stated that he is a property dealer working with Arun Khullar, who was running his business in the name and style of Khullar Estate Agency at Greater Kailash. PW-1 has stated that he do not know Ajay Sharma or whether he was a property dealer. PW-1 has further stated that Ajay Sharma has never approached him. This witness was declared hostile by prosecution.
189. PW-1 during his cross-examination has stated that his statement under Section 161 Cr. P.C was not recorded by CBI nor he has stated to CBI that he had met with one property dealer Ajay Sharma in the year 1992, who had approached Khullar Estate Agency for purchase of 200 - 250 square yards house in Greater Kailash area or he had selected one property in E-286, G.K. - I, which was a corner house. PW-1 further denied that after two days Ajay Sharma had asked for meeting with previous owner Rajesh Jain and Mukesh Jain or any meeting was arranged in the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 112 of 309office of Mukesh Jain at G.K.- I.
190. PW- 1 has also expressed his ignorance regarding sale purchase of E-286 or payment of advance or sale consideration. PW-1 has further denied that consideration amount was finalized at Rs.63 Lakhs for which a token money or Rs.1 Lakh was given by Ashok Gaur to Mukesh Jain.
191. PW-1 however, has acknowledged the fact that registered sale deed filed as D-290 is for a sum of Rs. 1,98,000/- which is executed by Shashi Jain in favour of Tulsa Devi, W/o Prabhu Dayal in respect of H No. E-286, G. K. Part - I. PW-1 also identified his signature at point A of sale deed exhibited as Ex.PW1/A. PW-1 also identified the photograph of Shashi Jain on each page. PW-1 however, did not identify the signature of Tulsa Devi. PW-1 further identified registered sale deed for Rs. 1,98,000/- executed by Digamber Prasad Jain by Hukam Singh. He also identified the signature of Digamber Prasad Jain on sale deed Ex.PW1/B which is file D -291.
192. PW-1 further acknowledged the registered sale deed for Rs.1,98,000/- executed by Digamber Prasad Jain in favour of Yashpal bearing signature of PW-1 at point A on sale deed Ex.PW1/C being part of D -292. PW-1 further acknowledged the registered sale deed for Rs. 1,98,000/- executed by Digamber Prasad Jain in favour of Muktai Devi bearing signature of PW-1 at point A on sale deed Ex.PW1/D being part of D -293.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 113 of 309193. PW-1 further acknowledged the registered sale deed for Rs.1,98,000/- executed by Shahi Jain in favour Bhori Lal of bearing signature of PW-1 at point A on sale deed Ex.PW1/E being part of D -294. PW-1 further acknowledged the registered sale deed for Rs. 1,98,000/- executed by Shahi Jain in favour Smt. Satish of bearing signature of PW-1 at point A on sale deed Ex.PW1/F being part of D -295. PW-1 further acknowledged the registered sale deed for Rs. 1,98,000/- executed by Shahi Jain in favour Kampoori Devi of bearing signature of PW-1 at point A on sale deed Ex.PW1/G being part of D -296.
194. PW-1 further acknowledged the registered sale deed for Rs.1,98,000/- executed by Shashi Jain in favour K. C Sharma of bearing signature of PW-1 at point A on sale deed Ex.PW1/H being part of D -297. PW-1 further acknowledged the registered sale deed for Rs. 1,98,000/- executed by Digamber Prasad Jain in favour Sunil Kumar of bearing signature of PW-1 at point A on sale deed Ex.PW1/J being part of D -298. PW-1 further acknowledged the registered sale deed for Rs. 1,98,000/- executed by Digamber Prasad Jain in favour Shanta Devi of bearing signature of PW-1 at point A on sale deed Ex.PW1/K being part of D -299.
195. PW-1 has resiled from his statement under Section 161 Cr.
P.C except admitting the fact that Sale deed was registered by Shashi Jain and Digamber Prasad Jain in favour of above persons. During the cross examination of PW-1 by A-1 it is stated that CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 114 of 309attendance of buyer before Registrar was not mandatory at that time and photographs of buyer was also not affixed on the sale deed. It is also stated that he had not noticed anything wrong in these transactions during registration of sale deed.
196. Another witness examined by prosecution is PW-14 Ajay Sharma, who is a property dealer and a farmer having his office at Asaf Ali Road. PW-14 stated that one Ashok Gaur contacted him that he was looking for a kothi in Greater Kailash Colony and willing to purchase it. This kothi was required for some of his known person. PW-14 thereafter contacted Arun Khullar property dealer of that area who gave reference of Rakesh Raina. PW-14 stated that he had not shown any property to Ashok Gaur. This witness was found resiling completely from his earlier statement given under Section 161 Cr.P.C and found not supporting the story of prosecution at all, therefore, has been declared hostile. PW-14 has denied that he was instrumental in sale of kothi E-286, Greater Kailash - I. PW-14 also did not identify C. S. Khairwal (A-1) stating that he had not met him. PW-14 however, has identified his signature on registered documents in the capacity of witness. He has stated that he was present at the time when registered deed was executed.
197. This witness has identified his signature on document Ex.PW1/A, Ex.PW1/B, Ex.PW1/D, Ex.PW1/E, Ex.PW1/F, Ex.PW1/G and Ex.PW1/J. This witness has further expressed his ignorance about deal of another land 2.5 acre farm house located in village Asola, Mehrauli near Fatehpur had taken place through him.
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Page No. 115 of 309
PW-14 has not thrown any light about payment of sale
consideration by way of installments by and on behalf of C. S. Khairwal (A-1). PW-14 has denied the sale of farm house at Village Asola Ex.PW14/A, Ex.PW14/B, Ex.PW14/C through him. During his cross-examination on behalf of A-1, PW-14 has stated that he had signed the documents as witness at the request of Ashok Gaur.
198. Another witness examined by prosecution is PW-71 Suresh Ashiwal, who has stated that C. S. Khairwal (A-1) is his maternal uncle. It is stated by the witness that his mother purchased some property but he is not aware about the particulars thereof. This witness was found to be resiling from his statement under 161 Cr.P.C., therefore, has been declared hostile. During his cross- examination, he has not supported the story of the prosecution at all.
199. Another witness examined prosecution is PW-111 Rajesh Jain, who is in construction business and deals in sale purchase of immovable properties. He has his office at M-49, Greater Kailash- I. He has two brothers Mukesh Jain and Rakesh Jain. Wife of Mukesh Jain is Shashi Jain. He identified signature of his late father D. P. Jain on sale deed Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW1/J and Ex.PW1/K. He, however, did not identify his signature on Ex.PW1/A, Ex.PW1/E, Ex.PW1/F, Ex. PW1/G and Ex.PW1/H and stated that he was not aware about the sale transactions of these sale deeds. This witness was found to be resiling from his statement under 161 Cr.P.C., therefore, has been CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 116 of 309declared hostile. During his cross-examination, he has not supported the story of the prosecution at all.
200. With regard to property No. 8, PW-91 Suresh Chand Sharma the valuer has stated that he has assessed the valuation as per the current market rate of construction and the year of construction mentioned in his report is on the basis of verification of fact from some neighbour. Name of such neighbour is neither mentioned in the report nor disclosed during his testimony recorded in the court. It is a matter of record that Birbal Khairwal has expired on 23.01.1988, whereas the valuation of the construction of the samadhi of Birbal Khairwal has been done after 18.02.1996. Relevant witness qua this property have turned hostile, hence in my opinion, facts pertaining thereto cannot be said to be established according to allegations.
ARGUMENTS ON BEHALF OF A-1
201. With regard to valuation of the properties mentioned at Sr.Nos.6, 7 and 8, it is stated that PW-91 is the concerned witness who had done the valuation of the property Nos. 6 and 5 shops in question and the samadhi of the father of C. S. Khairwal (A-1) . Relevant documents are D-229, D-230 and D-231.
202. With regard to the valuation, it is stated that there is no basis of valuation done reasonable. From the perusal of the valuation done by this witness seems to be arbitrary, without any reasonable criterion or the factor which would determine the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 117 of 309correct/reasonable value of the property. It is further stated that none of these documents i.e. the valuation of the property done by the valuer bears any date of valuation. It has nowhere stated in the report as to the valuation done by the valuer regarding year of valuation of taken by the valuer. It is stated that it appears that the valuation though is arbitrary has been done on the current value whereas it should be done on the basis of the year of construction. It is stated that the property mentioned at Sr.Nos.4 and 5 including property mentioned at Sr.Nos.6 and 7 have been purchased by the person named in the title deed itself i.e. Sunil Khairwal (A-2) and Anu Khairwal, respectively. In same position on the date of purchase, they had not carried out any further construction in the property. It is further stated that with regard to property mentioned at Sr. No. 6, the sale deed itself finds mention of compound wall, pump patwars, rolling tube well, stones etc. in the sale deed itself that they have existing at the time of purchase of the property by the purchaser. Thus, these valuation are not only arbitrary but have been wrongly assigned to C. S. Khairwal (A-1).
203. With regard to property mentioned at Sr. no. 8, it is stated that the father of C. S. Khairwal (A-1)had died in 1988 and the samadhi in question mentioned at Sr. No. 8 must have been constructed in that year itself. Benefit of depreciation should be given, however, it has not been reflected from the valuation report as it does not talk about year wise depreciation. Moreso, the date of considering the year of valuation has not been mentioned with regard to property mentioned at Sr. No. 8 as well.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 118 of 309204. C. S. Khairwal (A-1) has further argued that the basis of determining the rate of land is also not reasonable thus, PW-91 has given false and manipulated report.
205. With regard to shop in question mentioned at Sr. No.7 of page No. 16 of the charge-sheet it is stated that prosecution has not been able to establish the fact that as to in whose name the property in question belongs to or who has the purchased this land/shop in question and has not considered the fact that 5 shops in question belongs to Birbal Khairwal, father of C. S. Khairwal (A-1).
206. It is further argued that IO PW-143 has stated that there was no basement in the shop in question whereas PW-91 has stated that shops in question were having basement valuation with regard to property mentioned at Sr. No. 7 has not been following the standing order of PWD regarding valuation of shop, the year of construction should be considered in the valuation, however, the entire report is silent about the year of construction.
207. One witness PW-107, who was the postman of that area have been examined by the prosecution. However, he has stated a different story than the story of prosecution. PW-107 has stated that shops in question were at bus stand and two shops were in village. Thus, the testimony of all these witnesses not only has not thrown light about the basis of year of construction but also have disregarded standing orders of PWD regarding valuation of shop in question. Thus, the valuation report submitted by PW-91 is CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 119 of 309manipulated and concocted, hence, cannot be relied upon.
208. With regard to properties mentioned at Sr. Nos. 9 mentioned at its page No. 16 of the charge-sheet it is stated that this property is situated at Mau Rajasthan and the name of the purchaser is Shiboo Ram. In this regard, witnesses examined by the prosecution are PW-86 and PW-6. The sale deed in question is Ex.PW86/1 and PW-86 is father of PW-6. It is stated that the title deeds of the property situated at Mau Ibrahimpur Hindon have not been found in the possession of C. S. Khairwal (A-1).
209. The name of the purchaser is Shiboo Ram who have not been examined. As per title deeds valuation of property is Rs.1,80,000/-, however, this value has been taken as Rs.91,000/- in the charge- sheet. How this figure has been taken by the IO, has not not been explained.
210. With regard to property no.11, it is stated on behalf of C. S. Khairwal (A-1), that property i.e., E-286, Greater Kailash, New Delhi, has been valued as having been purchased for Rs. 63 Lakhs and there are ten owners/purchasers of the property in other words this property has been purchased by ten different purchasers and one of the purchaser is Sunil Khairwal (A-2) having purchase 1/10th part on 13.01.1993 from D.P. Jain. One of the purchase is shown as K. C. Sharma (A-3) (since deceased) as well having purchase the same i.e., 1/10th part of the property on 08.01.1993 from Sashi Jain.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 120 of 309211. As per the record and allegations owner of this property are Sashi and Digamber Jain who are stated to have sold the property to ten different purchasers for which ten different sale deeds have been executed and one of the purchaser is Sunil Khairwal (A-2) and K. C. Sharma (A-3), having purchased, as per record 1/10th part thereof. It is stated that K. C. Sharma (A-3) already expired and proceedings qua K. C. Sharma (A-3) having been abated.
212. With regard to this property the allegations are that C. S. Khairwal (A-1) was instrumental in the entire deal and it was he who had purchased this property benami in the name of ten different purchasers including his son Sunil Khairwal (A-2) and K.C. Sharma (since deceased) (A-3). It is argued that none of the vendor i.e., Sashi or D.P.Jain or any of the purchaser has been examined by the CBI nor any reply of such purchaser whether they had purchase it on their own otherwise has been shown by the CBI during investigation. It is further stated that the allegation against C. S. Khairwal (A-1) are that he purchase this property mentioned at serial no.11 mentioned at page no.16 of charge sheet benami in the name of various persons as reflected from the title deed itself. It is stated that CBI miserably failed to establish any link that either C. S. Khairwal (A-1) has played an instrumental role in striking the deal and he had financed the money which was used in purchase of the same.
213. Witness has examined by prosecution in this regard are PW1 Rakesh Raina, who has categorically stated in his examination that he had not seen C. S. Khairwal (A-1) at the spot, at the time of CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 121 of 309execution nor he knew him personally. Another witness examined by prosecution is PW14 who has stated that it was Panna Lal brother of C. S. Khairwal (A-1) who was present at the time of registration of documents. PW-71 is son of Tulsa Devi who has also not supported the story of prosecution. PW-111 is Rajesh Jain who has stated that the cash of Rs.42 Lakhs was given for the purchase of the property. PW-111 has also turned hostile, he has not shown any light about the connection of cash of Rs. 42 Lakhs with C. S. Khairwal (A-1) which is amount stated to have been recovered from the possession of Rajesh Jain.
214. It is stated that CBI has not been able to connect this money to the transaction relating to property mentioned at serial no.11 mentioned at page no.16 of charge sheet. PW-143 who is IO of the case has also not stated anything in this regard. Family background of purchaser of the property have not been obtained by the IO. IO has not recorded the statement of Tulsa Devi, Hukum Singh, Yashpal, Kampoori Devi, Mukti Devi, Bhari Lal, Sunil Khairwal (A-2), Smt. Satish, Santra Devi and K.C. Sharma (A-3) (since deceased) have not been examined by the IO at all thus prosecution has not only been failed to assign any source of funding the purchase of the property by C. S. Khairwal (A-1) in the name of Sunil Khairwal (A-2), and other persons as mentioned above but has also not been able to establish that why and how the entire value has been assessed as Rs. 63 Lakhs and thus some of money has been attributed to C.S.Khairwal (A-1) whereas 1/10th of the property as per the record is purchased by Sunil Khairwal (A-2) and 1/10th of the property, as per the record is purchased by K.C. CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 122 of 309Sharma (since deceased).
OBSERVATION AND ANALYSIS
215. As per submissions made by prosecution as well as accused, it is reflected that no only the issue pertaining to ownership of the properties alleged have been raised but the valuation thereof has been disputed.
216. With regard to valuation, it is reflected that none of the witnesses who have done evaluation of the properties have mentioned the criterion and procedure adopted by them for such valuation. The year of valuation has also been disputed and questions have been raised in that regard. These submissions, so far as taking of year of valuation is concerned seems to be plausible as no reason to consider the year of valuation and considering the market value prevalent at that time is mentioned. In the absence of relevant circulars or accepted norms to be adopted while assessing the valuation as per PWD guidelines/circulars/notification, such valuation in my considered opinion cannot be said to be free from doubts. None of the witness discussed above have stated that they have made any inquiry regarding ownership of the property under valuation.
217. It is needless to say that it was not the job of the valuer to ascertain the ownership of the property to be valued, however, no general preliminary inquiry in that regard has been done. Mere mentioning in the report that the owner of the property is Birbal CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 123 of 309Khairwal or C. S. Khairwal (A-1) or Sunil Khairwal (A-2), as the case may be, cannot be considered to have established that owner of the property is the person as mentioned in the report and in my considered opinion, this mentioning cannot said to corroborate this fact pertaining to ownership or claim of ownership as alleged by prosecution. Thus, evidence to this extent do not inspire their confidence.
218. The issue relating to holding of the property as benami shall be considered in the subsequent paras after discussing the evidence led by prosecution and accused persons as a whole.
PROPERTY NO. 12 MENTIONED AT PAGE NO. 17 OF CHARGE-SHEET
219. As per the story of prosecution, this property is shown to have been purchased in the name of Hukum Barua and Rampat and actual owner of this property is shown as Sunil Khairwal (A-2). As per record, no witness has been examined by the prosecution to establish that this property No. 12 i.e. 247, Barani Land at Mau Ibrahimpur, has been actually belonging to C.S.Khairwal (A-1) or he had funded the sale consideration through Sunil Khairwal (A-2). The only testimony available on record is that of PW-143 IO S.K.Peshin. Title deeds of the property number 12 as mentioned above has not been disputed by both the accused persons.
220. PW-143 has stated during his examination in chief dated 23.01.2018 at its Para No. 133 that sale deed of the property is CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 124 of 309Mark 143/V-68 (D-305). This again, do not seems to inspire their confidence.
PROPERTY NOs. 13 AND 14.
221. In this regard, prosecution has examined son of the previous owner Brahm Kaur Manvir Singh as PW-42. PW-42 Manbir Singh, has stated that Brahm Kaur is his mother who has sold a piece of land ad-measuring 725 square yard situated at Neb Sarai, New Delhi to Vinod Kumar Sharma for a consideration of Rs.78,000/-. Vide Agreement to Sell, GPA, Affidavit, Receipt dated 04.09.1990, which is Ex.PW42/1 (colly.) (D-306). This witness has identified signature of his mother Brahm Kaur. This witness was shown title deeds dated 22.10.1992 executed by Vinod Kumar Sharma in favour of Sunil Khairwal (A-2).
222. During his cross-examination, this witness has stated that document executed by Vinod Kumar Sharma in favour of Sunil Khairwal (A-2), dated 22.10.1992 exhibited as Ex.PW22/2 were not executed in his presence. PW-42 has expressed his ignorance about the owner of the property subsequent to Vinod Kumar Sharma.
223. Next witness examined by prosecution is PW-140 Prabhat Chander Sharma who is DSP, ACB, CBI in 1996 who participated in the investigation of present case. It is stated by PW-140 that he was part of various searches conducted by him and during search he visited farm house at K-225, Sainik Farm, Delhi where one CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 125 of 309Okheel, caretaker was present and he informed that the farm house was owned by C. S. Khairwal. The concerning memo dated 18.06.1996 bearing signature of PW-140 and IO S.K. Peshin is Ex.PW140/B (D-58). There is no other evidence pertaining to property No. 13 and 14 available on record from the side of prosecution.
224. Next witness examined by prosecution is PW-106 Naveen Kumar Jain. He was Junior Engineer in Engineering Wing CBI. In the year 1997, he used to carryout valuation of immovable properties. He carried out valuation of six properties as required by CBI through letter dated 18.02.1997 exhibited as Ex. PW 106/A (D-309) and give report dated 25.07.1997 Ex. PW 106/3 (D-308).
ARGUMENTS BY ACCUSED PERSONS
225. Property No. 13 and Property no.14 i.e., property situated at Plot No. K-225, Sainik farm and construction thereupon in the name of boundary wall, two room hutment on this plot. There are allegations that these properties have been purchased by C.S.Khairwal (A-1) in the name of Sunil Khairwal (A-2), however, there is no evidence as per record that C. S. Khairwal (A-1) has contributed or paid any of the money or entire money in purchase of the same. It is stated that Manveer Singh is one of the attesting witness.
226. CBI has examined PW-42 who is Manveer Singh who is son of the seller. It is stated that Brahmi Kumar was the previous owner CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 126 of 309who has sold the property to Vinod Kumar Sharma and as per the record Vinod Kumar Sharma is alleged to have sold the property to Sunil Khairwal (A-2). One technical point has been raised during argument on behalf of C. S. Khairwal (A-1) regarding title deed exhibited as Ex.PW42/2 which is sale deed in between Vinod Kumar Sharma and Sunil Khairwal (A-2) which was executed in his presence. It is stated that Vinod Kumar Sharma, was cited as one of the witness who has not been drop but not examined. The statement U/s 161 Cr.PC was also recorded by IO however, no name has been deliberately dropped.
227. PW42 stated in his cross-examination that the construction at the property in question mentioned at serial no.13, which is separately mentioned at serial no.14 and value assigned to the construction is Rs.1,50,000/-. PW42 has stated that it was raised by Vinod Kumar Sharma himself therefore if the property is sold by Vinod Kumar Sharma the previous owner and constructor who has mentioned at serial no.14 at page no.17 of charge-sheet has been carried out by Vinod Kumar Sharma himself has stated by PW-42 then its value should be part of the sale proceed itself, which is mentioned as Rs.1,00,000/- only. It has been stated that this value i.e., Rs.1,50,000/- therefore cannot be attributed to any of the accused by this reason only and as per the statement of PW42 hence it has been wrongfully assigned to accused persons.
228. With regard to property mentioned at serial no.13, it is again stated by C. S. Khairwal (A-1) that it is in the name of Sunil Khairwal (A-2) and there is no evidence linking the funding of CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 127 of 309purchase by C. S. Khairwal (A-1).
OBSERVATION AND ANALYSIS
229. From careful perusal of testimonies of witnesses pertaining to property no. 13 and 14, it is reflected that none of the witnesses examined by the prosecution has stated that the sale consideration and the money for construction of the boundary wall and two rooms were made by C. S. Khairwal (A-1) either by himself or through Sunil Khairwal (A-2). PW-42 is mere attesting witness to the title deeds. These title deeds cannot be said to have been established as per law as originals thereof are not brought on record. Moreso, none of the seller or purchaser as reflected from the tile deed have been examined. PW-42 being attesting witness has expressed his ignorance about the current owner of the property in question.
230. With regard to boundary wall and two rooms, it is further stated by PW-106 that they were already constructed by Vinod Kumar Sharma. Prosecution has not brought on record any witness to establish that the property no. 13 and 14 in question were purchased by C. S. Khairwal (A-1) and Sunil Khairwal (A-2). In the absence of any evidence to the contrary, in my considered opinion, it cannot be considered that property no. 13 and 14 belongs to accused persons as alleged.
PROPERTY NO. 15, 16 AND 17 MENTIONED AT PAGE NO.
18 OF CHARGE-SHEET
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 128 of 309
231. One of the witness examined by prosecution in this regard is PW-35 Bal Krishan, who is witness to General Power of Attorney, Agreement to Sell and Receipt of Rs. 40,000/- pertaining to sale transaction of land in village Kishanganj, Delhi which is exhibited as Ex.PW35/1 (colly.) (D-248). PW-35 has stated that the land has been sold to a lady by one Sardar Singh This witness was found resiling from his statement, therefore, has been declared hostile and was cross examined by Ld. Special PP for CBI. This witness has not supported the story of prosecution at all.
232. Next witness examined by prosecution is PW-36 Krishan Lal Sharma who is stated to be witness to title deeds, Ex.PW35/1 (colly.) (D-248). This witness was found resiling from his statement, therefore, has been declared hostile and has been cross examined by Ld. Special PP for CBI. This witness also has not supported the story of prosecution at all.
233. Next witness examined by prosecution is PW-44 Tek Chand Sharma, who is known to K.C.Sharma (since deceased), who had purchased land at Village Kishan Garh. PW-44 has stated that his son had also purchased adjoining land in Village Kishan Garh. PW-44 identified the document exhibited as Ex.PW44/1 (D-270) dated 11.11.1992 and his signature at point A. He also acknowledged the receipt of Rs.1 Lakh dated 11.11.1992 having his signature which is Ex.PW44/2. PW-44 stated that he received Rs.1 Lakhs from K. C. Sharma for settlement of a passage dispute between K. C. Sharma and him. This witness was found resiling from his statement, therefore, has been declared hostile and was CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 129 of 309cross examined by Ld. Special PP for CBI. This witness has not supported the story of prosecution at all.
234. Next witness examined by prosecution is PW-106 Naveen Kumar Jain, who was Junior Engineer in Engineering Wing CBI. In the year 1997, he used to carryout valuation of immovable properties. He carried out valuation of six properties as required by CBI through letter dated 18.02.1997 Ex. PW 106/A (D-309) and give report dated 25.07.1997 Ex. PW 106/3 (D-308).
235. Next witness examined by prosecution is PW-47 N. D. Tyagi, who was working as Area Sales Manager of M/s Suraj Automobiles Ltd., Saharanpur, UP. The area of Delhi and Haryana. V. C. Harrison was the Chief Executive (Marketing) in M/s Suraj Automobiles Ltd. PW-47 has stated that they appointed M/s MANSO ABSU Automobiles as their dealer for Delhi for sale of Diesel, Suraj Motorcycles and Sitara Auto Three Wheelers. Memorandum of Understanding and Appointment M/s MANSO ABSU automobile Kishanganj, Vasant Kunj as dealer is Ex.PW47/1 which is pertaining to the period 1992-1993 1996- 1997. PW -47 has stated that MANSO ABSU was run by K. C. Sharma and Sunil Khairwal (A-2). No material contradiction emerged in the cross examination of PW-47 and he has corroborated whatever he has stated in his examination in chief.
236. Next witness examined by prosecution is PW-60 B. S. Arya, who was working as Field Investigator in Land Management, South West Division of DDA in the year 1993. His duty was to CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 130 of 309take labour and equipment during demolition drive. This witness is examined with regard to demolition carried out by DDA at JNU Road, Kishangunj as reflected in Ex.PW55/4. This witness was found resiling from his statement, on the point of disclosing the name of the person at whose place the demolition was carried out, therefore, has been declared hostile and was cross examined by Ld. Special PP for CBI.
237. Next witness examined by prosecution is PW-61 B. B. Jaiswal who was the JE, Land Protection Department. This witness corroborated the fact that demolition was carried out at unauthorized construction as reflected in site plan exhibited Ex.PW55/4. This witness has not been cross examined.
238. Next witness examined by prosecution is PW-55 H. L. Chawla who is a retired government servant from DDA, retired in the year 1995. He was Joint Director, DDA in 1993. It is stated by this witness that as per file No. SW(7)/93/LPB part exhibited as Ex.PW55/1 there is a noting dated 16.11.1993 that demolition and as per noting exhibited as Ex.PW55/2 demolition was carried out on 17.08.1993 at the property pertaining to Sh. Khairwal at JNU Road, Kishangarh, Vasant Kunj. As per map exhibited as Ex.PW55/4 demolition was carried out in a portion shown as green colour in it. No material contradiction has emerged in the cross- examination of PW-55 and he has corroborated whatever he has stated in his examination-in-chief.
ARGUMENT ON BEHALF OF ACCUSED CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 131 of 309239. It has been argued that property mentioned at serial no.15 is land/plot at village Kishan Garh, Vasant Kunj, New Delhi and as per the title deed it is purchased in the name of Narayani Devi, W/o Birbal Khairwal. It is stated that PW-35 and PW-36 are the attesting witness to sale deed but they have not supported the story of prosecution. Narayani Devi mother of C.S.Khairwal (A-1) had expired on 09.06.1987. There are three dates mentioned in the column no.3 as date of purchase i.e., 25.06.1985, 08.02.1991 and 28.02.1991.
240. It is stated by PW-35 Balkishan that the value of the property is Rs.40,000/- and not Rs.50,000/- and the amount Rs.50,000/- has been wrongfully mentioned in the charge-sheet at page no.18. Property no.16 i.e., pathway to plot 625 Sq. Yard at village Kishan Garh, Vasant Kunj, New Delhi is stated to be owned by K.C.Sharma (A-3) who had handed it over to Abha Tyagi. It is stated that K.C.Sharma (A-3) has already expired and no investigation qua Abha Tyagi with regard to this property is forming part of the record. It is argued that it is mentioned in the claim of property details that property no.17 was partly demolished and building have been newly constructed.
241. PW-60 B.S. Arya and PW-61 B.B. Jaiswal have been examined by prosecution, who have produce the record pertaining to demolition of the property. It is mentioned as per the record that property no.1675 was demolished.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 132 of 309242. Another witness examined by prosecution in this regard, is PW-55 H.L Chawla. It is argued that if property no.17 have been demolished completely as per the record then how it has been valued and a sum of Rs. 41,22,000/- has been assigned for the construction of this property and has been attributed to C. S. Khairwal (A-1). PW-143 has not explained any of such fact in this regard. It is stated on behalf of accused persons that they do not dispute the demolition carried out by DDA. It is further stated that demolition was carried in two parts, it is further stated that as per the record there is no dispute with regard to the name of 'Khairwal' and 'Khandelwal' as well.
243. With regard to the valuation of the property, prosecution has examined PW-106 Naveen Kumar Jain. It is stated that the report regarding valuation of the construction is completely unreliable. There is no basis of valuation of the property carried out by PW- 106 as per the final record as stated by PW-55 that complete demolition has been carried out then there was nothing in the form of construction on the property in question then how PW-106 could have assessed and assigned any value of it.
244. PW-35 Balkishan, PW-36 Kishan Lal Sharma and PW44 Tek Chand Sharma have turned hostile and have not supported the story of prosecution at all. It is categorically stated that C. S.Khairwal (A-1) cannot be made accountable for anything done by K.C Sharma (A-3) (since deceased).
OBSERVATION AND ANALYSIS
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 133 of 309
245. It is reflected from the allegations against accused persons that property No. 15 is stated to have been purchased in the name of Naraini Devi, mother of C. S. Khairwal (A-1). In order to establish the allegation that this property was actually purchased by C. S. Khairwal (A-1) in the name of his mother, prosecution had examined PW-35, PW-36, however, these witnesses have turned hostile and not stated anything with regard to the actual ownership of the property or the consideration being paid by C. S. Khairwal (A-1). It is further reflected that property number 16 is stated to be in the name of K.C.Sharma (A-3) (since deceased).
246. It has already been mentioned above that proceedings against K.C.Sharma (A-3) (since deceased) stands abated, therefore, no opinion can be formed against him. However, as per allegation K.C.Sharma (A-3) (since deceased) is stated to have been holding his property as benami of C. S. Khairwal (A-1). There is no evidence available on record by which it could be concluded that it was C. S. Khairwal (A-1) in actual who has funded that sale consideration of such properties. PW-143 during his entire examination has also not been able to place on record any such document vide which these properties can be said to be connected with C. S. Khairwal (A-1).
247. From the careful perusal of the record pertaining to the demolition of property no. 17, PW-60 and PW-61 have brought relevant official record which reflects that the property has been entirely demolished. If this fact is considered to be correct then CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 134 of 309how this demolished property has been assessed by PW-106 Naveen Kumar Jain does not appeal to senses. It is stated by the prosecution that the property in question was partly demolished which is reflected from the allegation of the charge-sheet itself, however, the document filed and relied by the prosecution itself reflects a different storey. Thus, the testimony of PW-60 and PW-61 and the allegations as per the charge-sheet seems to be contrary to each other.
248. With regard to valuation done by PW-106 Naveen Kumar Jain the relevant file is D-308 and the document is Ex.PW106/3. It is perused thoroughly, it appears from the perusal of the assessment and valuation done by PW-106 that the basis of assessment of value for construction is not mentioned properly. How the value has been taken by PW-106 and which particular circular of PWD have been followed has not been mentioned in the said report. Moreso, market value on the day of valuation seems to have been taken. The submissions made on behalf of accused seems to be valid on this aspect that PW-106 has not mentioned and discussed the approximate date of construction. Thus, in my considered opinion, even if this fact is ignored that as per testimony of PW-60 and PW-61 entire demolition has been carried out at plot No. 1675, Village Kishan Garh, no reasonable criterion to assess the valuation of construction seems to have been adopted or followed by PW-106 Naveen Kumar Jain.
249. Thus, keeping in mind the testimony of PW-55, PW-60 and PW-61 which is supported with Ex.PW55/1, Ex.PW55/2, CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 135 of 309Ex.PW55/3 and Ex.PW55/4(D-308) where it is mentioned that entire demolition has been carried out and not in part, the valuation report submitted by PW-106 Naveen Kumar Jain cannot be said to be free from doubt. Hence, it cannot be considered.
PROPERTY NO. 18 I.E. FLAT NO. 2298, VASANT KUNJ, NEW DELHI.
250. Prosecution in support of its story has examined PW-64 S. P. Gupta, who was Asstt. Director, DDA, Vikas Sadan, in SFS branch during 1997. He provided documents vide letter dated 15.12.1997 Ex.PW64/1 (D-247) pertaining to a flat allotted to Babu Lal Baswadia bearing No. 2298, Category-2, Pocket-243, Sector-B, Vasant Kunj. Allottee had made payment of Rs.8,20,502/-. It is further stated by PW-64 that there is a special power of attorney executed by Babu Lal Baswadia in favour of A-2 Sunil Khairwal which is Ex.PW64/3. Possession of this flat was taken by A-2 vide possession letter Ex.PW64/4. Details of payment made by various tenants Ex.PW64/6 has been furnished by A-2 Sunil Khairwal vide letter dated 07.10.1994.
251. From the testimony of IO PW-143 it is reflected that he has been cross examined with regard to property no. 18 as well and stated that he has recorded the statement of Sudesh Seth to whom the property is alleged to have been further sold by Sunil Khairwal (A-2), however, Sudesh Seth has not been called as a witness. IO has further stated that he has neither examined the seller nor purchaser of the property as stated by PW-143 in para No. 28 CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 136 of 309during his cross examination dated 02.08.2018.
ARGUMENTS ON BEHALF OF ACCUSED.
252. Property-18 Flat no. 2298, Vasant Kunj, in this regard it is stated that it has been purchased and sold during the check period, this property was in the name of Sunil Khairwal (A-2) and it is stated to have been transferred to one Sudesh Seth. Babu Lal was original allottee who was maternal uncle of Sunil Khairwal (A-2). It is stated that there is one SPA dated 21.09.1994 exhibit PW64/3. It is stated that entire payment was made by Babu Lal with regard to which there is one document Ex.PW64/D-1 (D247). It is further stated that (D-248) is GPA dated 01.11.1995 in this regard. It is stated that SPA cannot be considered as will.
253. It is further argued that Sudesh Seth was examined as one of the witness by IO and his statement was recorded and however, he has not been nor has witness examined by the prosecution. It is further stated that CBI has neither examine the sale deed nor the purchaser. CBI has also not place on record any document which could show the source of payment made by C. S. Khairwal (A-1) . It is argued on behalf of C. S. Khairwal (A-1) that only one aspect of the purchase of property is taken up and is attributed to C. S. Khairwal (A-1) whereas the property in question has been purchase and sold during the check period itself. If purchase is attributed to accused persons then as it has been sold therefore the proceed thereof should also be considered as income and it's benefit should be given to accused for which the charge sheet is CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 137 of 309silent.
OBSERVATION AND ANALYSIS.
254. It is a matter of record as reflected from D-247 and D-248 that the property is stated to have been purchased in the year 1994 and sold in 1995. As per charge-sheet, however, only the acquiring of asset has been attributed whereas the sale proceed thereof as it has been sold further as mentioned above, has not been attributed as income.
255. Further, as per record i.e. Ex.PW64/D-1 (D-247) the payment is stated to have been made by Babu Lal the original allottee who is stated to be maternal uncle of Sunil Khairwal (A-2). From the perusal of entire record it is reflected that there is no evidence contrary to the fact that the payment which is alleged to have been made by Babu Lal as reflected from PW-64/D1 has not been actually sourced by C. S. Khairwal (A-1). Thus, story of prosecution in this regard seems to be doubtful that the property is actually the benami of C. S. Khairwal (A-1) standing in the same of Sunil Khairwal (A-2) PROPERTY NO. 19 FLAT NO. 210, UNA CO-OPERATIVE HOUSING SOCIETY.
256. Prosecution in support of its story examined, PW-19 O.P. Pathak, with regard to Flat No. 108-B, UNA Enclave, Plot No-1, Mayur Vihar, New Delhi. He deposed that he became President of CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 138 of 309UNA Group Housing Co-operative Society since November, 1995 and one Mr. Dutta was the President of the said co-operative Society during the period 1981 to 1990 and Sh.R.K.Bali was the Secretary of that society. He further deposed that he had handed over one file regarding membership, making payments, allotment of flat No. 210-B in the said society of Kumari Manju Khairwal, daughter of C. S. Khairwal.
257. PW-19 had identified Ex.PW19/1 which is the file relating to UNA Group Housing Co-operative Society (D-289, 16 pages). PW-19 also identified the document Ex.PW19/1A which is the application submitted by Manju Khairwal for membership in the society. PW-19 also identified Ex.PW19/1B which are the affidavits dated 18.12.1991 submitted by Manju Khairwal [D/o C. S. Khairwal (A-1)] along with the said application form. PW-19 also identified the agreement exhibited as Ex.PW19/1C between Manju Khairwal and UNA Group Housing Co-operative Society.
258. PW-19 also identified the demand letters dated 28.01.1991 and 06.09.1990 exhibited as Ex.PW19/D (colly.) issued by society to Manju Khairwal bearing the signatures of R. K. Bali, Honorary Secretary of the society at point A. It is stated that vide these letters a sum of Rs.1,46,200/- and Rs.1,70,910/- were demanded from Manju Khairwal. PW-19 deposed that vide document Ex.PW19/1E he prepared a detail of payment received by Manju Khairwal, on the basis of receipts available, showing total amount of Rs. 2,52,708/- received against her membership No. M-665 and a Flat bearing No. 210B was alloted to her.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 139 of 309259. From cross-examination of PW-19, no material contradiction has emerged and he has stated the facts whatever he has deposed in his examination in chief.
ARGUMENTS ON BEHALF OF ACCUSED
260. This property stated to have been purchased in the name of Manju Khairwal on 05.09.2019. Manju Khairwal is stated to be minor, as per the record on 05.06.1990. She has not been examined by the prosecution. It is argued on behalf of accused persons that Manju Khairwal, who is daughter of C. S. Khairwal (A-1) has been filing her income tax return which show her financial position and potency and the documents filed by and on behalf of Manju Khairwal through accused persons pertaining to her income tax return have not been denied or disputed by prosecution. Also the status of financial position of Manju Khairwal who is a married daughter of C. S. Khairwal (A-1) has neither been filed nor has been made a part of the record.
261. It is stated that benefit of all the income claim by Manju Khairwal should be taken into record. It is stated by the accused after relying upon the landmark judgment case of J.Jayalalitha (supra) that income tax return are not a genuine source of income tax. This observation has been given with regard to public servant, however, Manju Khairwal is a private person. It is alleged that she was not having any source of income, however, all the documents relied upon by Manju Khairwal, filed through C. S. Khairwal (A-1) CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 140 of 309have not been considered by the IO.
262. Relevant document in this regard is D-289 which is file pertaining to allotment of flat no.210. Witness examined by prosecution in this regard is PW-19 O.P. Pathak. The date of birth of Manju Khairwal, as per the record, is having born in 1972. It is stated that loan has been taken for purchase of this property. PW19 O.P Pathak is the president of the society. The date of application for allotment of flat is September, 1990. It is stated that PW19 O.P Pathak was not the president at that time. Sh.R.K. Bali and Mr.Dutta who were office bearer, have not been examined. It is stated that payment has been made by and on behalf of Manju Khairwal, as per the record, during examination of PW19 no question has been put to the witness that Manju Khairwal was not competent to make payment. It is further stated that as per the record the birth certificate of Manju Khairwal reflected her date of birth as 12.01.1972. Thus, on the day of allotment i.e. September, 1990 she was major and not minor.
263. Relevant document relied upon by accused is Ex.PW19/1E (D-
289) this document reflects that loan has been taken up by Manju Khairwal. It is argued that no benefit of loan has been given either to Manju Khairwal or C. S. Khairwal (A-1). It is further argued that there is one defence witness D1W10 Kailash Chand Yadav, who has stated that as per the birth certificate of Manju Khairwal, her date of birth is 12.01.1972 and not 20.12.1972. It is further stated that all this relevant portion in this regard have been put to IO, PW143 during his examination, however, PW-143 has stated that CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 141 of 309he has not conducted any investigation with regard to the aspect of consideration paid for purchase of flat no. 210-B, UNA Cooperative Housing Society.
264. It is stated that it was the duty of prosecution to bring evidence pertaining to payment made from any other account. It has been further argued on behalf of accused that this flat in question has been given on rent as reflected from (D-266) and an income of Manju Khairwal to the tune of Rs. 33,600 for the period May,1995 to February,1996 has also been considered and no benefit of this income has been given.
265. There are other income from other property like F-85, East of Kailash, which has not been attributed to Manju Khairwal as her income. It is argued on behalf of accused that entire benefit of income has not been given to either Manju Khairwal or C. S. Khairwal (A-1) nor Manju Khairwal has been examined by the prosecution during entire trial. It is stated that income from F-85, East of Kailash is Rs. 1,35,000/- and not Rs. 60,000/-. There has been other agreement with regard to fixture and fittings for which an amount of Rs. 2,12,000/- should be assigned as income to either to C. S. Khairwal (A-1) or Manju Khairwal. It is further stated that benefit of income should be more. It is further stated that even if it is presumed, for the sake of argument, that nothing was done by Manju Khairwal then for any of her lapses on her part, C. S. Khairwal (A-1) cannot be made accountable.
OBSERVATION AND ANALYSIS.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 142 of 309266. It is a matter of record that this property No. 19 mentioned at page No. 18 of charge-sheet stands in the name of Manju Khairwal, D/o C. S. Khairwal (A-1). One of the argument put- forth by prosecution while raising allegation against C. S. Khairwal (A-1) is that Manju Khairwal was minor on the date when the flat was allotted. There has been a dispute regarding her date of birth. However, D1W10 Kailash Chand Yadav have been examined by defence who has brought on record the birth certificate of Manju Khairwal alleging her date of birth as 12.01.1972 controverting the allegation as per charge-sheet that date of birth being 20.12.1972. This birth certificate brought by D1W10 has not been controverted by prosecution during cross examination of this witness.
267. Moreso, Manju Khairwal is stated to be an income tax assessee. She is also stated to have availed loan as reflected from D-289. The rent agreement of Flat bearing No. F-85, East of Kailash and the property no. 19, Flat No.210, UNA Cooperative Housing Society is also shown to have been in her name. These facts have not been controverted by the prosecution nor any document contrary to this documentary evidence have been brought on record.
268. Therefore, in my considered opinion, Manju Khairwal cannot be said to be entirely dependent upon C. S. Khairwal (A-1). Moreso, there is no evidence brought on record, as already observed with regard to properties discussed above and which are to be discussed subsequently that no evidence has been led by the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 143 of 309prosecution to show any documentary evidence that C. S. Khairwal (A-1) has provided or funded the consideration for purchasing the property in question.
PROPERTY-20 AND 21 FARM HOUSE, B-5, ASOLA VILLAGE, CHATTARPUR, AND BOUNDARY WALL OF THIS FARMHOUSE AT VILLAGE ASOLA.
269. In support its case, prosecution has examined PW-54 Indru Malkani, who is a business man and is owner of 4-5 acre land in village Asola. He sold land to Jawaharlal and Rajender Sehgal. PW-54 stated that he was not aware as to whom Jawaharlal and Rajender Sehgal had sold the land further. No material contradiction has emerged emerged in the cross-examination of PW-54 and he has corroborated whatever he has stated in his examination-in-chief.
270. Next witness examined by prosecution is PW-87 Rajender Sehgal who was doing export business in the name of M/s Sona Enterprises. This witness did not recall that he was having financial transaction with Jawahar Lal Chhabara or he had issued any cheque to him. This witness was found to be resiling from his statement under 161 Cr.P.C., therefore, has been declared hostile. During his cross-examination, he has not supported the story of the prosecution at all.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 144 of 309271. Next witness examined by prosecution is PW-49 Jawahar Lal, who is a property dealer by profession working in Chattarpur area and he is stated to be the owner of land 12 bighas at village Asola, Delhi. It is stated by him that he executed sale deed dated 07.05.1993 as attorney holder of I.A.Malkani in favour of M/s MMG Enterprises which is Ex.PW14/A to Ex.PW14/C. This property was sold for Rs.4 Lakhs and the sale consideration was received from Sunil Khairwal (A-2) by way of cheques.
272. This witness was found resiling from his statement, therefore, has been declared hostile and was cross-examined by Ld. Special PP for CBI. During his cross-examination on behalf of prosecution PW-49 acknowledged that he had shown the land at Village Asola to Ajay Sharma. This witness has not supported the story of prosecution at all.
273. Next witness examined by prosecution is PW-14 Ajay Sharma, he is a property dealer and a farmer having his office at Asaf Ali Road. PW-14 stated that one Ashok Gaur contacted him that he was looking for a kothi in Greater Kailash Colony and willing to purchase it. This kothi was required for some of his known person. PW-14 thereafter contacted Arun Khullar property dealer of that area who gave reference of Rakesh Raina. PW-14 stated that he had not shown any property to Ashok Gaur. This witness was found resiling completely from his earlier statement given under Section 161 Cr.P.C and found not supporting the story of prosecution at all, therefore, has been declared hostile. PW-14 has CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 145 of 309denied that he was instrumental in sale of kothi E-286, Greater Kailash - I. PW-14 also did not identify A-1 stating that he had not met him. PW-14 however, has identified his signature on registered documents in the capacity of witness. He has stated that he was present at the time when registered deed was executed.
274. This witness has identified his signature on document Ex.PW1/A, Ex.PW1/B, Ex.PW1/D, Ex.PW1/E, Ex.PW1/F, Ex.PW1/G and Ex.PW1/J. This witness has further expressed his ignorance about deal of another land 2.5 acre farm house located in village Asola, Mehrauli near Fatehpur had taken place through him. PW-14 has not thrown any light about payment of sale consideration by way of installments by and on behalf of C. S. Khairwal (A-1). PW-14 has denied the sale of farm house at Village Asola Ex.PW14/A, Ex.PW14/B, Ex.PW14/C was made through him.
275. During his cross-examination on behalf of A-1, PW-14 has stated that he had signed the documents as witness at the request of Ashok Gaur.
ARGUMENTS ON BEHALF OF ACCUSED PERSONS.
276. It is stated that this property No. 20, as mentioned at page No. 18 of the charge-sheet, as per record, has been purchased by M/s MMG Agro Enterprises. As per the previous chain of document filed on judicial record, it has been shown 25 Bigha was purchased for 8.5 Lakhs, however, one half of this land is shown to have been sold for Rs. 49 Lakhs how this figure has been arrived at or CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 146 of 309calculated by IO during investigation has not been explained. It is stated on behalf of accused person that as per the circular of CBI, unless and until the market value is specifically establish by way of evidence, only the registered value mentioned in the document should be considered. It is stated that CBI has failed to explain as to how and why a much higher value has been taken.
277. PW54 I.A Malkhani has stated nothing with regard to sale consideration being Rs. 49 Lakh during his entire examination. He has stated that he sold the property to one Jawahar Lal in June/July,1992. PW87 Rajender Sehgal is another witness examined by prosecution who stated that Jawahar Lal was a property dealer. It is further stated that none of these witnesses i.e., PW-49, PW-54 and PW-87 have stated any fact pertaining to additional payment being made. PW49 further stated that he has not paid anything to Sunil Khairwal (A-2) with regard to property mentioned at serial no.21 i.e., boundary wall at property mentioned at serial no. 20.
278. It is argued on behalf of accused that I.A. Malkhani purchased the land in question alongwith boundary as reflected from document itself i.e. D-287 except PW54/4. It is further stated that a document in favour of MMG Enterprises is Ex.PW14/B and document of sale in favour of M/s MMG Enterprises is Ex.PW14/B which is dated 07.05.1993 (D-281). It is argued that none of these documents talks about instance of boundary wall at the property in question. It is therefore argued that the value of property no. 21 as CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 147 of 309Rs.13,36,107/- has been wrongly arrived and attributed to accused persons.
OBSERVATION AND ANALYSIS
279. From the testimony of witnesses examined with regard to property No. 20 and 21, none of the witness has stated anything with regard to payment being made by C. S. Khairwal (A-1). Prosecution has not brought on record any other evidence to show that it was C. S. Khairwal (A-1) who had actually financed the sale consideration and provided the money to Sunil Khairwal (A-2). The testimony of witnesses examined by prosecution is silent on this aspect. Sunil Khairwal (A-2) during argument have not disputed the fact payment was made by Sunil Khairwal (A-2).
280. Attention of the court has been drawn towards the value assigned to this property has highly exaggerated as the entire piece of land purchased by previous owner is stated to have been sold for a sale consideration of Rs.8.5 lakhs, however, half of the property is being sold for Rs.49 Lakhs. No explanation in this regard have been furnished by the prosecution regarding the valuation assigned to property No. 20 to the tune of Rs.49 Lakhs. Thus, in the absence of any evidence to the contrary this property cannot be said to be linked with C. S. Khairwal (A-1) as benami.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 148 of 309
PROPERTY NO.22 AND PROPERTY NO.24 I.E. 34,
GAUTAM APARTMENT, SFS DDA FLATS AND FITTINGS IN FLAT NO. 34, GAUTAM APARTMENT, SFS DDA FLATS.
281. One of the witness examined by prosecution is PW-30 M. L. Ahuja, who was Assistant Director in Self Finance Scheme Section of DDA. This witness has stated that one flat in Gautam Apartment, Gautam Nagar, New Delhi was allocated in the name of Birbal Khairwal on 25.02.1982. The concerned file No. F-31 (1101)82/SFS/GN-III of DDA pertaining to Flat No. 34, Gautam Apartment, Gautam Nagar, New Delhi (D-222) is exhibited as Ex.PW30/1.
282. PW-30 has stated that as per record possession of this flat was given to Smt. Kampoori Devi on the basis of lease deed which is available at page No. 63-64 of this file. As per the challans available in the file Ex.PW30/1 an amount of Rs. Rs.32,000/- was deposited vide challan No. 9414 dated 29.03.1982, Rs. 37,600/- was deposited vide challan No. 15433 dated 30.07.1983, Rs.30,000/- was deposited vide challan No. 98588 dated 26.11.1983, Rs.47,000/- was deposited vide challan No. 15435 dated 09.09.1983, Rs. 7,600/- was deposited vide challan No. 368 dated 31.01.1985, Rs. 1,859 was deposited vide challan No. 15596 dated 08.04.1986, Rs. 70,000/- was deposited vide challan No. 15604 dated 08.04.1986, Rs.37,000/- was deposited vide challan No. 19719 dated 19.07.1989 and Rs. 2,762/- was deposited vide challan No. 8058 dated 20.07.1989. In total amounting to CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 149 of 309Rs.2,65,821/-. The challan dated 29.03.1982 is Mark PW30/A. Challan dated 09.09.1983 and 26.11.1983 are Ex.PW30/3 and Ex.PW30/4. Challan dated 30.01.1985 is Ex.PW30/3 and Ex.PW30/4. Challan dated 30.01.1985 is Ex.PW30/5. Two challans dated 08.04.19896 are Ex.PW30/6 and Ex.PW30/7. Challan dated 1907.1986 is Ex.PW30/8 and challan dated 20.07.1989 is Ex.PW30/9.
283. During his cross-examination no material contradiction has emerged and he has corroborated the facts as stated in his examination in chief.
284. Another, witness examined by prosecution is PW-73 Pawan Kumar Ralhan, who is resident of Flat No. 30, Gautam Apartment where Abha Tyagi is stated to be residing at Flat No. 34, SFS, Gautam Apartment. This witness stated that he does not know whether Abha Tyagi was the owner of the flat or not. This witness was found to be resiling from his statement under 161 Cr.P.C., therefore, has been declared hostile. During his cross-examination, he has not supported the story of the prosecution at all.
285. Next witness examined by prosecution is PW-140 Prabhat Chander Sharma, who was DSP, ACB, CBI in 1996 and participated in the investigation of present case. He along with Inspector Azad Singh and other CBI officials as well as two independent witnesses namely Ishwar Singh and M. C. Arya, conducted search at the premise no. 34, Gautam Apartments, SFS, CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 150 of 309DDA, Gautam Nagar, New Delhi.
286. During search foreign currencies and various documents relating to flat, receipt book of Birbal Charitable Trust, bottle of liquors, gold and silver coins and FDR were seized vide memo dated 19.02.1996 exhibited as Ex.PW140/1 (colly.) (D-25). During search various articles were found whose value has been mentioned as per inquiry made from Abha Tyagi as well as in consultation with independent witnesses present there, which is mentioned in observation memo dated 18.02.1996 /19.02.1996. This observation memo is Ex.PW140/2 (colly) D-26.
287. During search, the garage attached to this flat was also searched where a beauty parlour was found being run by one Santosh Sharma, for which observation memo exhibited as Ex.PW29/1 (D-33) has been prepared. It was observed by PW-140 that when such team had reached at Flat No. 34, C.S.Khairwal (A-
1) along with Abha Tyagi and one servant had left the premises.
288. It is further stated by PW-140 that in order to locate Abha Tyagi and C. S. Khairwal (A-1), he along with IO went for their search and visited village Asola at a farm house which was stated to be belonging to C. S. Khairwal (A-1). They also visited farm house at K-225, sainik Farm where one caretaker Okheel said that it was owned by C. S. Khairwal (A-1). No material contradiction has emerged from the cross examination of this witness and he has corroborated whatever he has stated in his examination in chief.
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Page No. 151 of 309289. Next witness examined by prosecution is PW -141 Azad Singh, who was inspector ACB, CBI in the year 1996 and participated in the investigation of the present case. He conducted search upon authorization issued by IO, at premises 34 Gautam Apartment SFS DDA Flat in the presence of independent witnesses namely Ishwar Singh, M.C.Arya and other CBI officials. This witness has stated similar facts, as stated by PW-140.
290. Besides that it is further stated that he also conducted search at 10/61 Modern Basti Industrial Area New Delhi which was office of Rakesh Goel C.A. and during search ITRs of Sunil Khairwal (A-
2) were seized vide search cum seizure memo Ex.PW114/1 (D-30). PW-141 also conducted search at premise no. A-209, 212 and 213, Budh Nagar Inderpuri, Delhi occupied by one Sh.Kalyan Singh Nagar. Vide search memo Ex.PW134/1. During his cross- examination, it is stated that P.C. Sharma, the member of search team had left the spot in search of Abha Tyagi. He brought Abha Tyagi at the spot at about 05:00 PM in the evening of 18.02.1996.
291. Next witness examined by prosecution is PW-29 M. C. Arya who was head TTE at Old Delhi Railway Station in the year 2010. In the year 1996, he was ticket collector at New Delhi Railway Station. He was part of CBI team who had searched the premises of accused persons in February, 1996. This witness acknowledged the observation memo exhibited as Ex.PW29/1 dated 18.02.1996 (running into two pages) (D-33) bearing his signature at point A. During his cross examination no material contradiction has CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 152 of 309emerged and he has corroborated the facts as stated in his examination in chief.
ARGUMENTS ON BEHALF OF ACCUSED PERSONS.
292. It is argued that as per the record, this property has been purchased by Birbal Khairwal and it has been transferred to Kampoori Devi, who is the sister of C. S. Khairwal (A-1). It is argued that this property has been purchased by Birbal Khairwal in 1991 and has been transferred to Kampoori Devi, who is sister of C.S.Khairwal (A-1), by way of Will and has been questioned by the prosecution for the reason that Birbal Khairwal was not having enough sources, so whatever he had purchased was sourced and financed by C. S. Khairwal (A-1) only.
293. With regard to release deed, it has been further alleged by the prosecution that when the Will in question is there, then for what reason this release deed has been executed on 28.07.1989. It is stated on behalf of accused persons that Will in question was executed on 17.09.1987.
294. One witness D1W8 Rajesh Shankar, has been examined by accused C. S. Khairwal (A-1). It is stated that intimation regarding Release deed and Will in question was properly intimated to his department by C. S. Khairwal (A-1) on 12.05.1989. An enquiry CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 153 of 309was conducted by department in this regard and it was properly communicated on 21.05.1990 vide exhibit Ex.D1/W8-B. This witness brought record pertaining to service record of C.S. Khairwal (A-1). It is argued that vide exhibit Ex.D1/W8/B-1 C. S. Khairwal (A-1) had disclosed the sale of land and Will in question executed by Birbal Khairwal to his department. It is argued that once all these steps have been taken and are within the knowledge of his department, well within time, then the Will in question neither can be doubted nor it can be said to be a fabricated document.
295. It is stated that income from unlawful sources are those which have not been duly intimated to the concerned authority. IO conducted no investigation to verify the allegation that the intimation made by C.S. Khairwal (A-1) to his department was not proper and the source in procurement thereof, was not legal. It is stated that by one PW30 M.L. Ahuja examined by the prosecution that as per the record this flat was assigned to Kampoori Devi, on the basis of Release deed. It is further argued that the entire payment in this regard has been made by Birbal Khairwal till 1986, and by some other person on 19.07.1989 and 20.07.1989. It is stated that except the two payment of Rs.37,000/- and Rs.2,762/- all the payments have been made by Birbal Khairwal. It is further argued that whatever the case may be, there is no evidence from the side of prosecution to show that C. S. Khairwal (A-1) had made this payment and not made by Birbal Khairwal.
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Page No. 154 of 309296. It is further argued that one raid was conducted on this flat i.e Property no.22, and it was found that Abha Tyagi was the tenant in this property at the time of raid. PW-73 Pawan Ralhan, has been examined by the prosecution in this regard, however, this witness is stated to be neighbor of flat no. 34, Gautam Apartment, SFS DDA Flats who has turned hostile and has not supported the story of prosecution at all. It is further stated that PW143 i.e., IO of the case has been cross examined on this aspect and he has stated in his cross examination that with regard to payment of Rs.37,000/- and Rs.2,762/- , he has not conducted any investigation as to who made the payment therefore these two sum of money i.e Rs.37,200/- and Rs.2,762/- cannot be attributed to C. S. Khairwal (A-1) .
297. With regard to fixture and fittings i.e property no.24, it is stated that one witness namely Shobha Bhartwal, D1/W13 has been examined by accused person alleging that Abha Tyagi was convicted in excise case of liquor as during raid various liquor bottles were found from the flat in question and as Abha Tyagi was found having the possession of the flat in question, therefore, the case was registered against her. It is argued that there is a detailed order for conviction in this regard in which rent agreement in the name of Abha Tyagi has also been considered and examined. These documents have not been filed on record by IO deliberately. It is argued that C. S. Khairwal (A-1) cannot be supposed to file this rent agreement as Kampoori Devi being his sister is the owner of the flat and the rent agreement is in the name of Abha CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 155 of 309Tyagi on which C. S. Khairwal (A-1) has no control. It is further argued that this fact reflects that the flat in question is neither in the name of C.S.Khairwal (A-1) nor he was found having possession thereof.
298. It is further argued that as per D-252, various document and certificate of son of Kampoori Devi having address as 34, Gautam Apartment, SFS DDA Flats with regard to Will, ration card etc have not been filed on record. It is stated that none of the person who has been a witness in Will in question have been examined by the IO nor any such person has been brought as prosecution witness. It is argued that these persons were available but IO has not made any effort in this regard.
299. With regard to CFSL report of Will in question it is argued that the expert who had given his report had expired prior to his examination, hence this report cannot be sought to be proved by any other witness examined by the prosecution. It is further argued that even in ration card of 34, Gautam Apartment, SFS DDA Flats the name of Kampoori Devi is mentioned. Thus, the flat in question was not at all in possession of C. S. Khairwal (A-1) . Prosecution has examined various witness like PW29, PW140, and PW141, however, none of these witnesses have deposed reflecting that property No. 22 and 24 was not only in possession of C. S. Khairwal (A-1) but he had funded the payment of entire installments and had purchased this property as benami in the name of Birbal Khairwal and Kampoori Devi.
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Page No. 156 of 309300. With regard to the property mentioned at serial no. 24, no valuer was present at the spot at the time of raid. Thus, this value has not only been wrongly attributed and assigned to C.S. Khairwal (A-1) but as assessment is arbitrary and without any basis. It is stated that at the time of raid, one beauty parlour was found to have been running from the garage attached to flat in question which was being run by one Santosh Sharma, it is stated that it was given by Abha Tyagi to her. It is argued that this fact is mentioned in document D-33, however, Santosh Sharma has neither been cited as witness nor examined by the prosecution.
301. With regard to liquor case alleged against C. S. Khairwal (A-
1) alongwith Abha Tyagi, the relevant witness examined by prosecution is PW-140 and PW-141 and the relevant document in this regard has been filed on record. It is argued that as per findings given vide this document, it is reflected that if did not support the story of prosecution.
302. With regard to fittings and fixtures the details have not been given as well. It is further argued that Kampoori Devi was available throughout the entire investigation and the trial, but she has not been examined by the prosecution.
OBSERVATION AND ANALYSIS
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Page No. 157 of 309
303. It is a matter of record that property No. 22 is initially in the name of Birbal Khairwal and then it is stated to have been transferred by way of Will to Kampoori Devi who is sister of C. S. Khairwal (A-1). Attention of the court is drawn towards D-24 which is the documents pertaining to wealth tax return of Birbal Khairwal these return shows the loan of Rs.1 Lakhs. PW-30 M. L. Ahuja has stated that property No. 22 i.e. flat in question was allotted to Kampoori Devi on the basis of relinquishment deed.
304. The relevant documents relating to payment made regarding flat in question are Ex.PW30/1 to Ex.PW30/9 (D-222). Except two payments of Rs. 37,000/- dated 19.07.1989 and Rs.2,762/- dated 20.07.1989 all the payments are shown to have been made by Birbal Khairwal till 1986. These two payments as mentioned above of Rs.37,000/- dated 19.07.1989 and Rs.2,762/- dated 20.07.1989 are shown to have been made by some other person.
305. In none of the payments made with regard to flat at Flat No. 34, Gautam Nagar, SFS DDA, it is shown to have been made by C. S. Khairwal (A-1). Thus, the onus in this regard as per law is upon prosecution to show that all these payments have been funded/sourced by C. S. Khairwal (A-1). None of the witness examined by prosecution, however, has stated anything in this regard. Thus, mere allegation in the charge-sheet as well as oral testimony of PW-143, IO it cannot be presumed that this fact has CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 158 of 309been established and proved by prosecution beyond doubt.
306. One of the important thing to be noted in the present case is that at the time of search conducted at property No. 22 mentioned at page No. 18 of the charge-sheet, it was found to be in the name of Kampoori Devi, Sister of C. S. Khairwal (A-1) and it was found to be in possession of Abha Tyagi. All these facts are being reflected from the testimony of PW-140 and PW-141 which further reflects that a case under Excise Act was registered against Abha Tyagi in which she has been convicted.
307. The observation made in the relevant documents pertaining to the case against Abha Tyagi, it is reflected that Abha Tyagi was having possession of the flat in question in the capacity of tenant and as per the rent agreement, though not filed by the prosecution but reflected from the relevant documents of the concerned case, Kampoori Devi was shown as landlord. From the garage attached with flat in question, one beauty parlour is also found to be running by one Santosh Sharma. This fact has not been controverted in the charge-sheet nor any document contrary to it has been filed on record.
308. It is also reflected from the record that from the documents recovered during search conducted at the flat in question, ration card of Kampoori Devi and family was found which reflects her address as Flat No. 34, Gautam Apartments, SFS, DDA. This fact has also not been controverted by the prosecution.
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Page No. 159 of 309309. Coming to the plea of relinquishment deed dated July, 1989 and Will dated 17.09.1989. It is reflected from testimony of D1W8 Rajesh Shankar that the fact pertaining to Will has been intimated by C. S. Khairwal (A-1) to his department already on 12.05.1989. It is also reflected from the record that department of C. S. Khairwal (A-1) has accepted this declaration. No discrepancy is alleged by the department. PW-73 Pawan Ralhan neighbour of Flat No. 34, Gautam Apartments, SFS, DDA examined by the prosecution has not supported the story of prosecution at all.
310. Therefore, all these facts which have not been controverted by the prosecution, indicate nothing but the fact that prosecution has not been able to show from the record that property No. 22 has been actually purchased by C. S. Khairwal (A-1). It has already been discussed in the above mentioned para that prosecution has not been able to establish the fact that Birbal Khairwal was a poor person and had no sufficient means to have such huge sum of money/wealth by which he could have purchased all such properties. With regard to fittings in Flat No. 34, Gautam Apartments, SFS, DDA, as per allegation prosecution has assigned sum of Rs.2,32,072/- to C. S. Khairwal (A-1).
311. From the above discussion it is reflected that the flat in question was neither in possession of C. S. Khairwal (A-1), nor is in his name as per title deeds, nor prosecution has been able to CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 160 of 309show that any payment was made by C. S. Khairwal (A-1) directly or through some other person. All the payments except two payment of Rs.37,000/- and Rs.2,762/- are shown to have been made by Birbal Khairwal. Thus, the evidence led by prosecution in this regard is not sufficient, in my considered opinion to discharge the burden of proving this fact on them.
PROPERTY NO. 23 AND 25 MENTIONED AT PAGE NO. 19OF THE CHARGE-SHEET.
312. Both these properties as per record are in the name of Ram Swaroop and K.C.Sharma (A-3) (since deceased) and are shown as benami property of C. S. Khairwal (A-1). The flat at Mayur Vihar i.e. property No. 23 is stated to have been allotted on 11.03.1994.
313. Prosecution in this regard has examined PW-90 M. C. Mittal who is Bank official Allahbad Bank, Timarpur. He handed over statement of account of M/s Smriti Marketing & Communication Ex. PW 90/1 (D-240). He also handed over true copy of cheque No. 46210 dated 13.05.1994 from account of M/s Smriti Marketing & Communication, credit voucher dated 13.05.1994 for preparation of bankers cheque in favour of Puneet Co-operative Group House Society and true copy of banker's cheque dated 13.05.1994.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 161 of 309314. Next witness examined by prosecution is PW-123 Ram Swaroop, who was doing transport business and driving Tata 407 in the year 1995. He knew C.S. Khairwal (A-1) and Sunil Khairwal (A-2). CBI took his specimen signature and he identified the same.
315. During his cross-examination, this witness stated that in the year 1997, he was allotted a plot bearing no. 23, Pocket-1, Sector- 16, Rohini which was sold for Rs. 2,50,000/-. This witness expressed his ignorance to the name of purchaser of the plot. He further stated that he had only deposited Rs. 5,000/- for allotment and did not pay rest of the amount. He further stated that he purchased a plot no. R-917 at Raghubir Nagar for Rs. 66,000/- and constructed it upto three floors by spending Rs. 34,000/-. This plot was purchased by PW-123 after selling the plot at Rohini. This plot at Raghubir Nagar was sold for Rs.2,00,000/- but he do not remember the name of purchaser.
316. It is further stated that PW-123 was allotted a shop no. 70, Raghubir Nagar by DDA. PW-123 is stated to be having three auto rickshaws. It is further stated that he had applied for a flat in Puneet Group Housing Society. He had paid a sum of Rs.110/- as membership fees and had also Rs. 3,70,000/- with the society for its allotment.
317. He, his wife and daughter opened bank accounts in Oriental CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 162 of 309Bank of Commerce in the year 1995. He deposited Rs. 2,50,000/- in his account. His wife deposited Rs. 1,50,000/- in her account and Rs. 1,00,000/- was deposited in the account of his daughter. It is stated by PW-123 that he deposited the amount in above mentioned accounts by himself. These accounts were later on seized relating to present case for which he had filed objections Ex. PW 123/D-1 before District Judge . However, no other witness in this regard has been examined by the prosecution.
ARGUMENTS ON BEHALF OF ACCUSED PERSONS.
318. It is argued that allotment of this flat has been made on 11.03.1994 in the name of Ram Swarup. It is alleged that it is the benami property of C. S. Khairwal (A-1). Ram Swaroop had alleged that he sold various properties to various persons. IO has not examined any such purchaser to verify the veracity of facts alleged by him. It is argued that Ram Swarup was examined U/s 161 Cr.PC he has also filed his affidavit before Ld. District Judge, wherein he had claimed this property belonging to him.
319. Ram Swarup is stated to be brother-in-law of C. S. Khairwal (A-1) and is in the business of transport. It is argued that he has a number of properties and vehicles in his name since 1978 or even prior to that. It is argued that with regard to potency and financial status of Ram Swarup prosecution has examined various witnesses one of such witnesses PW-90 N.K. Mittal who is witnesses from CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 163 of 309Allahabad Bank with regard to owner of M/s Smriti Marketing and communication. Ram Swarup has been examined as PW-123 he has not supported the story of prosecution at all.
320. It is further argued that PW143 has been examined at length by accused persons. However, it is reflected that from the record this property has never been transferred to Sunita Khairwal, D/o C. S. Khairwal (A-1) . It is further argued that prosecution has not been able to bring on record any document with regard to M/s Smiriti Marketing or its owner/proprietor.
PROPERTY NO.25: 500, SQ. YD KILLA NO. 25/01, VILLAGE, KISHAN GARH, VASANT KUNJ, NEW DELHI.
321. It is stated that this property is alleged to be in the name of K.C Sharma (A-3) (since deceased) however, prosecution has not examined any witness with regard to the property in question therefore there is no evidence in either form during trial from the side of prosecution by which this property can be said to be the benami property of C. S. Khairwal (A-1) .
OBSERVATION AND ANALYSIS.
322. From the testimony of above mentioned witnesses examined CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 164 of 309pertaining to property no. 23 and 25, it is reflected that no investigation has been conducted by IO pertaining to the financial status of Ram Swaroop that he was not having enough money to purchase the property no. 23. It is further reflected that there is no evidence direct or indirect reflecting that it was C. S. Khairwal (A-
1) who has supplied financial support or funded the purchase of property No. 23. IO has either not conducted any investigation regarding ownership of M/s Smriti Marketing or if conducted, no such document has been placed on record.
323. Moreover, PW-123 has furnished in his evidence the details of cash in his hand for purchase of the property. Similarly, with regard to property No. 25 the allegation in the charge-sheet are mere oral. Property No. 25 is shown to have been in the name of K.C.Sharma (A-3) (since deceased). Proceedings against him stands abated there is no document pertaining to his financial position or potency or showing that he was working on behalf of C. S. Khairwal (A-1) as his agent who used to manage and divert the money not earned from lawful sources, converting into various properties as benami. Thus, in the absence of any evidence to the contrary, in my considered opinion, just like other immovable properties as mentioned above prosecution is not able to show that the property in question is held by C. S. Khairwal (A-1) as his benami property.
MOVABLE ASSETS MENTIONED AT PAGE NO. 25 AND 26CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 165 of 309
OF THE CHARGE-SHEET
324. With regard to movable assets mentioned at page No. 25 and 26, prosecution has examined a number of witnesses. With regard to movable property mentioned at serial No.1 page No. 26 of charge-sheet prosecution has examined PW-100 Rajesh Verma, who was Custom Appraiser jewellery expert at Foreign Post Office Kotla Road New Delhi in 1997. He was asked to examine jewellery lying in locker in the name of A-2 Sunil Khairwal at UCO Bank, Delhi High Court which was opened in his presence. He furnished his report dated 30.04.1997 exhibited as Ex.PW100/2 (D-40). It is stated by PW-100 that he prepared his report on the basis of prevalent market rate at that time.
325. During his cross examination it is stated by PW-100 that he was told by CBI that the locker was in the name of Sunil Khairwal (A-2), however, he had not personally verified the documents from the bank. It is also stated by this witness that he has not mentioned in his report assessment with regard to 4Cs i.e., cut, carat, colour and clarity. It is further stated that he cannot tell the age of the article. PW-100 has admitted one thing that on locker operation memo as well as in his report exhibited as Ex.PW100/2, there were signature of Anu Khairwal. It is further stated that purity of jewelry was ascertained on the basis of their weight and prevalent market value.
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Page No. 166 of 309326. PW-143 who is IO in this case has been cross examined in this regard and it is stated by him that he has not mentioned the date of acquisition of these articles. No inquiry qua acquisition of jewelery in order to ascertain its owner has been done. It is further stated that disclosure statement of Sunil Khairwal (A-2) has not been recorded and IO has not examined Anu Khairwal.
327. With regard to article mentioned at Sr. No. 2 of page No. 26 of charge-sheet prosecution has examined PW-112 and PW-142. PW-112 Dharmender Kumar, who was ticket collector at New Delhi Railway Station in 1996 had deposed that he was part of search conducted at the premises of C.S.Khairwal (A-1). Search was conducted in his presence on 19.02.1996. Search memo is Ex. PW 112/1 (D-16).
328. Next witness examined by prosecution is PW -142 Vipin Kumar Verma, who was Sub-Inspector ACB CBI in the year 1996 and was part of investigation. He conducted search at premises D1/78, Rabinder Nagar, New Delhi which was in the possession of C.S.Khairwal (A-1) on 18/19.02.1996 search was led by IO S.K. Peshin. Observation memo of the articles found at the premises regarding dated 19.02.1996 is Ex.PW142/1 (D-17) which was prepared containing the details, value time of acquisition and mode of acquisition, as per inquiry made from C. S. Khairwal (A-1) and consultation with independent witness. There is another observation memo dated 19.02.1996 exhibited as Ex.PW142/2 (D-
18) containing the signature of PW-142, signature of IO S.K. CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 167 of 309Peshin and signature of C. S. Khairwal (A-1) as token of receipt of the articles which were returned to C. S. Khairwal (A-1).
329. PW-142 also participated in search conducted by Rajesh Kumar at the residence of Smt. Kampoori Devi at Jaswant Nagar Colony, Simbhalbhatta, Bharatpur, Rajasthan during which certain documents were seized vide seizure memo Ex.PW31/A (D-28). PW-142 also participated in search conducted on 13.03.1996 during which Kailash Chand Gupta produced bunch of keys of car bearing No. DL 2CC 3080 belonging to C. S. Khairwal (A-1) and a bag containing miscellaneous papers, which were seized vide seizure memo exhibited as Ex.PW142/3 (D-49).
330. PW-142 also participated in search conducted by IO in the presence of J.C.Sharma and A.S.Maan at premises no. C-63, Panchsheel Enclave, New Delhi which was in occupation of Mukesh Jain. During search various documents and a cash of Rs. 4 Lakhs were found there. PW-142 has stated that Mukesh Jain told that it was remaining amount from Rs. 42.80 Lakhs received from C. S. Khairwal (A-1) from sale proceed of his property no. E-286, G. K.- I, Delhi through Rakesh Sena and Ashok Gaur.
331. It is further stated by PW-142 that Mukesh Jain has further stated that he was also carrying the payment by way of two pay orders of Rs.20 Lakhs each and commission of Rs. 40,000/- to be paid to property dealer. This explanation is recorded in search cum seizure memo dated 12.03.1996 exhibited as Ex.PW142/4 (D-50).
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 168 of 309332. During his cross-examination, on behalf of A-1 it is stated by PW-142 that the raiding team did not carry any weighting balance machine with them. The team members had not made any effort to ascertain the exact weight, value and period of acquisition of jewelery items mentioned in Ex.PW142/2.
333. Another witness examined by prosecution in this regard is PW-50. PW-50 Sanjay Anand is Manager FCI, Headquarter, New Delhi and was working as Assistant Grade-III, FCI in March 1996. PW-50 was part of CBI team who had conducted raid at Panchsheel Enclave. It is stated by PW-50 that during search Rs.10,00,000/- was recovered from the house. It is stated to have been recovered from a bed. Seizure memo dated 12.03.1996 exhibited as Ex.PW50/1 (D-46) bears his signature at point A. It was prepared at site in his presence. During his cross- examination, PW -50 has stated that investigation and recovery of currency notes were carried out in his presence on 12.03.1996.
334. With regard to item mentioned at Sr. No. 3 and 4 at page No 26 of the charge-sheet, prosecution has examined PW-39 Ashok Gaur, who was Assistant Engineer from DSIIDC in the year 2013. He was posted as Assistant Engineer in Delhi Energy Development Agency from 1985 to 2006. He is known to C.S.Khairwal (A-1) who was Director of Delhi Energy Development Agency (DEDA) during 1985 -1987 and was also having charge of Director, Transport Department. PW-39 has stated that Abha Tyagi was working as PA to C.S.Khairwal (A-1). PW-39 has further stated that Ajay Sharma (PW-14) property dealer and agriculturist, is his CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 169 of 309distant relative. PW-39 stated nothing with regard to Sale Deed of plot E-286, Greater Kailash, East of Kailash, New Delhi. This witness was found resiling from his statement, therefore, has been declared hostile and was cross examined by Ld. Special PP for CBI. This witness has not supported the story of prosecution at all.
335. Next witness examined by prosecution is PW-5 Om Prakash, this witness has not supported the story of prosecution at all and has been declared hostile. This witness stated that Kalyan Singh Nagar had given a bag to him to keep it in his safe custody which was given by him to Harish Mehta. Harish Mehta was also present there. PW-5 stated that the bag in question was recovered by CBI from the house of Harish Mehta and not from his house. PW-5 has further stated that Kalyan Singh Nagar had told him that the articles lying in the bag belongs to him. All the relevant suggestions given by prosecution have been denied.
336. Next witness examined by prosecution is PW-27 Harish Mehta, is a photographer running a shop by the name Mehta Movie Makers at F-45, West Patel Nagar, New Delhi. PW-27 had stated that Om Prakash, PW-5 had kept two plastic bag in his shop stating that he had to get photocopy of some document. PW-27 had stated that Om Prakash had not disclosed about the documents, and when CBI team visited his shop, he handed over these bags to CBI but had not checked its contents or documents. PW-27 identified his signature on memo dated 04.03.1996 (D-81) exhibited as Ex.PW5/B at point B, however, failed to identify the signatures of other persons. PW-27 stated that this memo was regarding seizure CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 170 of 309of articles i.e. two plastic bags from his shop.
337. This witness was found resiling from his statement, therefore, has been declared hostile and was cross examined by Ld. Special PP for CBI. During his cross-examination PW-27 had stated that the goods recovered from his shop were not belonging to him and he do not know to whom they belonged to.
338. Next witness examined by prosecution is PW-97 M. S. Chauhan who was jewellery appraisal Foreign Post Office, New Delhi. CBI sought his report for valuation of gold and diamond jewellery for which he submitted his report dated 07.05.1996 Ex. PW 97/1 (D-39) pertaining to item No. 3 mentioned at page no. 26 of charge sheet. During his cross-examination, it is stated by PW- 97 that age of jewellery cannot be ascertained.
339. Next witness examined by prosecution is PW-28 Kalyan Singh Nagar, who is stated to be the childhood friend of A-1. This witness has stated that Birbal Khairwal, father of A-1 was having sheeps and goats and agricultural land as well as shops at Mau Ibrahimpur. It is stated that Birbal Khairwal shifted to Delhi somewhere in 1970 or 1980 and started living near R. K. Puram. He was having a shop at Naroji Nagar and used to sell fruits and vegetables. Birbal Khairwal expired in the year 1986 or 1987. PW-28 has stated that he had not heard the name of MANSO ABSU Departmental Store.
340. PW-28 has stated that during investigation he took CBI CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 171 of 309officials to the shop of Khusi Ram, his friend. He also took CBI team to residence of Om Prakash (PW-5) at Uttam Nagar. PW-28 has stated that he kept Rs. 6 Lakhs cash in the shop of Khushi Ram in his brief case. He had placed this briefcase containing cash with Khushi Ram as he was planning to go outside alongwith his family members and wanted to keep the briefcase in safe custody. PW-28, however, did not remember the number of lock of briefcase which was broken by CBI team. PW-28 has further stated that he had filed an application before the court to release this amount to him, however, it has been declined. PW-28 also took CBI team to the house of Om Prakash (PW-5) stating that he had kept two plastic bags containing jewelery and cash at his house.
341. Jewelery articles including one set of ponchi (two), one necklace, 6 gold bangles, one gold kada, one set of earrings, one tika. When the case property was shown to PW-28 he identified all the articles which were seized by CBI from the house of Om Prakash. It has been observed during examination that the case property i.e. potli bearing description of this case number produced before the court was unsealed. It was found containing another potli which was again unsealed. From this potli above mentioned articles and gold bangles were found. PW-28, however, did not identify one yellow coloured male wrist watch make Ramisson, which was recovered from the potli (pouch). It is stated by the witness that two gold coins found in blue colour box does not belong to him. It is further stated that one red colour pouch was found containing two ring, one of yellow colour and one of white colour and one piece of cloth wrapper was found for which it CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 172 of 309is stated that it does not belong to him. This potli is exhibited as Ex.PW28/2. During examination, after opening the case property as mentioned above 100 silver coins were also found along with broken plastic box for which PW-28 said that they do not belong to him. This polythene bag is Ex.PW28/3.
342. With regard to black colour leather box containing Samsung Digital 8mm Camcorder VP-E808 along with its charger and flash light and two small video cassettes of Sony MP found therein did not belong to him but it was left by accused C.S.Khairwal accidentally along with documents at his residence for keeping the same in safe custody. This witness was found resiling from his statement, therefore, has been declared hostile and was cross examined by Ld. Special PP for CBI.
343. During his cross-examination PW-28 stated that he is friend of C.S.Khairwal (A-1) and having visiting terms with him. PW-28 had stated that plot No. A-209 was purchased in his name in the year 1968 - 1969, plot No. A-212 purchased by him in name of his son in 1984-1985, and plot no. A-213 was purchased by PW-28 in the name of his wife in 1987. PW-28 stated that house of Khushi Ram is about 500 meter away from his house. He has stated that there has been no robbery or dacoity or theft taken place neither at his residence nor at his neighbour's house. PW-28 has stated that when he kept his valuables at the house of Khushi Ram in a briefcase he did not inform him what was there in that briefcase.
344. PW-28 has stated that he had kept the bag at Khushi Ram's CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 173 of 309house at 15th/16th February, 1996. He alone had gone to Kela Devi on 21.02.1996 and came back on 24.02.1996. He was hospitalized thereafter and remained there till 28.02.1996. After discharge from the hospital he again went to Nangli Saheb at Haridwar and came back on 03.03.1996. PW-28 has not furnished any explanation as to why he had not kept his bag with his family members who stayed at home and had not accompanied him to Kela Devi. PW-28 has denied the suggestion regarding amount of Rs. 6 Lakhs being recovered from the house of Khushi Ram belonging to C. S. Khairwal (A-1) and in response to the suggestion given PW-28 stated that he has kept the same at his house, belonged to C. S. Khairwal (A-1).
345. With regard to the claim of Rs 6 Lakhs belonging to him, PW-
28, has not furnished his bank statement for the relevant period despite raising specific query by prosecution nor he has filed any document in this regard. Balance sheet being part of Ex.PW28/P-1 (colly) does not contain any entry regarding sale or purchase made by the firm of PW-28. PW-28 also did not bring his passbook of current account of his firm M/s Nagar Enterprises.
346. PW-28 has stated that C. S. Khairwal (A-1) do not know Om Prakash. He has stated that C. S. Khairwal (A-1) visited his house on 10th/11th February, 1996 to attend a religious function and at that time he forgot one polythene bag at his residence. PW-28 has stated that C. S. Khairwal (A-1) was having one house F-85, East of Kailash where PW-28 used to visit occasionally. He has further stated that C. S. Khairwal (A-1) was also having farm house in the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 174 of 309name of his son Sunil Khairwal (A-2) in village Jasola.
347. During his cross-examination, on behalf of accused persons, PW-28 had stated that he had filed an application before the court to claim amount of Rs. 6,70,000/- and jewelery which was seized by CBI. With regard to bank statement and passbook qua his claim of Rs. 6 Lakh, PW-28 has stated that concerned passbook has been destroyed by termites. With regard to Rs 70,000/- PW-28 has stated that it was the saving of his wife. With regard to jewelery PW-28 has stated that they were his ancestral property as well as stridhan of his wife and daughter-in-law.
348. PW-28 has stated that Birbal Khairwal, father of A-1 was having certain shops, agricultural lands, sheeps and goats at his village. He shifted to Delhi. PW-28 used to meet him at his fruit and vegetable shop at Sarojini Nagar. PW-28 has also met Birbal Khairwal at F-85, East of Kailash which was his residential house. PW-28 has stated that whenever he used to visit F-85, East of Kailash he had seen Birbal Khairwal, his wife, servants and his son Panna Lal there. PW-28 has stated that accused Sunil Khairwal is having his farmhouse at Asola and not at village Jasola. PW-28 has further stated during his cross examination that Birbal Khairwal had told him that House No. F-85, East of Kailash was owned by him.
349. Next witness examined by prosecution is PW-34 Sukumar Mani who was the Assistant Manager of Citi Bank and had furnished detail pertaining to purchase and payment made by credit CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 175 of 309card holder C.S.Khairwal (A-1) during period July, 1995 to March, 1996. Certified copy of statement of credit card is Ex.PW34/2. No material contradiction has emerged during his cross-examination and witness has corroborated whatever he has stated in his examination-in- chief.
350. Next witness examined by prosecution is PW-141 Azad Singh, who was inspector ACB, CBI in the year 1996 and participated in the investigation of the present case. He conducted search on authorization issued by IO, at premises 34 Gautam Apartment SFS DDA Flat in the presence of independent witnesses namely Ishwar Singh, M. C. Arya and other CBI officials. This witness has stated similar facts. As stated by PW-140.
351. Besides that it is further stated that he also conducted search at 10/61 Modern Basti Industrial Area New Delhi which was office of Rakesh Goel CA and during search ITRs of Sunil Khairwal (A-
2) were seized vide search cum seizure memo Ex.PW114/1 (D-30). PW-141 also conducted search at premise no. A-209, 212 and 213, Budh Nagar Inderpuri, Delhi occupied by one Sh.Kalyan Singh Nagar. Vide search memo Ex.PW134/1. During his cross- examination, it is stated that PC Sharma, the member of search team had left the spot in search of Abha Tyagi. He brought Abha Tyagi at the spot at about 05:00 PM in the evening of 18.02.1996.
352. Next witness examined by prosecution is PW-114 R. D. Gupta, who was working as Junior Telecom Officer in the office of SDO, Shadipur Telephone Exchange in the year 1996. He along with his CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 176 of 309colleague Pradeep Kumar was part of search team CBI conducted at office at Model Basti, Karol Bagh. Certain documents were seized vide memo dated 23.02.1996 Ex.PW114/1 (D-30). During search, ITR for the year 1992-93, 1993-94 and 1994-95 were seized.
353. With regard to item No. 7 (or 5) mentioned at page No. 26 of the charge-sheet, it is stated that value assigned to this item is Rs.90,000/- which is stated as cash recovered from 79/11, Kishan Garg. This house is said to be belonging to K.L. Nagar (PW-28) and this amount has been claimed by PW-28 as belonging to him. In this regard, there is no witness examined by the prosecution except testimony of IO PW-143. One order of CIT and ITAT has been filed on record by accused persons and it has been considered during trial on several occasion. D-40 is a relevant document which is containing the assessment order pertaining to the present proceedings.
354. C. S. Khairwal (A-1) has examined one witness D1W14 Ms. Shampa Dass who brought on record the document mentioning the intimation given by C. S. Khairwal (A-1) to his department regarding jewellery inherited by him from his mother as given on 29.12.1987. The order of CIT and ITAT as well as assessment order of income tax tribunal is perused. Ex.D-40 is an admitted document and it has not been controverted during trial.
ARGUMENTS ON BEHALF OF ACCUSED PERSONS.
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Page No. 177 of 309355. With regard to movable assets mentioned at page No. 26 of the charge-sheet, arguments, like immovable properties have been done item wise one by one. It is stated that C. S. Khairwal (A-1), Sunil Khairwal (A-2) and K. C. Sharma (since deceased) (A-3) had movable assets to the tune of Rs.90,86,767/-.
356. With regard to item No.1, it is stated that the valuation of this jewellery found at locker at High Court, UCO Bank which was in the name of Anu Khairwal, wife of accused No. 1 is assessed at Rs.1,74,900/-. Its valuation has been done at the current prevailing market rate. There is no valuation of the property according to its year of purchase. The valuation basis of diamond of four C's (cut, carat, colour and clarity) has not been properly used to measure the value. PW-100 Rajesh Verma has been examined, who is the valuer of these properties. It is stated that the basis of valuation done by Rajesh Verma, PW-100 is faulty as he has assessed the valuation as per the facts stated by the CBI only. Standard of unit in weight has not been clearly mentioned, age of jewelery is not mentioned. The rate of gold at that time and at the relevant time i.e. the time of its purchase has not been mentioned. Moreso, Anu Khairwal, in whose name the locker stands, has not been inquired about the date of acquisition of this asset. PW-143 has been cross examined in this regard, however, he has stated nothing with regard to date of acquisition of the property in question.
357. In this regard, it is argued by Ld. Counsel for accused that there an assessment order of income tax department in this regard. This has been admitted by the accused persons. It is with regard to CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 178 of 309the movable property recovered during raid conducted at flat No. 34 SFS Gautam Apartment, New Delhi. There is an assessment order with regard to these properties. C.S.Khairwal (A-1) had given intimation in this regard to his department that this jewelry was inherited by him from his mother. It is argued that relevant document in this regard is D1W14/A which reflects the date of intimation as 29.12.1987. Thus, in the absence of any evidence from the side of prosecution connecting the purchase of this property either by C. S. Khairwal (A-1)or from the funds of C. S. Khairwal (A-1), it cannot be linked with and assigned to C. S. Khairwal (A-1) .
358. With regard to item No. 2 which is again a jewelry found at the house of C. S. Khairwal (A-1) i.e. D-1/78 Rajinder Nagar. In this regard, PW-142 has been examined and relevant file is D-18. It is stated that during raid no weighing measure was carried by the IO. The weight of this property is not correctly mentioned and how it has been assessed, that to on the basis of mere seeing the property and who has arrived at the weight of the property has not been explained. It is further argued that the name of purchaser or any inquiry regarding purchase has not been done.
359. PW-112 Dharmender Kumar who was member of such team has not stated any thing about any basis of valuation or assessment. He had said nothing about his participation in the process of valuation of the jewelery. PW-142 has relied upon D-17, however, D-17 is a document in which there are many thing which are related to the period prior to the check period. All these things are CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 179 of 309stated to have been returned to C. S. Khairwal (A-1) , as per record. It is further stated that all these documents containing the details which are so elaborate and vast cannot be prepared in a very short time that too when C. S. Khairwal (A-1) was in custody. It is argued that there is only possibility that all the list have been prepared in advance. It is further stated that in the entire document regarding raid conducted by the CBI team, there is no mention of any valuer present at the spot. Thus, the valuation done by prosecution is faulty.
360. Item No. 3 and 4, all these items are claimed by K. L. Nagar stating that they are his property. It is further argued that K. L. Nagar has filed his ITRs to show his bona fide. It is stated that prosecution has examined a number of witnesses in this regard, i.e., PW-5, PW-27, PW-28, PW-39. Recovery of Rs. 6.70 Lakhs is claimed from the house of K. L. Nagar who has been examined PW-28. It is stated by him that when the case property was called in court for examination, the concerned potli was found unsealed and certain items found in the said potli/bundle are claimed by K. L. Nagar as belonging to him. It is further argued that PW-143 has not given any explanation as to when none of the accused or family member of accused has named PW28 K.L Nagar, then how his name has been reflected during investigation. It is further stated that IO has not verified the financial status of K. L. Nagar. It is argued that the valuation of all such movable properties so recovered, should be done in the presence of the owner, however, the valuation has not been done in the presence of any of the owner or the person claiming the ownership thereof.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 180 of 309361. With regard to item no. 7 or 5 as mentioned at page No. 26, a lot has been mentioned in the order of concerned CIT and ITAT that these properties including cash of Rs. 90,000/- belongs to K. L. Nagar, this fact has not been disputed by the IO PW-143. It is further argued that keys of locker no. 217, if were seized then why they were not brought before this court.
362. During arguments it is stated that C.S.Khairwal (A-1) was found having 5 FDRs to the tune of Rs.2,13,895/-. Besides this he was having Rs.69,846/- as bank balance as on 18.02.1996. Thus, allegations against C. S. Khairwal (A-1) are that he was having total balance to the extent of Rs.2,83,741/-. All these items are not disputed by the accused.
OBSERVATION AND ANALYSIS.
363. With regard to item No. 1, mentioned at page No. 26, the locker is stated to have been in the name of Anu Khairwal, W/o C. S. Khairwal (A-1). As per allegation, initially it was stated to be in the name of Sunil Khairwal (A-2) which has not been found as correct as per record.
364. Anu Khairwal is the wife of C. S. Khairwal (A-1). It is further argued on behalf of accused persons that all the jewelries which are alleged to be found at the locker of High Court, UCO bank are her stridhan. From the report of valuer, no observation with regard to age of the property is made. It cannot be ascertained as to when CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 181 of 309the property is stated to have been purchased. It is argued by accused persons that all these properties IE. jeweleries found at locker are very old jeweleries. Now the report of the valuer PW- 100 is perused. There is no mention of date of acquisition of date of jewelery. It is also reflected from the report that the assessment of its valuation has been done at current market rate and standard of unit in weight is not mentioned clearly.
365. It is needless to say that weight of gold is to be measured in tola/grams and weight of jewelery is to be measured in carat. The report of PW-100 Rajesh Verma does not specify these aspect. It is further reflected from the defence evidence led by A-1 that D1W14 had brought record pertaining to intimation given by C. S. Khairwal (A-1) relating to jewelery inherited by him from his mother and such intimation is dated 29.12.1987.
366. By placing on record this document of intimation pertaining to jewelery, I am of the opinion that C. S. Khairwal (A-1) has raised a doubt in the story of prosecution by preponderance of probabilities. Now, the onus is upon prosecution to prove it beyond reasonable doubt that these jewellery were not belonging to his mother and not given to Anu Khairwal being her stridhan. PW-143 has not given any explanation in this regard nor any document controverting the document Ex.D1W14/A has been brought on record by prosecution.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 182 of 309367. Similar, are the observation with regard to item no. 2 i.e. certain jeweleries are to be found at the house of C. S. Khairwal (A-1) at D-1/78, Ravinder Nagar. There is not indication regarding age of jewelries.
368. With regard to item No. 3 and 4, it is reflected during arguments that PW-28 K.L Nagar, during his examination has claimed these properties belonging to him. He is stated to have filed one affidavit in this regard before the Ld. District Judge, prior to the fling of the charge-sheet claiming these properties belonging to him. This again in my considered opinion has created a doubt in the story of prosecution, thus the entire onus is shifted upon the prosecution to prove this fact. PW-143 IO of the case has not conducted any investigation regarding financial status of PW-28 and thus showing that PW-28 Kalyan Singh Nagar was not having sufficient means to have owned or possessed these property to this extent. Moreso, the case property, when was called in the court, during examination of witness, it was found unsealed. No explanation has been furnished by the prosecution during trial or final arguments in this regard. Thus, the allegation of accused persons that case property has been tampered with or planted with the accused persons cannot be ruled out. Hence, it cannot be said to establish this fact being free from doubt on this account itself.
369. The assessment order of income tax, order of CIT and ITAT and Ex.D1W7/A which is an order vide which order to CIT has been challenged are perused thoroughly. It has been observed in the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 183 of 309order that Rs.6.70 Lakhs belongs to K. L. Nagar. It means and implies that the claim made by K.L.Nagar has been upheld before ITO. Similar are the observations with regard to item No. 7 or 5 i.e., Rs.90,000/-. In these circumstances, therefore, in my considered opinion, the evidence led by prosecution is not sufficient to establish the fact that all these movable properties/items mentioned at page No. 26 of the charge-sheet are either owned by C. S. Khairwal (A-1) or he was holding all these properties as benami in the name of his wife or K.L.Nagar or any other person. The onus in this regard cannot be said to be shifted on accused persons, therefore, it cannot be considered that prosecution has been able to discharge the burden in their favour.
EXPENSES MENTIONED AT PAGE NO. 13370. As per allegation in the charge-sheet certain expenses are mentioned at page No. 13 and 14 of the charge-sheet. It is alleged that all these expenses have been made by and on behalf of C. S. Khairwal (A-1). It is alleged that C. S. Khairwal (A-1) had incurred all these expenses not only in procuring immovable assets as benami in the name of various persons but has incurred all such expenses through the person mentioned at page No. 13 and 14 of charge-sheet from item no. 1 to 35. Some of the expenses which are directly related to C.S.Khairwal (A-1) like payment of telephone bill, obtaining membership of club, expenses incurred on marriage of daughter Sunita, have not been disputed by him. Other expenses and the manner in which they have been linked with C. S. CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 184 of 309Khairwal (A-1) have been disputed by him.
371. In this regard, prosecution has examined, PW-95 Sanjeev Bhatnagar, who was posted as Jewellery Appraiser, Foreign Post Office, Customs, whose job was to assess purity and valuation of jewellery and other billion articles. This witness has been examined by prosecution pertaining to item No. 31, mentioned at page no.14 of charge-sheet as certain jeweleries were recovered from the locker maintained by Sunita Khairwal, daughter of C. S. Khairwal (A-1). This locker is stated to be in the name of Sunita Khairwal. Relevant document is D-41. CBI sought his report on certain jewellery articles shown to this witness which were examined by him as lying in locker at Punjab National Bank, Khan Market. His report dated 05.02.1997 is exhibited as Ex. PW 95/2 (D-41).
372. It is stated by PW-95 during his cross-examination that age of jewellery cannot be ascertained by any expert and valuation has been done on the basis of minimum prevailing value of old jewellery at the time of preparation of valuation report.
373. Next witness examined by prosecution is PW-83 Hoti Lal who is stated to be resident of village and post office Kyrada Kalan, Tehshil Hindon, District Karoli, Rajasthan and stated to be a witness to the sale of agricultural land by Sh. Kirori. PW-83 is known to Sh. Kirori, son of Sh. Goli. It is stated that sale deed CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 185 of 309dated 10.02.1993 was executed in between Kirori and Sunil Khairwal (A-2) which is Ex.PW83/1 and sale deed dated 15.02.1993 was executed in between Kirori and Smt. Anu Devi which is Ex.PW83/2 (D-226). This witness has expressed his ignorance about payment of sale consideration and expressed his ignorance as to whether it was paid by C. S. Khairwal (A-1). This witness is examined by prosecution is pertaining to item No. 2 page No. 13 of charge-sheet alleging that these are the expenses for registration of sale deed of the immovable property mentioned at Sr. No. 4 and 5 of page No. 15 of the charge-sheet. Both these properties mentioned at Sr. No. 4 and 5 of page No. 15 of the charge-sheet are linked with C. S. Khairwal (A-1). Hence, as per the story of prosecution the expenses incurred in registration of their sale deed is also sought to be linked and associated with C. S. Khairwal (A-1). PW-83 however, has not thrown any light with regard to payment of these expenses as alleged, by C. S. Khairwal (A-1) or any other person.
374. Next witness examined by prosecution is PW-34 Sukumar Mani who was Assistant Manager of Citi Bank and who has been examined pertaining item No. 21 mentioned at page no. 14 of the charge-sheet. This witness furnished details pertaining to purchase and payment made by credit card holder C. S. Khairwal (A-1) during period July, 1995 to March, 1996. Certified copy of statement of credit card is Ex.PW34/2 (D-97). No material contradiction has emerged during his cross-examination and witness has corroborated whatever he has stated in his examination-in -chief.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 186 of 309375. It is however, reflected from the testimony of PW-34 that he brought the memorandum of all the alleged purchase and payment made, however, he did not bring any record pertaining to payment made as reflected from the concerned account relating to credit card. C. S. Khairwal (A-1) has not disputed that this card was in his name. It has been stated by A-1, however, that PW-34 is stated to have prepared only the memorandum of certain record pertaining to credit card but the concerning record containing the details thereof has not been brought on record either by him or by the IO PW-143.
376. Next witness examined by prosecution is PW-41 Yogesh Sharma, who was accountant in South Delhi Club, Greater Kailash
- I. In the year, 1996 and used to maintain ledger account of members of club. This witness has been examined with regard to allegation of Rs.8,690/- as mentioned at Sr. No. 9 of page no. 13 of charge-sheet. PW-41 has stated that C.S.Khairwal (A-1) was member of their club. Ex.PW41/1 is a counter foil of receipts regarding payment made by C. S. Khairwal (A-1).
377. From the testimony of PW-41, it is reflected that the concerned counter foil is under the signature of some Rajesh Grover, who has not been examined by the prosecution. IO PW-143 has not stated anything with regard to non examination of Rajesh Grover. It is however, not disputed that C. S. Khairwal (A-1) was not the member of this club.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 187 of 309ARGUMENTS ON BEHALF OF ACCUSED PERSONS.
378. With regard to the expenses shown at page Nos. 13 and 14 of the charge-sheet, which have been alleged to be attributed to C. S. Khairwal (A-1) , it is alleged that there are 35 items shown under the head of expenses attributed to C. S. Khairwal (A-1).
379. In this regard, it is stated that item Nos. 20, 27 and 31 are shown as expenses on the marriage of daughter. These documents are not denied but disputed and are admitted documents. It is alleged that intimation in this regard has been given as C. S. Khairwal (A-1) had withdrawn Rs.1.44 Lakhs for the marriage and there had been grant of Rs.1,44,000/- in favour of C. S. Khairwal (A-1) as well. It is stated that this aspect of withdrawal of Rs.1,44,000/- has not been considered by the IO and no benefit has been given to C. S. Khairwal (A-1). It is alleged that IO has taken only net salary and not gross salary in this regard. It is further alleged that unverified expenses have no basis, hence, cannot be attributed to C. S. Khairwal (A-1) .
380. It is further argued that item No. 1, 5, 6, 7, 25 and 34 are related to A-2 only. There is no evidence lead by prosecution on the aspect of funding or procurement of any such sum of money, by C.S. Khairwal (A-1) for Sunil Khairwal (A-2). All such items CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 188 of 309are stated to have been incurred by Sunil Khairwal (A-2) as being reflected from his ITRs. It is therefore, argued that none of such items/expenses, in the absence of any evidence to the contrary, that C. S. Khairwal (A-1) has funded or financed them, can be said to be incurred by C. S. Khairwal (A-1).
381. With regard to expenses shown at item No. 2 at page No. 13 of the charge-sheet, the expenses are shown to have been incurred for the registration of sale deed. It is stated that the sale deed is in the name of Anu Khairwal. The relevant witness in this regard is PW-83. It is reflected that the sum of Rs.16,500/- has been incurred and the sale deed is part of D-226. It is argued that this expense cannot be assigned to C. S. Khairwal (A-1).
382. With regard to expense at serial No. 3, it is stated, as argued similarly with regard to item at Sr. No. 2, that it is also pertaining to Shiboo Ram, brother of Birbal Khairwal. The property is in the name of Shiboo Ram, brother of Birbal Khairwal. Thus, this expense cannot be linked to C. S. Khairwal (A-1) .
383. Similar are the arguments with regard to the expense mentioned at item No. 4 at page No. 13 of the charge-sheet, as sale deed in the name of Hukum Singh, brother of Birbal Khairwal.
384. With regard to the item mentioned at Sr. No. 8, it is stated that there is no witness related to this document as IO has not conducted any investigation in this regard. IO cannot be said to have personal knowledge in this regard. It is argued that no witness CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 189 of 309from bank has been examined that it has been paid by C.S.Khairwal (A-1) . It is further stated that the relevant account with regard to item No. 8 at page No. 13 of the charge-sheet was closed on 23.06.1992. It is further stated that from the document it is reflected that loan was taken against FDRs. There is no investigation with regard to FDR. With regard to item mentioned at Sr. No. 9 prosecution has examined PW-41 Yogesh Sharma. It is argued that this witness only examined signature of one Rajesh Grover and has not stated that who has made the payment. It is stated that IO has not alleged anything in this regard that the payment was made by C. S. Khairwal (A-1). Similarly, with regard to item No. 10 at page No. 13 of the charge-sheet it is stated that there is no evidence on record and the only testimony, as per record is that of IO PW-143.
385. With regard to item No. 11 at page No. 13, it is stated that there is no direct evidence in this regard that C. S. Khairwal (A-1) is the promoter or director or share holder of Birbal Gifts Pvt. Ltd. It is alleged that Sunil Khairwal (A-2) was one of the director. Birbal Gifts Pvt. Ltd. was incorporated in July, 1991. It is argued that at that time Sunil Khairwal (A-2) was major i.e. 22 years of age. With regard to item No. 12, it is argued that this expenses is linked with C. S. Khairwal (A-1) alleging that after the death of Birbal Khairwal it has been paid by C. S. Khairwal (A-1). It is argued that Birbal Khairwal had taken a loan of Rs.1.60 lakhs, however, the benefit of loan as income has not been given but only expenses have been taken. It is further alleged that IO has not placed on record any document that this amount has been paid by CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 190 of 309C.S.Khairwal (A-1).
386. Thus, it cannot be linked with C.S.Khairwal (A-1). With regard to Sr. No. 13 and 15 it is stated that this document does not contain the details of the payment but the gist prepared by some person which is part of D-68. These expenses are nothing but alleged to have been prepared by some person on the basis of some record. Neither the record has been brought in the court nor anything beyond this document is established. This document is nothing but summary of certain items, which are mere allegation, hence, these expenses cannot be linked to C. S. Khairwal (A-1) .
387. With regard to Sr. No. 16, 17, 18 and 19, it is alleged that they have not been pressed by prosecution as there was no evidence on record and they have not been proved, thus they cannot be read against C. S. Khairwal (A-1).
388. With regard to item No. 22 and 23, it is stated that these are the expenses incurred by Sunita Khairwal which have been reflected in her ITRs. It is argued that the relevant document in this regard is D-277 exhibited as Ex.PW143/D-2. It is alleged that this document has not been considered by the IO. It is further alleged that there is no documentary evidence to prove this expense and only the testimony of IO is on record.
389. With regard to item at Sr. No. 21, it is argued that this credit card is in the name of C. S. Khairwal (A-1). These expenses, CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 191 of 309however, pertains to the period July, 1995 to March, 1996 which is beyond the check period, which is upto February 1996. It is argued that relevant witness examined by prosecution is PW-34 Sukumar Mani. It is further argued that PW-34 did not bring any record pertaining to payment being made and how it was made. It is further argued that these expenses are covered under permissible limit of 33 % expenses. It is argued that when 33% of carry home salary is permissible as per the circular and norms then why this is mentioned at page no. 14 of charge-sheet as additional sum of expenses. Item No. 28 and 29 should be part of permissible limit of 33 % of carry home salary.
390. With regard to item No. 32, it is argued that this property situated at Chattarpur has not been forming part of immovable properties mentioned at page Nos. 15, 16, 17, 18 and 19 of charge- sheet. Therefore, any such expenses cannot be linked with C. S. Khairwal (A-1) in isolation.
391. With regard to item No. 33 at page No. 14 of charge-sheet, it is argued that no witness has been examined by the prosecution and only testimony available on record is that of IO. It is further stated that this item should be part of 33 % of carry home salary.
392. Similar is the argument with regard to the expenses on foreign travel of Manju Khairwal mentioned at page No. 14 of the charge- sheet alleging that there is no evidence on record and only IO has alleged in his testimony. Thus, except 33 % of carry home salary.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 192 of 309These expenses cannot be attributed to C. S. Khairwal (A-1) separately as supporting evidence to prove them has not been brought on record by the prosecution.
OBSERVATION AND ANALYSIS
393. It is reflected from the evidence led by prosecution in order to establish these expenses as mentioned at page No. 13 and 14 of the charge-sheet, most of the items are sought to be established by the testimony of IO PW-143 and his testimony is not supported with relevant documentary evidence. In this regard, item Nos. 35, 33, 32, 21, 20, 27, 31, 13, 12, 11, 10, 9, 8, 4, 2, 1, 5, 6, 7, 25, 34 etc., are such instances where allegation have been made in the charge- sheet and only IO, by his oral testimony has sought to prove these items as expenses incurred by the persons mentioned therein and has sought to link them with C. S. Khairwal (A-1). These items further contain allegation of certain expenses made by C. S. Khairwal (A-1) by his credit card.
394. It is reflected from the arguments that this credit card is stated to have been cancelled. This fact of cancellation of credit card needs to be verified by the IO, however, nothing is stated on behalf of prosecution in this regard. Moreso, with regard to credit card expenses mentioned at Sr. No. 21, they are shown to have been incurred on clothes. This fact is not denied by the prosecution that a benefit of 33 % of carry home salary should be given to the accused. This has been mentioned at Sr. No.30 at page No. 14 of CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 193 of 309the charge-sheet. These sundry expenses to be covered under 33 % of carry home salary are mentioned in a circular exhibited as Ex.PW143/DA wherein it has been specifically mentioned at point No. 2 of the circular dated 28.11.2001.
395. This include unverifiable expenses such as on kitchen, house-
hold, clothing etc., should be taken as 1/3rd of gross salary as a last resort after attempting to quantify the expenses broadly under each of these heads by verification.
396. No explanation has been furnished by prosecution as to why separate items which are pertaining to expenses on clothing etc., are mentioned just like item no. 21, when 1/3rd of carry home salary is specifically mentioned at Sr. No. 30 at page no. 14 of the charge-sheet. There is no documentary evidence brought on record by the prosecution pertaining to items mentioned at Sr. No. 1, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 25, 27, 28, 29, 30, 31,32, 34 and 35.
397. In these circumstances, the only item for expenses to be considered, which can be attributed and linked with C. S. Khairwal (A-1) is 1/3rd expense of carry home salary and expenses incurred on marriage of his daughter, expenses for obtaining membership of club, telephone bills paid, which is stated to be installed at his premises. Certain items in the list of expenses mentioned at page No 13 and 14 of the charge-sheet are stated to be made by or for Sunil Khairwal (A-2), Anu Khairwal, Shiboo Ram, Hukam Singh, CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 194 of 309K. C. Sharma, Sunita Khairwal and Manju Khairwal.
398. In my considered opinion, as already stated above, prosecution should bring on record the evidence which should connect the payment is made by C. S. Khairwal (A-1) either by himself or through the person alleged. In the absence of any evidence to the contrary, it cannot be presumed to be made by C. S. Khairwal (A-1). Moreso, some of the items are shown to have been incurred on registration of sale deed. These items, are related with immovable properties which have been dealt with already while dealing with the immovable properties mentioned at page No. 15, 16 , 17, 18 and 19 of the charge-sheet. Final opinion with regard to 'benami' shall be given in the concluding paras.
MOVABLE ASSETS MENTIONED AT PAGE NO. 26 AND 29.
399. With regard to movable assets mentioned at page No. 26, it is stated by accused persons that they do not dispute the fact revealed from the search/raid so conducted like locker in the name of Anu Khairwal and jewellery and cash claimed by K. L. Nagar. With regard to items mentioned at page No. 27 and 28, it is stated again by C. S. Khairwal (A-1) that he is not aware as to what has been manipulated by CBI against him. So far as, relevant account is concerned, it is not disputed by accused persons. It is further stated that none of these items as alleged in the charge-sheet, have been proved by prosecution against C. S. Khairwal (A-1). It is stated that with regard to these items the relevant documents are D-149 CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 195 of 309and D-155 and PW-40 S. K. Bhardwaj has deposed regarding account No. 102197 at Allahabad Bank.
400. Similar are the submissions made on behalf of accused persons with regard to items mentioned at page No. 29 and 30. With regard to items mentioned at page No. 30 which are pertaining to certain accounts at Syndicate Bank, Oriental Bank of Commerce, Bank of Baroda, prosecution has examined PW-77 Mahesh Kumar Saraf.
401. PW-77 Mahesh Kumar Saraf was clerk in Syndicate Bank, Khan Market, New Delhi in 1996. This witness authenticated the statement of account of Anu Khairwal which are Ex. PW 77/1 (D-
102) and Ex. PW 77/2 (D-102). Relevant document in this regard is D-102, which is a hand written note the other relevant document D-136 and D-223.
402. Next witness examined by prosecution is PW-24 Dinesh Kumar Bhaskar, who was the Senior Manager from Oriental Bank of Commerce. He was posted at Safdarjung Branch from 1993 to 1998. This witness, after perusing account opening forms of account No 7004, account No 7005,account No 7006, account No 7007 and account No 7008 stated that he do not remember who had opened these account or who had opened FDRs with regard to above mentioned accounts. This witness was found resiling from his statement, therefore, he has been declared hostile. It is reflected that his witness has not supported the story of prosecution at all as to whether there was any account in the name of C. S. CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 196 of 309Khairwal (A-1) in the said branch.
403. PW-24, however, during his cross examination by CBI recalled and admitted the fact that SB account No. 7004 to 7008 were opened on 23.12.1995 by Sunil Khairwal A-2 with initial deposit of Rs.1,000/- each, however, the balance of these 5 accounts on the day of recording of his evidence was Rs.7,50,000/-.
404. Account opening forms of these accounts are exhibited as Ex.PW24/1 to Ex.PW24/5 and ledger sheets of account No. 7004 to 7008 are exhibited Ex.PW24/6 to Ex.PW24/10, respectively. PW-24, during his cross examination, has admitted the fact that C.S.Khairwal (A-1) was the customer of their branch. PW-24 has acknowledged the fact that SB account No. 6363 is in the name of Kampoori Devi, account No. 4444 is in the name of Panna Lal, account No. 4361 is in the name of Panna Lal, account No. 4315 is in the name of Anu, account No. 1831 is in the name of MMG Agro Product. This witness did not support story of prosecution with regard to details pertaining to account Nos. 7004 to 7008 and account No. 3798 in the name of Sunil Khairwal (A-2).
405. Next witness examined by prosecution is PW-33 B. S. Sethi, who was Senior Manager, Oriental Bank of Commerce. He was posted as Manager at Safdurjung Enclave Branch of Oriental Commerce from 1994 to 1998 and thereafter from 2002 to 2007. P. K. Gupta was Senior Manager in 1996. PW-33 identified the signature of P.K. Gupta, Senior Manager on seizure memo exhibited as Ex.PW33/1 (D-194) dated 17.09.1996 vide which CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 197 of 309details of account opening form pertaining to SB Account No.7000 in the name of Gulshan Kirad exhibited as Ex.PW33/2 containing specimen signature card Ex.PW33/3 (D-195) along with computerized print out of the account Mark PW33/PX.
406. He also furnished the details pertaining to account opening form of Current Account No.1050 in the name of M/s Birbal Gifts Pvt. Ltd. exhibited as Ex.PW33/4 (D-134) which bears the signature of Sunil Khairwal (A-2) and K.C.Sharma (A-3) (since deceased) both Directors of M/s Birbal Gifts Pvt. Ltd. as well as the details of the Ledger Sheet exhibited as Ex.PW33/5. He also furnished the details pertaining to account opening form of Current Account No.1831 in the name of M/s M.M.G Agro Product exhibited as Ex.PW24/20 (D-135) which bears the signature of Sunil Khairwal (A-2) at point B. Copy of statement of account is exhibited as Ex.PW24/19.
407. He also furnished the details pertaining to account opening form pertaining to SB Account No.4315 in the name of Anu Khairwal exhibited as Ex.PW24/18 bearing signature of account holder at point B and bears the signature of Sunil Khairwal (A-2) at point C as introducer. He also furnished the details pertaining to account opening form pertaining to SB Account No.3850 in the name of Tulsa Devi exhibited as Ex.PW33/6 (D-137) which bears the signature of Sunil Khairwal (A-2) as introducer. He also furnished the details pertaining to account opening form pertaining to SB Account No.6363 in the name of Kampoori Devi exhibited as Ex.PW24/12 (D-140).
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 198 of 309408. He also furnished the details pertaining to account opening form pertaining to Account No.7004, exhibited as Ex.PW24/1, account No. 7005 marked as Mark PW21/PX-4, account No. 7006 marked as Mark PW21/PX-6, account No. 7007 marked as Mark PW21/PX-8, account No. 7008 marked as Mark PW21/PX-10. These account opening forms were handed over by Sunil Khairwal (A-2) and they were incomplete. PW-33 stated that he had not seen the party or introducer. PW-33 handed over these forms to D.K.Bhaskar, the then Chief Manager and intimated this fact to him. He also mentioned the word 'AOF required' on the top of ledger sheet.
409. During his cross-examination, PW-33 has stated that prior to 1995- 1996, all the records were to be maintained manually. PW- 33 has stated that he had not allotted account Nos. 7004 to 7008. PW-33 corroborated the fact that Sunil Khairwal (A-2) had handed over the account opening form Nos. 7004 to 7008 pertaining to account holder which were incomplete.
410. Another witness examined by prosecution in this regard is PW-123 Ram Swaroop who has stated a lot about various facts and his testimony is also relevant pertaining to the fact relating to these accounts.
411. PW-123 Ram Swaroop was doing transport business and driving Tata 407 in the year 1995. He knew C.S. Khairwal (A-1) and Sunil Khairwal (A-2) being his relative. During investigation, CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 199 of 309CBI had taken his specimen signature, writing S-1 to S-4 exhibited as Ex.PW37/4 (D-315) which were identified by him. During his cross-examination, the relevant portion pertaining to the facts mentioned above, it is stated by him that he, his wife and his daughter opened bank accounts in Oriental Bank of Commerce in the year 1995. He deposited Rs. 2,50,000/- in his account. His wife deposited Rs. 1,50,000/- in her account and Rs. 1,00,000/- was deposited in the account of his daughter. It is stated by PW-123 that he deposited the amount in above mentioned accounts by himself. These accounts were later on seized relating to present case for which he had filed objections against attachment before Ld. District Judge, certified copy of which are exhibited as Ex.PW123/D-1.
ARGUMENTS ON BEHALF OF ACCUSED.
412. With regard to bank account mentioned at page No. 29 of charge sheet, it is alleged in the charge-sheet that some of the bank accounts are alleged to be belonging to Sunil Khairwal (A-2), however, money has been funded by C. S. Khairwal (A-1). It is argued that at the time of opening of account in the name of Sunil Khairwal (A-2), he was 26 years of age and was having sufficient income. It is further argued that he was income tax assesse at that time. As per allegations of CBI, Sunil Khairwal (A-2) has filled up some of the account opening forms.
413. It is argued that PW-24 and PW-33 have been examined by the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 200 of 309prosecution in this regard, however, they have not stated anything with regard to funding of money in the said account either by C. S. Khairwal (A-1) or by Sunil Khairwal (A-2). Thus, in the absence of any evidence to the contrary, none of the accounts, which are either in the name of Sunil Khairwal (A-2) or other persons who are relative of C.S.Khairwal (A-1), can be said to be having their deposits belonging to Sunil Khairwal (A-2) or C. S. Khairwal (A-
1). It is argued that the balance amount mentioned against these account numbers, mentioned at page nos. 29 and 30 of the charge- sheet cannot be linked with C.S.Khairwal (A-1) being his benami property as there is no evidence vide which such amount can be said to be financed by and belonging to C. S. Khairwal (A-1) either by himself or through Sunil Khairwal (A-2).
OBSERVATION AND ANALYSIS
414. As per the story of prosecution, the allegation against Sunil Khairwal (A-2) are that he had opened SB account at Oriental Bank of Commerce, Allahabad in the name of various persons and not only the amount deposited for opening of these accounts was funded by C. S. Khairwal (A-1) through Sunil Khairwal (A-2) but the subsequent deposition of amount in such accounts was made by C. S. Khairwal (A-1) through all such account holders. It is however, reflected that none of the witnesses examined by prosecution, as mentioned above, have stated anything that C. S. Khairwal (A-1) was present at the time of opening of the account or had deposited any of such amount in the name of such account holders at any point of time either by himself or through Sunil CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 201 of 309Khairwal (A-2) or through any other person.
415. The onus of proving this fact, as per law is upon the prosecution to establish from the record that none of such account holders were having sufficient financial potency or status nor they had not deposited such amount by themselves or such amount so deposited was not belonging to them but belonging to C. S. Khairwal (A-1).
416. Specimen handwriting of PW-123, i.e., S-1 to S-4 Ex.PW37/4 of Ram Swaroop and specimen handwriting of Sunil Khairwal (A-
2) S-10 to S-19 exhibited as Ex.PW37/7 have been taken during investigation. With regard to handwriting of Sunil Khairwal (A-2) on some of the account opening form it is argued that it cannot be presumed with certainty that if a person fills up an account opening form belonging to some other account holder, then he cannot be presumed to be funding the deposition of any amount in such accounts. It is argued that Sunil Khairwal (A-2) had merely filled up some of the account opening form at the instance of account holders.
417. Report of handwriting expert which is exhibited as Ex.PW37/2 (D-310) dated 29.01.1998, lays down the opinion that questioned signature/handwriting of Sunil Khairwal (A-2) i.e., Q- 45 to Q-47, Q-54, Q-55, Q-55A, Q-55B, Q-56, Q-57, Q-57A, Q- 57B, Q-58A are tallied with specimen writing S-10 to S-19 exhibited as Ex.PW37/7. These specimen handwriting/signature CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 202 of 309from S-10 to S-19 are that of Sunil Khairwal (A-2) and above mentioned questioned handwriting/signature are that of Sunil Khairwal (A-2), as well. It has been argued that concerned handwriting expert T. R. Nehra has not been called as prosecution witness nor examined in the court but PW-37 V. K. Khanna, Principal Scientific Officer, CFSL has been examined in his place.
418. It is further argued that when the report is given by one expert and other expert is called to prove the same then such other expert can only authenticate the signature of other expert. It is stated that in the absence of examination of the person who has given the report, all such material questions cannot be raised to such other person pertaining to non application of mind and report not being genuine or motivated. It has been argued that in such circumstances, such report i.e., Ex.PW37/2 cannot be said to be established as per law. Such submissions made on behalf of accused persons cannot be said to be without any basis as the report of an expert even otherwise is presumed to be correct unless and until it is questioned during cross examination. Such questions pertaining to report being genuine could only be raised and answered by the person who has prepared it. In my considered opinion, any other person besides the author of the document, more particularly an expert, cannot answer any such queries as per law.
419. It is needless to say that report of an expert is not per se admissible. If this would be the intention of the legislature then no expert would be called for his examination during trial. Above all accused persons have argued in alternate that even if it is presumed CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 203 of 309that account opening form of PW-123 Ram Swaroop or any other person was filled up in the handwriting of Sunil Khairwal (A-2) then by such handwriting itself it cannot be presumed that Sunil Khairwal (A-2) had deposited all the amount in that account either by himself or on behalf of C. S. Khairwal (A-1). These submissions made on behalf of accused persons cannot be ignored in its entirety. Thus, in my considered opinion C. S. Khairwal (A-1) has raised probable defence to this extent by preponderance of probabilities.
420. Therefore, in my considered opinion, it cannot be said to establish the fact that Sunil Khairwal (A-2) had also deposited the amount either by himself or after obtaining the same from C. S. Khairwal (A-1), in the absence of any corroborative piece of evidence available on record. In my considered opinion, IO PW- 143 ought to have brought on record more material evidence in this regard which is however, lacking here.
421. In the absence of any evidence showing that account holders not being having enough financial status or potency that they could open such bank accounts or could have deposited the amount further in their account and in addition thereto, that such amount was financed by C. S. Khairwal (A-1), it cannot be presumed that amount in such accounts is belonging to C. S. Khairwal (A-1) only. In this regard, it is important to mention here that Sunil Khairwal (A-2) is also having bank accounts in his name and has also been receiving agriculture and rental income. It is also reflected from the record that Sunil Khairwal (A-2) has been filing his ITRs for the year 1992-93, 1993-94 and 1994-95 on record for CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 204 of 309which PW-114 is relevant witness. This fact cannot be ignored.
BANK ACCOUNT OF K.C.SHARMA (A-3) (SINCE DECEASED) AT PAGE NO 31 OF THE CHARGE-SHEET.
422. Charge-sheet reflects certain bank details pertaining to K.C.Sharma (A-3) (since deceased). It has already been observed in above mentioned paras that since proceedings qua K.C.Sharma (A-3) (since deceased) stands abated, therefore, anything contrary to K.C.Sharma (A-3) (since deceased) cannot be presumed. Moreso, there is no evidence available on record to establish the fact that all these sum of money in the banks i.e. Allahabad, DNS, SBI, Andhra are held by K.C.Sharma (A-3) (since deceased) on behalf of C. S. Khairwal (A-1).
MOVABLE ASSETS IN VARIOUS BANKS MENTIONED AT PAGE NO. 32 OF THE CHARGE-SHEET.
423. At page No. 32 of the charge-sheet certain items have been mentioned showing the deposits/FDRs in various banks which are alleged to be benami of C. S. Khairwal (A-1). Item Nos. 1, 2 and 3 has not been pressed by prosecution stating that there is no evidence led during trial in this regard. Thus, these three items cannot be linked with and attributed to C. S. Khairwal (A-1).
424. With regard to item nos. 4, 5, 7, 8, 9, it is reflected that they have been sought to be proved from the testimony of IO PW-143.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 205 of 309IO PW-143 has been asked during his cross examination as to how this item is connected with C. S. Khairwal (A-1) for which it is stated by the IO that it has been wrongly mentioned in the charge- sheet as Sunita Marketing whereas it is Smriti Marketing. IO has not placed on record any document to show that this concern/proprietorship is connected with C. S. Khairwal (A-1). One copy of signed cheque D-242, has been filed on record.
425. Allegation as per charge-sheet are that this cheque is for Rs.1 Lakhs and it has been used to make payment for purchasing property no. 23, i.e. Flat at Puneet Housing Cooperative Society, Mayur Vihar. In this regard, PW-123 Ram Swaroop has not stated anything that C. S. Khairwal (A-1) has arranged this money or has paid by himself. The signature appearing on this cheque seems to be by some Khanna and Neelam and not purportedly signed by C. S. Khairwal (A-1).
426. With regard to item No. 5, it is stated to be pertaining to some Chit Fund Company but no document in relation thereto being connected with C. S. Khairwal (A-1) or managed and controlled by him has been placed on record nor any light has been thrown by PW-143 who has stated that he had carried out no investigation in this regard pertaining to contribution made by C.S. Khairwal (A-1).
427. With regard to item No. 6, it is reflected that as per the date so mentioned it pertains to 19.02.1996 whereas the FIR is dated 18.02.1996. Thus, it appears to be beyond the check period.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 206 of 309428. With regard to item No. 7 originals pertaining to this item has not been placed on record and it is marked as 'Mark 143/Z-12' (D-
98). It is further reflected from the record that as per allegation ABSU MANSU Automobile is stated be connected with C.S.Khairwal (A-1), however, no document in this regard has been placed on record by the prosecution showing that this firm/proprietorship concern is managed and financed by C.S.Khairwal (A-1) .
429. With regard to item No. 8 and 9, it is reflected from the record that the concerning account SB 9111 (D-153) is pertaining to Panna Lal and not related to C. S. Khairwal (A-1) or Sunil Khairwal (A-2). Birbal Charitable Trust is a Trust and the entire family is Trustee. In my considered opinion, prosecution ought to have brought on record additional evidence to show that though it is a Trust wherein all family member are Trustee but the amount therein, in account SB 9111 (D-153), has been deposited or financed by C. S. Khairwal (A-1) only. In these circumstances, I am of the opinion that from the limited testimony of IO PW-143 to this extent wherein he has stated at various places that he had not conducted proper and thorough investigation, cannot said to corroborate this fact.
ITEMS MENTIONED AT PAGE No. 33 OF THE CHARGE-
SHEET.
430. As per allegation in the charge-sheet, 12 items have been CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 207 of 309mentioned and are stated to be linked with C. S. Khairwal (A-1) being spent by him from his income not from lawful sources. Item No. 1, 3, 6 and 7 are stated to be related to property No. 22 and 24 mentioned at page No. 18 and 19. observation in this regard, have already been made while discussion under heading 'immovable properties' in above mentioned paras. This property i.e. 34 Gautam Apartments was not found in possession of C. S. Khairwal (A-1) at the time of search/raid conducted. There is an order of CIT and ITAT as well as document pertaining to conviction of Abha Tyagi is placed on record and have been discussed at length. The recovery as alleged, as per record, have been disputed on behalf of C. S. Khairwal (A-1). Observation in order of CIT and ITAT are against the findings of IO PW-143. Thus, in my considered opinion, these items, like other items mentioned above, shall go along with the observation made pertaining to item No. 22 and 24 mentioned at page No. 18 and 19 of charge-sheet.
431. With regard to item No. 2, the relevant document is D-17.
From the careful perusal of the record, it is reflected that no valuer was present at the spot. Thus, the onus is upon prosecution to establish this fact that this valuation done by IO is justifiable. PW- 143 has been cross examined on this aspect, however, he has not thrown any light in this regard. Similarly, with regard to item No. 5, no explanation has been furnished by PW-143 during his examination. This item is 25 debentures of Oswal Chemicals and Fertilizers, however, the relevant document pertaining thereto has not been placed on record. It also appears from the record that for item No. 8, 9 and 10 mentioned at page No. 33 and 34 of the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 208 of 309charge-sheet, prosecution has not led any evidence to establish these items that the values assigned to them pertains to C. S. Khairwal (A-1). PW-2 is the only witness examined by the prosecution with regard to item No. 9, who has turned hostile.
432. During his examination in chief, PW-2 Gulshan Chadda, who is stated to be the Director of M/s Karigar Auto Agency Pvt. Ltd. in March, 1996 and distributor of Mico Plugs in Delhi deposed that he knew C. S. Khairwal (A-1) and Sunil Khairwal (A-2) and correctly identified them in the court. PW-2 has stated that C. S. Khairwal (A-1) owned a flat at Jhandewalan and was running a firm but he do not know the name of the firm. PW-2 has further stated that when he had visited there he found the firm was working who used to manufacture electronic items and used to sell calculators. PW-2 is stated to have family terms with C. S. Khairwal (A-1) and his family. PW-2 has further stated that his younger brother Ashok Kumar was also a family friend of Mr.Khairwal.
433. This witness was found to be resailing from his earlier statement recorded under Section 161 Cr. P.C, therefore he has been allowed to be cross examined by Ld. Spl. PP CBI. This witness has denied the fact that he had sold one Tata Sierra bearing registration No. DL-1CD-7420. During his cross examination on behalf of A-1, PW-2 has stated that Sunil Khairwal (A-2) was running M/s Sunita Enterprises.
434. From the testimony of PW-2 nothing incriminating against C. CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 209 of 309S. Khairwal (A-1) and Sunil Khairwal (A-2) is being reflected. C. S. Khairwal (A-1) on the contrary has examined D1W4 Vimal Raj in this regard in support of his contention, who has stated that vehicle bearing No. DL 1CD 7420 is not in the name of C. S. Khairwal (A-1).
435. With regard to item No. 11 and 12, it is reflected that they stands in the name of Sunita Khairwal. As per record, she is stated to have married in the year, 1992. In these circumstances, in the absence of any document to the contrary these two items cannot be said to be belonging to or financed by C. S. Khairwal (A-1).
436. Moreso, C. S. Khairwal (A-1) has placed on record ITRs and financial statement pertaining to Sunita Khairwal showing that she was having her financial status independent of her father and as she was married therefore, she was not dependent on her father i.e. C. S. Khairwal (A-1). IO has not placed on record any document to the contrary. With regard to item No. 4, it is reflected that it has not been disputed by C. S. Khairwal (A-1). Hence, it is considered to be admitted.
ALLEGATIONS AND SUBMISSIONS PERTAINING TO WILL DATED 17.09.1987
437. As per allegations in the charge sheet Will dated 17.09.1987 of Birbal Khairwal is stated to be forged, fabricated and manipulated by C.S. Khairwal (A-1). It is a matter of record that Birbal Khairwal, father of C. S. Khairwal (A-1) had expired in January, CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 210 of 3091988. One witness PW-37 V. K. Khanna has been examined to prove the report given by T. R. Nehra which is Ex. PW 37/2 (D-
310). It is also a matter of record that T.R. Nehra was not brought in witness box and he is stated to have expired. This witness PW- 37 has stated that T.R. Nehra was provided a number of specimen handwriting/signature of Ram Swaroop and Sunil Khairwal (A-2), however, the only relevant observation of expert T.R. Nehra in favour of prosecution is pertaining to questioned signature/ handwriting of Sunil Khairwal (A-2) i.e., Q-45 to Q-47, Q-54, Q- 55, Q-55A, Q-55B, Q-56, Q-57, Q-57A, Q-57B, Q-58A which are stated to be tallied with specimen writing S-10 to S-19 exhibited as Ex.PW37/7.
438. These specimen handwriting/signature from S-10 to S-19 are that of Sunil Khairwal (A-2) and above mentioned questioned handwriting/signature are that of Sunil Khairwal (A-2), as well. It has already been mentioned in above paras that besides this report pertaining to account opening form in the handwriting of Sunil Khairwal (A-2) relating to relevant bank account No. SB7004 to SB7007 in Oriental Bank of Commerce, no other report of expert is in favour of prosecution. In other words, certain opinion in the report of T. R. Nehra (since expired) have not been established by the prosecution as nothing has been stated in that regard by PW-37 V.K.Khanna. Only fact established by PW-37 is pertaining to handwriting of Sunil Khairwal (A-2) on account opening form, as mentioned above.
439. From the careful perusal of the entire record and the evidence CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 211 of 309led by prosecution, it is reflected that there is no evidence led by prosecution pertaining to forgery committed by C. S. Khairwal (A-1) or Sunil Khairwal (A-2) qua Will in question. One of the allegations, as per record, against accused persons as reflected from the charge sheet, is that there is relinquishment deed dated 17.08.1989. It is alleged in the charge sheet that all the facts have been manipulated by C. S. Khairwal (A-1) in order to create record in his favour so that he could furnish explanation relating to unaccounted money/income which is not from his lawful sources.
440. In this regard prosecution has examined PW-107, PW-119, and A-1 has examined D1W8.
441. PW-107 Puranmal Sharma is contractual postman in Ghosla Post Office, Mau Ibrahimpur, Rajasthan. He knew C. S. Khairwal (A-1), Charan Singh being native of same village. He also knew father of C. S. Khairwal (A-1), who was an agriculturist and also having sheeps and goats. This witness has stated that there was no shop in their village by the name of "Ram Narayan Badri Prasad Barigamwal".
442. PW-107 during his cross-examination has stated that father of C. S. Khairwal (A-1) was having five shops near bus stand village Mau, Ibrahimpur, Rajasthan and two shops in village.
443. Next witness examined by prosecution is PW-119 Ahmed Razi-uddin, who was Assistant in Delhi State Civil Supply Corporation in the year 1996-97. He furnished information CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 212 of 309pertaining to personal record i.e. statement of immovable property of Hari Prasad Khairwal, brother of C. S. Khairwal (A-1) to CBI.
444. C. S. Khairwal (A-1) in his defence has examined, D1W8, who brought documents pertaining to service record of C. S. Khairwal (A-1). He has placed on record two documents i.e. Ex.D1W8/B and Ex.D1W8/D1, showing that C. S. Khairwal (A-1) has intimated to his department regarding relinquishment deed on 21.05.1990. It is argued that there is proper intimation made by C. S. Khairwal (A-1) to his department much prior to registration of FIR on 18.02.1996. One of the submissions made on behalf of C. S. Khairwal (A-1) is that if the Will in question was not in existence in 1989 then how it was intimated to his department already, has not been explained by prosecution.
445. With regard to another allegation on C. S. Khairwal (A-1) that Will is manipulated because Birbal Khairwal was residing at Delhi whereas it has been executed at Rajasthan. In this regard, it is argued that there is no bar in execution of Will at a place different from the place where the person making the Will is residing. It is a matter of record that Birbal Khairwal had died at Bharatpur, Rajasthan. This fact is not disputed by the prosecution.
446. During arguments, C.S.Khairwal (A-1) has placed on record certain Jamabandi i.e., D-43 which is pertaining to agricultural land at Rajasthan showing that agriculture was done on such land. This document D-43 was seized from the house of Panna Lal, brother of C. S. Khairwal (A-1). Panna Lal has not been examined CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 213 of 309in this regard by which this fact could be controverted by the prosecution that Birbal Khairwal was not having any land at Rajasthan, as alleged.
447. It is reflected from the careful perusal of testimony of PW-119 vide document exhibited Ex.PW119/1 which shows that Hari Prasad, another brother of C. S. Khairwal (A-1) was a government servant and he has declared this fact of agricultural land at Rajasthan, to his department on September, 1995. Impugned Will has attesting witnesses as well, however, none of such attesting witnesses have been examined by the prosecution nor they were made as listed witness by prosecution. It has been argued by accused persons that impugned Will in question talks about 7 shops which is also corroborated by PW-107 Pooran Mal Sharma, however, allegation qua only 5 shops are forming part of present case.
448. PW-107 Pooran Mal Sharma is an important witness examined by prosecution in this regard, who has categorically stated that Birbal Khairwal was having seven shops and agricultural land as well as rearing sheeps and goats at Rajasthan. In these circumstances, in my considered opinion the allegation pertaining to the impugned Will being forged and fabricated cannot be said to be established as none of the witness has been examined by the prosecution in this regard who has stated that impugned Will is forged and fabricated nor there is any opinion of any handwriting expert brought by prosecution to discharge the burden of proving this fact upon them.
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Page No. 214 of 309SANCTION FOR PROSECUTION QUA C. S. KHAIRWAL (A-1)
449. One of the defence taken by C. S. Khairwal (A-1) is that sanction for prosecution sought against C. S. Khairwal (A-1) is not proper and not sought according to established norms and procedure so laid down therefore, sanction sought against C. S. Khairwal (A-1) is bad in the eyes of law, therefore, on this account itself the filing of charge-sheet and entire trial, stands vitiated.
450. Prosecution has examined PW-18 Jaswant Singh, who has deposed that he was posted as Under Secretary (Vigilance) with Ministry of Personnel Public Grievances and Pensions (Department of Personnel and Training). PW-18 identified his signatures at point A on the Sanction Order dated 05.02.1998 exhibited as Ex.PW18/1 vide which he accorded sanction for prosecution for accumulation of disproportionate assets against accused C. S. Khairwal (A-1). From cross-examination of PW-18, no material contradiction has emerged and he has corroborated whatever he has deposed in his examination in chief.
ARGUMENTS ON BEHALF OF C. S. KHAIRWAL (A-1)
451. It is stated on behalf of C. S. Khairwal (A-1) that he has been a public servant. PW-18 Jaswant Singh is the relevant witness who has been examined on the point of grant of sanction to C. S. CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 215 of 309Khairwal (A-1). PW-18 Jaswant Singh, is an Under Secretary and the grant of sanction is Ex.PW18/1 (D-307).
452. It is stated by C. S. Khairwal (A-1) that the procedure adopted by CBI to grant sanction is faulty and sanction has not been granted as per rules and procedure which is bad in the eyes of the law. C. S. Khairwal (A-1), as a matter of record, is an IAS whereas grant of sanction is under the signature of an Under Secretary, who is neither appointing nor removal authority nor an official higher and above C. S. Khairwal (A-1). Thus, the sanction order has not been passed by competent authority. Thus, it is non est i.e. has no effect in the eyes of law.
453. Ld. Counsel for C. S. Khairwal (A-1) has relied upon certain judgments in support his contentions and one of such judgment is titled as 'Ashok Aggarwal Vs. CBI'', MANU /SC/1220/2013.
454. It is stated that there is non application of mind on the part of sanctioning authority. It is stated that if we look into the merits of order of grant of sanction then not only PW-18 is not the competent authority nor it has any competence to grant sanction being Under Secretary. C.S. Khairwal (A-1) being an IAS can only be removed either by the President or any authority under delegation of power, delegated by the President to that extent. It is stated by C. S. Khairwal (A-1) that request for grant of sanction was initiated on 05.02.1998, whereas the request for sanction was sent on 10.11.1997.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 216 of 309455. The charge-sheet has been filed in April, 1998. The entire material which has been sent to the sanctioning authority i.e., PW- 18, requires that the entire material should be sent to such authority. It is stated that the entire material, means and implies that it should be supported with all the allegations in detail supported with the testimonies of all the witness and relevant documents as well as all such documents which are not only favouring the prosecution but also those documents and testimonies which reflect any opinion contrary to the allegation of prosecution. It is stated that entire material has not been sent to the competent authority. A number of witnesses have been examined during investigation even after sending the entire material to the competent authority, which is a matter of record. Opinion of expert has been received in June, 1998, however, IO of the present case has already stated in April, 1998 that the documents which are required to be sent to CFSL are forged. It is stated that IO has already framed an opinion with regard to guilt of accused. IO has also formed an opinion that documents are forged and such opinion has been superimposed upon the entire proceedings. Thus, he has influenced the investigation of the case by his personal whims and fancies.
456. It is stated that during investigation, criminal law amendment came into force and the IO was required to send the entire material with details along with testimonies of all the witnesses. It is stated by Ld. Counsel for C. S. Khairwal (A-1)that sending such material and testimonies including documents, does not mean that gist or crux of all the documents and testimonies should be sent, but the documents itself and testimonies of witnesses should be sent along CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 217 of 309with the entire file, instead of sending the crux which leads no scope of any personal opinion of the IO and which further leave the entire material to the discretion of the Competent Authority so that sanctioning authority should apply its mind independently which may or may not concur with the outcome of the investigating agency. It is stated that along with the said file a number of objections were filed by a number of witnesses regarding claim of ownership of property, however, no such affidavit has been filed along with such file sent to competent authority. Thus, there is suppression of facts.
457. It is stated by C. S. Khairwal (A-1) that the entire material sent to the competent authority does not include the element of sending the intimation of Will in question to the authority. This fact was in existence much prior to the registration of FIR, however, it did not form part of material sent to the competent authority. It is further stated that the sanction order only talks about Prevention of Corruption Act. There has been no reference of any of the allegation of attraction of various sections of Indian Penal Code. Thus, sanctioning authority has not given its decision in a fair manner and it was not in a position to give its consent impartially as the entire material was not placed before it.
458. It is stated by C. S. Khairwal (A-1) that he had challenged the sanction order before the court during trial by way of filing an application in which CBI had filed its reply and along with that reply the SP report Ex.PW143/D2-7 was filed. It is stated that by filing of the copy of SP report, which was sent to the competent CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 218 of 309authority at the time of grant of sanction, C.S.Khairwal (A-1) came to know about the actual situation, as to what material was placed before the competent authority. This SP report contains the calender of evidence. It talks about 114 witnesses and 51 documents whereas the final charge sheet so filed, talks about 295 PWs and 335 documents. Thus, the entire material, as reflected from the report of SP, has not been sent before the Sanctioning Authority.
459. Ld. counsel for accused has relied upon the following judgments in support of his contention : -
i. CBI Vs. Ashok Kumar Aggarwal, MANU /SC/1220/2013. ii. Manshuklal Vithaldas Chauhan Vs. State of Gujarat, AIR 1997 SC 3400 .
iii. State of Tamil Nadu Vs. M. M. Rajendran, (1988) 9 SCC 268. iv. State of Karnataka Vs. Amir Jan, MANU/SC/7922/2007.
460. It is stated by C. S. Khairwal (A-1) that crux of ratio of these judgments is that for grant of sanction, it is mandatory that the entire material should be placed before the Sanctioning Authority along with draft charge-sheet. Draft charge-sheet should be the last step and no further investigation should be left to be done but only Ministerial acts to be concluded. It is stated that a number of witnesses as mentioned above have been recorded even after 10.11.1997. It is further stated that in between 10.11.1997 to 05.02.1998 more witness has been examined whose statement have not been sent to the Competent authority and such witnesses CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 219 of 309include the testimony of witnesses Ram Swaroop, Madan Lal etc.
461. Thus, fair opportunity has not been given to C. S. Khairwal (A-1) as he has been deprived of all those aspects which could be in his favour. It is argued that IO deliberately did not place all the documents and testimonies of witnesses before sanctioning authority, which could be independently verified by such authority and there could be a possibility, subject to wisdom of sanctioning authority, that as such material like affidavit and testimonies of various witnesses who claimed the ownership of a number of properties for which the benami transaction has been carried on the part of C.S.Khairwal (A-1), could be in favour of C.S.Khairwal (A-1) .
462. It is argued that President of India, is the appointing authority for an IAS. If no order is to be passed by President of India then it should be passed by an authority having delegated power by the President of India. It is further stated on behalf of C. S. Khairwal (A-1) that when an application for challenging the sanction order was filed and vide order dated 05.03.2016, though it was dismissed, however, Ld. Predecessor of this court observed a number of things in the order itself that various documents have not been sent along with the report and considered by the sanctioning authority. It is further stated on behalf of C.S. Khairwal (A-1) that the said order has been challenged before the Hon'ble High Court / Hon'ble Supreme Court of India that the said aspect of grant of sanction being valid or not has to be considered by the court at the time of final disposal of the case.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 220 of 309463. It is further stated on behalf of C. S. Khairwal (A-1) that an opinion of CVC has been obtained, however, CVC is not the prescribed authority to grant sanction. In this regard, Ld. Counsel for C. S. Khairwal (A-1) , has relied upon K. K. Kapila's case in which it has been held that the sanction order is not approval of sanction but is relevant fact. PMO may have approved the sanction but sanction order should be passed by the prescribed competent authority i.e. such authority, who has the power of renewal as well. It has been held in K.K. Kapila's case that delegators non potest delegare. It is stated that the sanctioning authority is not the competent authority to grant sanction. It is stated that despite this fact there is no sanction order U/s 197 Cr. P.C. OBSERVATION AND ANALYSIS
464. It is reflected from the submissions made by prosecution and accused persons that grant of sanction against C. S. Khairwal (A-1) has been challenged on two accounts. One is the application of procedure to be adopted and other is grant of Sanction by Under Secretary being under delegated capacity or not.
465. With regard to second aspect, i.e. issuance of Sanction Order by Under Secretary it is important to go through all the relevant documents as well as testimony of PW-18 and report of SP. From the careful examination of the relevant material it is reflected that the issue pertaining to grant of sanction for prosecution against C. CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 221 of 309S. Khairwal (A-1) who was appointed an officer of IAS and was working at the post equivalent to Joint Secretary, has been referred to the authority which is having delegated power by President of India. This matter has been discussed at top bureaucratic level and top government authority i.e. at Prime Minister level.
466. The report of SP reflects all such facts. This fact is not disputed by C. S. Khairwal (A-1). One of the arguments put-forth by C. S. Khairwal (A-1) is that mere discussion at the committee formed as per the direction of Prime Minister does not qualify the requirement of grant of sanction by the authority higher and above and having authority to remove such government servant. It is argued that mere discussion by such higher authority cannot justify the final order passed by under Secretary who is much below to the rank of an IAS. PW-18 has categorically stated that he has acted by virtue of delegated authority by President of India.
467. It appears, in my considered opinion that the requirement of law in such circumstances in present case is that the order should be passed either by President of India or by an authority having delegated power to do so. PW-18 has categorically stated that the grant of sanction is merely the order passed for communication of the final verdict of the higher authority.
468. Prosecution has relied upon certain judgments in support of their contention one of the judgment is 'State Vs. K. Narasimhachary', 2006 CRI.L.J.518 wherein it is held that:
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 222 of 309'In the instant case, the order of sanction for prosecution of public servant was issued under S. 19 of Prevention of Corruption Act (1988). The Secretary to State Government merely authenticated the said order of sanction, which was issued in the name of the Governor of State. The order of sanction was, thus, issued by the State in discharge of its statutory functions in terms of S.19 of the Act. The order of sanction was authenticated. The said order of sanction was an executive action of a state having been issued in the name of the Governor. It was authenticated in the manner specified in the Rules of Executive Business. The authenticity of the said order has not been question. It was, therefore, a public document within the meaning of S. 74 of the Evidence Act. A public document can be proved in terms of Ss. 76 to 78 of the Evidence Act. A public document can be proved otherwise also. The high Court, therefore, was not correct in invoking the provisions of S47 of the Evidence Act in the instant case, a sit was not called upon to form an opinion as to by whom the said order of sanction was written and signed. (Paras 11, 14, 16)
469. In the light of observation made in K. Narasimhachary's (Supra) case, the order for sanction of prosecution is perused again. It is reflected from the perusal, in clear words, that the said order has been passed as per the directions and concerned Under Secretary i.e. PW-18 is merely an intimating authority. Thus, in these circumstances, in my considered opinion, the order dated 05.02.1998 exhibited as Ex.PW18/1 cannot be said to be vitiated on this account that an Under Secretary has issued sanction order for prosecution for an IAS. It is reflected from the record itself and stated by PW-18 himself that he has signed the order as per CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 223 of 309delegated power assigned by President of India. The decision regarding issuance of order for sanction for prosecution has been made by a committee constituted as per delegated power issued by President of India.
470. The other aspect on which the sanction order has been challenged, is taken up. During arguments Ld. Counsel for A-1 has relied upon a number of judgments in support of his contention stating that the procedure adopted by the IO in seeking sanction for prosecution and the manner in which it has been dealt with by him, is not free from vices. It is argued that IO had not placed on record the entire material before the sanctioning authority and it was filed along with draft sanction order.
471. In this regard, he has relied upon one judgment titled as 'CBI Vs. Ashok Aggarwal', MANU SC 1220 (2013). It has been held in this case as under that:
"The legal propositions can be summarized as under:
(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
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(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.
It has been further held that:
The Prevention of Corruption Act, 1988 - Section
-19 - - Sanction for prosecution- grant of sanction- Is not mere formality - provisions in regard to sanction must be observed with complete strictness-- keeping in mind public interest and protection available to accused against whom sanction is sought - Grant of sanction is not acrimonious exercise but solemn and sacrosanct act which affords protection to Government servant against frivolous prosecution. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 225 of 309
exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter- alia on the ground that the order suffers from the vice of total non-application of mind. (4) The Prevention of Corruption Act, 1988 -
Section -19 - - Sanction for prosecution- Power to grant of sanction- Statutory authority has to apply its mind and take decision whether to grant sanction or not - No force in submission that competent authority can delegate its power to some other officer or authority, or Hon'ble Minister could grant sanction even on basis of report of S.P.'
472. It has been further argued on behalf of Sunil Khairwal (A-2) that sanction order without supplying the entire record is non est. In this regard, C. S. Khairwal (A-1) has relied upon following judgments : -
i. 'Mansukhlal Vithaldas Chauhan Vs. State of Gujarat', AIR 1997 SC 3400.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 226 of 309
ii. 'State of Karnataka Vs. Ameer Chand', 2007 (59) AIC 133 iii. 'CBI Vs. Ashok Aggarwal', MANU/SC/1220/2013. iv. 'Ashok Kumar Aggarwal Vs. CBI', 2016 Cri.LJ 2410.
473. It has been held in above mentioned judgments that entire record with details including statement of all the witnesses should be placed before the sanctioning authority for its perusal. If entire material is not placed or investigation is still continued after sending certain material to sanctioning authority and testimonies of various other witnesses are further recorded and material collected, then it is considered as non compliance of essential requirement of law. Grant of sanction in such circumstances is bad in the eyes of law.
474. It has been further argued on behalf of C. S. Khairwal (A-1) that sending of material before the sanctioning authority does not imply that gist of the statement has to be sent. Ld. Counsel for C. S. Khairwal (A-1) has relied upon one judgment in this regard in support of their contention titled as "State of Tamil Nadu Vs. M.M. Rajendran, (1998) 9 SCC 268.
475. From the careful perusal of the record as well as the report of SP exhibited as Ex.PW143/DZ-7 which is admittedly sent before sanctioning authority for obtaining sanction for prosecution reflects that it contains calender of evidence containing 114 witnesses and 51 documents. It is a matter of record that as per list of witness there are 295 PWs and 338 documents. It is therefore, reflected CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 227 of 309that even after sending the material along with calender of event to the sanctioning authority, IO had examined a number of witnesses and had collected number of documents even thereafter. Thus, as per record IO had not sent the entire material to be placed before concerned Sanctioning Authority. In these circumstances, in my considered opinion, submissions made on behalf of prosecution cannot be considered to be correct that sufficient material has been sent to the concerned authority.
476. The judgment relied upon by C. S. Khairwal (A-1) lays down in clear words the mandate of law to be considered in such circumstances that entire material and documents in detail along with calender of events which is not a gist thereof, has to be sent to the sanctioning authority. If it is not sent as per procedure then sanctioning authority was not having opportunity to apply its mind in a free and fair manner as not all the material has been placed before it. Thus, in my considered opinion the sanction order exhibited as Ex.PW18/1 cannot be said to be free from vices that the entire material has not been placed before it. Thus, keeping in mind the ratio laid down in M.M. Rajendran's case (Supra) and Ashok Aggarwal's (2013) case (Supra), therefore, sanction order cannot be said to be proper in the eyes of law.
477. So far as, sending the draft sanction along with calender of event is concerned, it is reflected from the arguments that these are the practices adopted by the concerned IO for obtaining the order by which the sanctioning authority is neither influenced nor misguided nor it is considered in the form of direction to such CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 228 of 309authority to pass the sanction order in the manner prescribed in the said draft. In this regard, the plea of accused persons that draft copy of sanction was provided to the sanctioning authority, which reflects that such sanctioning authority has not applied its mind but has merely signed, is not tenable in the eyes of law. Other aspects besides sending the draft sanction order have been considered in above mentioned paras.
ROLE AND ARGUMENTS ON BEHALF OF SUNIL KHAIRWAL (A-2)
478. It is argued on behalf of Sunil Khairwal (A-2) that he is a private person. The charge so framed against him under Section 120 B and 471 IPC along with relevant provisions of PC Act. It has been alleged that Sunil Khairwal (A-2) conspired with C. S. Khairwal (A-1) and K.C.Sharma (A-3) (since deceased) and in furtherance of criminal conspiracy, C. S. Khairwal (A-1) who is the father of Sunil Khairwal (A-2) converted his income not from lawful sources, in the form of investment in the name of Sunil Khairwal (A-2), K.C.Sharma (A-3) (since deceased) and various other family members and relatives. It is alleged that check period starts from 16.07.1974 and continued till 18.02.1996. Sunil Khairwal (A-2) is stated to have born in 1970. It is argued that at the start of check period he was less than 5 years, therefore, prosecution has not stated anywhere during entire allegation in the charge-sheet as to when he had started conspiracy or he was conspirator with C. S. Khairwal (A-1). It is argued that if the allegations made in the charge-sheet are perused then K.C.Sharma CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 229 of 309(A-3) (since deceased) came into picture at much later stage.
479. For the allegation of disproportionate asset, there should be acquisition of assets by C. S. Khairwal (A-1). When this acquisition has been started, has not been explained by the prosecution. Ld. Counsel for Sunil Khairwal (A-2) has relied upon one judgment of Yogender Kumar Jaiswal Vs. State of Bihar, (2016) 3 Supreme Court Cases 183, wherein in its 121 at page No. 261, it has been held that DA case is check period based and not situation specific.
480. It is argued on behalf of Sunil Khairwal (A-2) that, the burden of proof for plea of benami transaction is always upon the prosecution to establish. In this regard, Sunil Khairwal (A-2) has relied upon one judgment titled as 'Jay Dayal Goddard vs. Bibi Hazer', AIR 1974 SC 171, in which in para No. 6, it has been held that:
'it is well settled that burden of proving that a particular sale is benami and apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact.'
481. In this regard, Hon'ble Supreme Court of India has further held that, CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 230 of 309'Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formula or acid tests, uniformly :applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances : (1) the source from which 'the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami color; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.
482. In this regard, it has been argued that check period starts from 1974 to 18.02.1996. First part of the check period i.e. from 1974 upto 1988, falls beyond the act of 1988. Prior to 1988 i.e., enactment of PC Act 1988 unlawful source of income was also considered within the head 'income' however, after addition to explanation to Section 13 (1) (e) of the Act of 1988, only lawful source of income has to be considered. This fact has also been mentioned in the charge-sheet and page No. 35 of charge-sheet it is mentioned that criminal case is made out against C.S.Khairwal (A-
1), Sunil Khairwal (A-2) and K.C.Sharma (A-3) (since deceased) under Section 120 B IPC read with Section 5 (2) read with 5 (1)(e) PC Act 1947 corresponding to Section 13 (2) read with 13 (1) (e) of P C Act, 1988 read with Sections 420/468/471 IPC along with relevant portions of allegation of disproportionate assets under PC Act 1947 and PC Act 1988. It is argued that prosecution has not CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 231 of 309been able to distinguish and specify as to which particular Section is applicable in present case. A further anomaly has erupted at the time of framing of charge against accused persons.
483. Prosecution has not been able to consider the independent source of income of C. S. Khairwal (A-1) and Sunil Khairwal (A-
2). With regard to criminal conspiracy, the prosecution has not been able to establish whether there is any overt act on the part of Sunil Khairwal (A-2). Sunil Khairwal (A-2) has relied upon Section 10 of Indian Evidence Act and has laid reference upon judgment titled as State Vs. Nalini, (1999) 5 SCC 253, in this case it has been held that, "662. In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act illegal means. Those who do from the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intentions can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators."
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 232 of 309484. Ld. counsel for A-2 has also relied upon certain judgments in support of his contentions on the point of 'conspiracy' which are as under:
i. Natwarlal Sarkarlal Mody Vs. The State of Bombay, 1961 SCC Online SC 1.
ii. Ajay Aggarwal vs. Union of India, 1993 (3) SCC 609 iii. L. K. Advani Vs. CBI, 1997 SCC Online Del. 382. iv. State of Kerela Vs. Sugatham, (2008) SCC 203. v. Esher Singh Vs. State of AP (2004) 11 SCC 585 vi. V.C. Shukla vs. State (Delhi Admn. ) (1980) 2 SCC 665 vii. State of NCT of Delhi Vs. Navjot Sandhu (2005)11 SCC 600 viii. Kehar Singh & Ors. Vs. State Delhi Admn. (1988) 3 SCC 609
485. It has been argued that Sunil Khairwal (A-2) was merely four years old in the year 1974. When he had joined conspiracy is not explained by the prosecution. With regard to plea of benami transaction, it is argued that there is no evidence on money trail and prosecution has not been able to establish by leading any evidence that the money in purchase of movable and immovable assets in the name of Sunil Khairwal (A-2) was financed and supplied by C. S. Khairwal (A-1).
486. With regard to immovable property No. 2 mentioned at page No. 15 of the charge-sheet, agreement to sell is in the name of CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 233 of 309Birbal Khairwal. This fact is not disputed by Sunil Khairwal (A-2). It is further argued that Birbal Khairwal had taken a loan of Rs.1,60,000/- as reflected from the documents filed by prosecution itself is also not denied by Sunil Khairwal (A-2).
487. With regard to loan of Rs.1,60,000/-, there is one witness PW-
103 Pradeep Kumar examined by prosecution.
488. PW-103 Pradeep Kumar Gupta who was Senior Manager, Oriental Bank of Commerce, Safdarjang Enclave, New Delhi has stated that vide seizure memo dated 02.09.1997 Ex. PW 103/1 (D-
85) he handed over pay order No. 364831 to 346834 in the name of Digambar Prasad Jain, pay order no. 364838, 364864 to 364871 in the name of Shashi Jain, pay order no. 364872 to 364875 and 364915 in the name of Digambar Jain and other pay orders in the name of Sashi Jain and pay-in-slips to CBI. He also handed over one cheque, two pay orders and 3 paying slips dated 29.04.1993 to CBI.
489. It is reflected that this witness further stated that Birbal Khairwal had taken advance of Rs.60,000/- from their branch as per statement Ex. PW103/14 and a loan of Rs.1,00,000/- was sanctioned in favour of Birbal Khairwal for making his personal expenses against personal guarantee of C. S. Khairwal (A-1). This witness further provided details of three self drawn cheques, six pay orders, 20 FDRs, 13 debit-credit transfer vouchers for payment of FDRs, details of 20 cheques pertaining to SB Account No. 4294, CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 234 of 309SB Account No. 4389 and SB Account No. 7000, and various other documents.
490. This witness has not been cross-examined by the accused persons. It is argued that PW-103 has established the fact that Birbal Khairwal had taken Rs.1,60,000/- from Oriental Bank of Commerce, Safdarjang Enclave, New Delhi which is stated to have been used in purchase of this property.
491. It is further argued that General Power of Attorney qua this property at East of Kailash is in the name of Panna Lal, brother of C. S. Khairwal (A-1). It is argued that if Panna Lal, who is brother of C. S. Khairwal (A-1) and son of Birbal Khairwal, is stated to have negotiated the deal then how it can be said to have been financed by C. S. Khairwal (A-1) is not explained by the prosecution.
492. It has been further argued on behalf of Sunil Khairwal (A-2) qua property mentioned at East of Kailash that one notice was issued from MCD regarding payment of tax, which is issued in the name of Birbal Khairwal. PW-56 has been examined in this regard.
493. PW-56 Dalip Singh who was working as Assistant Assessor and Collector, MCD in the year 1997 had brought on record the assessment order dated 22.03.1994 pertaining to property F-85, East of Kailash which is is exhibited as Ex.PW56/2. PW-56 has stated that Birbal Khairwal had written a letter dated 10.08.1988 CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 235 of 309which was written by him in response to Notice under Section 131 DMC Act for filing the return. No material contradiction has emerged in the cross-examination of PW-56 and he has corroborated whatever he has stated in his examination-in-chief.
494. With regard to construction of property No.3, mentioned at page No 15 of charge-sheet, it is argued that PW-106 Naveen Kumar Jain is not the expert in the field of valuation of property. D-309, talks about his report in this regard. It is however, stated that valuation done by Naveen Kumar Jain is per se faulty as reflected from the report itself that no reasonable criterion for assessment of valuation and determining the age of construction is mentioned nor the basis for consideration for date of construction has been explained and only the current market value has been taken by the PW-106. It is argued that the report Ex.PW106/3 cannot be relied upon.
495. It is further argued on behalf of Sunil Khairwal (A-2) that prosecution has relied upon photographs of the property situated at East of Kailash. These photographs are however, disputed and not admitted. It is argued that PW-66 has stated that PW-9 was the contractor and PW-9 himself has stated that the cost of renovation/construction carried out by him was around Rs. 1.5 Lakhs to Rs.2 Lakhs whereas it has been shown as Rs. 27,21,000/-.
496. The factum of loan of Rs.1,60,000/- is reflected in the wealth tax return (D-234) of Birbal Khairwal. It is further argued that CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 236 of 309attesting witness to Agreement to Sell qua East of Kailash has not been examined. It is argued that prosecution has examined Gyan Prakash Sharma one of the attesting witness to the document relating to East of Kailash, however, he has not supported the story of prosecution at all. It is further argued that there is a Will, with regard to this property situated at East of Kailash executed by Birbal Khairwal, however, this Will is stated to be forged.
497. It is argued that prosecution has not examined any witness to establish that the impugned Will is forged and fabricated. It is further argued that only the parties to the Will or the beneficiaries or person effected by such transaction can raise the plea of forgery or manipulation. Third person, who is stranger, cannot challenge the Will. It is stated that PW-37 is the only handwriting expert in this regard, examined by prosecution, however, he has not given the report and the report in question is stated to have been given by T. R. Nehra, who has not been examined by the prosecution. This report regarding disputed signature has not been proved by PW-37, as per law. It is stated that PW-37 is not a handwriting expert at all but a chemical examiner who has no expertise in giving opinion about handwriting/signature about a person.
498. In this regard, Sunil Khairwal (A-2) has relied upon certain judgment which are as under :
i. Padum Kumar Vs. State of Uttar Pradesh, (2020) 3 SCC 35 ii. State of Maharashtra Vs. Damu, (2000) 6 SCC 269 CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 237 of 309
iii. Keshav Dutt Vs. State of Haryana, (2010) 9 SCC 286 iv. State of HP vs. Jailal & Ors., (1999) 7 SCC 280 v. Ramesh Chandra Agarwal Vs. Regency Hospital Limited and Ors., (2009) 9 SCC 709 vi. Malay Kumar Ganguly Vs. Dr. Sukmanr Mukherjee & Ors., (2009) 9 SCC 221 vii. H. Siddhique by Lrs Vs. A. Ramalingam, (2011) 4 SCC 240 viii. Ashok Dulichand Vs. Madhav Lal Dubey & Anr.
(1975) 4 SCC 114 ix. U. Sree Vs. Srinivas, (2013) 2 SCC 114.
x. Jai Prakash Aggarwal Vs. State & Ors (236, 2017 DLT 632) xi. Rang Bahadur Singh & Ors. Vs. State of UP (2000) 3 SCC 454. xii. Karnesh Kumar Singh and Ors Vs. State of Uttar Pradesh, AIR 1968 SC 1402.
xiii. Pruthiviraj Jayantibhai Vanol Vs. Dinesh Dayabhai Vala and Ors, Criminal Appeal No. 177 of 2014
499. In one of the case relied upon by Sunil Khairwal (A-2), is State of Maharashtra Vs. Damu, (2000) 6 SCC 269. In this case, Hon'ble Supreme Court of India while dealing with issue pertaining to handwriting expert and expert evidence, held in its para nos. 39 and 40 that without examining the experts as witness in court, no reliance can be placed on the opinion (Exhibit-64) alone. Para no. 39 and 40 are as under : -
"In Ex. 88 confession, A4 Balu Joshi has stated CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 238 of 309
that on 4.2.95, A3 Mukinda Thorat had handed over to him a list in which A3 Mukinda Thorat had written down the articles to be purchased for performing the ceremony before Sagar and Dipak were killed. Later, A4 Balu Joshi had purchased those herbals as per the said list. Now, it is important to note that when PW44 Investigating Officer made a search in the house of A4 Balu Joshi on 8.3.95, a small book(an Almanac) which contained a slip of paper inside. A few names of herbal articles were written on that slip(such as frankencense). That slip was forwarded to the handwriting expert alongwith the specimen handwritings collected from A3 Mukinda Thorat for comparison. Ex. 64 is the opinion forwarded by the said handwriting expert holding that the scribe who wrote the slip and the specimen manuscripts was the same.
40. Exh. 64 is only the opinion of the Asstt. State Examiner of Documents. From that description alone, it cannot be gathered whether his office would fall within the purview of Sec. 293 of the Code. Hence, without examining the expert as a witness in Court, no reliance can be placed on Exh. 64 alone."
500. In another case as cited above, tilted as 'Keshav Dutt Vs. State of Haryana', (2010) 9 SCC 286, it has been held that :-
"16.We are afraid that we cannot concur with the views either of the trial court or of the High Court in the above regard. When the trial court chose to rely on the report of handwriting expert (Ext. PR), CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 239 of 309
it ought to have examined the handwriting expert in order to give an opportunity to the appellant and the other accused to cross examine the said expert. There is nothing on record to show that the appellant and the other respondents had admitted to the report of the hand-writing expert.
17. In our view, the trial court ought to have allowed the appellant an opportunity to cross examine the expert and both the trial court and the High Court erred in denying him such opportunity and shifting the onus on the prosecution. The decision cited on behalf of the appellant regarding reliance on the opinion of an expert who had not been examined as a witness, however, includes an Assistant Director of the State Forensic Science Laboratory in clause (e) of sub-section (4) of Section 293 Cr.P.C.
18. Section 293 (4) (e) which is relevant for our purpose is extracted below:
"293. Reports of certain government scientific experts:- (1) Any document purporting to be a report under the hand of a government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2)-(3)
(4) This section applies to the following
Government scientific experts namely-
(a)- (d)
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 240 of 309
(e) The Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f)
19. In the instant case, it is only the report of the handwriting expert, Ext. PY, which connects the appellant with the offence on account of Ext. PR which is said to be in his handwriting. Since the appellant had neither received the money nor was he present at the spot from where the other accused were apprehended, his case has to be treated on a different footing and since his complicity has not been established beyond doubt on the basis of Ext.
PR and Ext. PY, he must be given the benefit of doubt. Without, therefore, going into other questions which have been raised in this appeal, we are of the view that the same should be allowed on the aforesaid ground alone."
501. In another case as cited above, tilted as Pruthiviraj Jayantibhai Vanol Vs. Dinesh Dayabhai Vala and Ors, Criminal Appeal No. 177 of 2014, it has been held that :-
"17. Ocular evidence is considered the best evidence unless there are reasons to doubt it. The evidence of PW-2 and PW-10 is unimpeachable. It is only in a case where there is a gross contradiction between medical evidence and oral evidence, and the medical evidence makes the ocular testimony improbable and rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved. In the present case, we find no inconsistency between the ocular and CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 241 of 309
medical evidence."
502. In another case as cited above, tilted as Padum Kumar vs. State of UP, 2020 (3) SCC 35, it is held that, "16. It is fairly well settled that before acting upon the opinion of the hand-writing expert, prudence requires that the court must see that such evidence is corroborated by other evidence either direct or circumstantial evidence.
In Murari Lal v. State of Madhya Pradesh, (1980) 1 SCC 704, the Supreme Court held as under:-
4. .......True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses -- the quality of credibility or incredibility being one which an expert shares with all other witnesses -- but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 242 of 309
the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty "is to furnish the Judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the Judge to form his own independent judgment by the application of these criteria to the facts proved in evidence (Vide Lord President Cooper in Davis v. Edindurgh Magistrate, 1953 SC 34 quoted by Professor Cross in his evidence)."
5. .......
6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person "specially skilled" "in questions as to identity of handwriting" is expressly made a relevant fact......... So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 243 of 309degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it."
503. It is, therefore, argued that the sole testimony of PW-37 who is examined as expert cannot be relied upon as the concerned hand- writing expert T. R. Nehra was not examined as he is stated to have been expired and PW-37 V. K. Khanna is not a hand-writing expert but a chemical examiner. It is further argued that the valuation of the property No. 3, mentioned at page No. 15 is highly exaggerated as PW-9 himself has stated that he cost of renovation/construction was Rs.1.5 Lakhs to Rs.2 Lakhs.
504. This witness has not supported the story of prosecution and has turned hostile. The report given by PW-106 is faulty as it is reflected from the report itself that criteria of each floor is different. It is argued that the criteria for assessment of valuation should be uniform and the relevant circular of PWD should be mentioned. Thus, there is no uniformity in assessment of valuation of the alleged construction, hence, it cannot be relied upon.
505. With regard to property No. 4 at page No. 15 of the charge-
sheet, it is stated that Sunil Khairwal (A-2) do not dispute the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 244 of 309valuation as this property has nothing to do with him of C. S. Khairwal (A-1).
506. With regard to property No. 6 mentioned at page No. 16 of the charge-sheet it is mentioned that the sale deed exhibited as Ex.PW83/1 (D-226) itself reflects that there is existence of Wall, Pump, Tubewell etc. Thus, they cannot be considered as fresh construction/purchase. Hence, cannot be assigned either to C. S. Khairwal (A-1) or Sunil Khairwal (A-2).
507. With regard to property No.11 mentioned at page No. 16 and 17 of the charge-sheet, it is argued that Sunil Khairwal (A-2) do not dispute that he owns 1/10th part of this property and is claiming the same, stating it to be his own property. It is further argued that as per circular of CBI Ex.PW143/DA, unless until market value of the property is specifically proved, only the registered value mentioned in the document has to be considered. Thus, only value of the property to be considered and linked with Sunil Khairwal (A-2) is Rs.1,98,000/- which is the registered value of the property in question.
508. With regard to property No. 13 and 14 mentioned at page No. 17 and 18 of the charge-sheet, it is argued that Sunil Khairwal (A-
2) do not dispute the title deeds, however, Vinod Sharma the relevant witness has not been examined by the prosecution. PW-42 Manbir Singh has stated that his mother Brahm Kaur had sold this property to Vinod Kumar Sharma, who is stated to have sold it to CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 245 of 309Sunil Khairwal (A-2).
509. It is however, stated by PW-42 that he is not aware about the transaction as he was not present there. It is argued that non examination of relevant witness i.e. seller Vinod Kumar Sharma, prosecution cannot be said to establish this fact that the property in question is purchased by C. S. Khairwal (A-1) through Sunil Khairwal (A-2), as there is no evidence on record, brought by prosecution, pertaining to source of payment of money, in purchase of this property, by C. S. Khairwal (A-1).
510. With regard to property No. 18 mentioned at page No. 18 of the charge-sheet, it is argued that Sunil Khairwal (A-2) was merely SPA holder and its actual owner was Babu Lal, who had transferred it to Sudesh Seth. It is argued that prosecution has not led any evidence to show that the money in purchase of this property was not paid by Babu Lal but by Sunil Khairwal (A-2) or C. S. Khairwal (A-1).
511. It is further argued that this property is stated to have been purchased in the year 1994 and further sold in the year 1995 itself which is within the check period itself. Thus, if it is shown as expense for purchase of property then the sale proceed thereof should be treated as income as well for which no benefit has been given either to C. S. Khairwal (A-1) or Sunil Khairwal (A-2).
512. With regard to property No. 20 and 21 mentioned at page No. CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 246 of 30918 of the charge-sheet, it is argued that as per circular of CBI, exhibited as Ex.PW-143/DA, the registered value should be taken as Rs.4,90,000/-. It is further stated that PW-14 and PW-54 examined by prosecution in this regard have turned hostile and have not supported the story of prosecution.
513. With regard to allegations of movable property in the name of Sunil Khairwal (A-2) mentioned at page No.32 of the charge-sheet, it is stated that item no. 1, 2 and 3 have not been pressed by CBI during arguments. Item No. 4 is not pertaining to Sunil Khairwal (A-2) with regard to item No. 5 PW-74 R.K. Madan has been examined, however, he has not stated anything as to who owned this Chit Fund Limited.
514. PW-74 R.K. Madan, who was manager of Oriental Bank of Commerce, Pahar Ganj Delhi, had authenticated the certificate Ex.PW74/1 (D-94), pertaining to FDR No. 36347/599 of 1995 in the name of M/s Distinguish Chit Fund Pvt. Ltd. During his cross- examination, this witness expressed his ignorance that this FDR was initially obtained for a sum of Rs. 50,000/- in the year 1989.
515. It is argued in this regard that if this item belongs to Sunil Khairwal (A-2) then income derived therefrom should also be attributed to him for which no benefit has been given to him. It is further stated that how this item is linked with C. S. Khairwal (A-
1), is not established by the prosecution. There is no evidence brought on record by the prosecution in this regard.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 247 of 309516. With regard to item no. 6, it is mentioned that its date of opening is 19.02.1996, which is beyond the check period. Hence, it cannot be considered for the present case.
517. With regard to miscellaneous expenses mentioned at page No. 33 and 34, it is stated that one Contessa bearing No. DID 1 is belonging to Sunita Enterprises which, as per allegation, is used by Sunil Khairwal (A-2), hence it is alleged to be attributed to Sunil Khairwal (A-2) and through him, attributed to C. S. Khairwal (A-
1). In this regard, it is stated that Sunita Enterprises had been looked after by Sunita Khairwal, who is daughter of C. S. Khairwal (A-1). It is stated that D-96 is the ledger of Sunita Enterprises and at its page No. 5, an item of 257760 has been mentioned. This vehicle has been purchased prior to 23.08.1991 whereas the proprietorship has been transferred to Sunil Khairwal (A-2), in August, 1991 as per D-38. It is argued that the actual transfer of this proprietorship in the name of Sunil Khairwal (A-2) was done on 05.08.1993. Thus, it is stated that prosecution has failed to link all such expenses with Sunil Khairwal (A-2).
518. With regard to expenses shown at page No. 13 and 14 of charge-sheet, Sunil Khairwal (A-2) had admitted item No. 1, 5, 6, 25, 34 and 1/10th part of item No. 7. It is argued that rest of the items do not pertain to Sunil Khairwal (A-2).
519. On the aspect of income of Sunil Khairwal (A-2) as shown at page No. 7 of charge-sheet. It is argued that rental income of CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 248 of 309property at East of Kailash belongs to Sunil Khairwal (A-2). It is further argued that income from agricultural land also belongs to Sunil Khairwal (A-2). Sunil Khairwal (A-2) has stated that he was having sufficient source of income being private person, therefore, income cannot be calculated in the same manner like government servant i.e. C. S. Khairwal (A-1).
520. It is stated that Sunil Khairwal (A-2) in support of his contention has examined two defence witnesses i.e., D2W1 is Raghubir Singh from Income Tax Department and D2W2 is Sandeep Pal who brought record pertaining to Sunil Khairwal (A-
2). D2W1 brought assessment order of ITAT exhibited as D2W1/A, which reflects that detail enquiry qua agricultural income has been made and they are found not to be belonging to C. S. Khairwal (A-1).
521. In this regard, Sunil Khairwal (A-2) has relied upon certain judgments on the aspect of benami transactions, which are as under:
i. State of Karnataka Vs. J. Jayalalitha, (2017) ii. Jaydayal Poddar vs. Bibi Hazra, AIR 1974 SC 171 iii. Krishnanand vs. State of M.P. (1977) 1 SCC 816 iv. State of Maharashtra vs. Wasudeo Ram Chandra Kaidalwar, (1981) 3 SCC 199 v. Vasant Rao Guhe Vs. State of M. P., (2017) 14 SCC 442 vi. P. Nallammal Vs. State, (1999) 6 SCC 559 vii. K. Goverdhan Vs. State of A.P., 2001 SCC Online AP 1540 CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 249 of 309
522. After relying upon these judgments Sunil Khairwal (A-2) has argued that prosecution has failed to discharged the burden of proving the fact that Sunil Khairwal (A-2) was holding all the properties as mentioned in the charge-sheet as benami holder for C. S. Khairwal (A-1). It is further argued that prosecution has failed to show that Sunil Khairwal (A-2) was not having any means or sourcing therefore, all the properties which are in his name, besides benami properties have been sourced and financed from C. S. Khairwal (A-1) only.
FIFTH POINT OF DETERMINATION v. Whether C. S. Khairwal (A-1) and Sunil Khairwal (A-2) have manipulated the impugned Will in question and has used this forged document as genuine in his favour such manipulated and forged Will?
523. It has been discussed in above mentioned paras that prosecution has not been able to discuss the fact that the impugned Will was forged and fabricated. Relinquishment deed dated 17.08.1989 has also been controverted by the prosecution. C. S. Khairwal (A-1) on the other hand has brought on record the evidence that he had intimated all these facts to the department. Intimation to department cannot be said to be justify the bonafide and genuineness of fact disclosed to the department, however, such intimation given to the department can be considered for corroboration. The prosecution must establish beyond reasonable doubt that such intimation was not genuine. There is no evidence CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 250 of 309on record to this extent. In these circumstances, therefore, in my considered opinion, it cannot be presumed that the impugned Will was forged and fabricated and both C. S. Khairwal (A-1) and Sunil Khairwal (A-2) have used such forged and fabricated Will in order to create record in their favour by which they could justify the investment of their income, not from lawful sources.
524. I have heard the submissions made by the parties, I have also perused the entire evidence as well as documents placed on record, filed along with the charge-sheet. Averments made in the charge- sheet are also perused thoroughly, they have been discussed at length in the light of testimonies of prosecution witnesses as well as defence witnesses examined by A-1 and A-2. All the submissions, keeping in mind the facts established by the witnesses examined by prosecution and defence as well as judgments relied upon by prosecution and accused persons, are analyzed and my conclusion is given in the following paras:-
CONCLUSION
525. The plea of benami transaction is taken up prior to all other submissions. Such plea is pivotal to entire case which surround around the liability of the accused persons to be determined. A lot has been discussed above while dealing with the evidence led by both the parties and their rival contentions. It is needless to say that Section 13(1) (e) of the PC Act, 1988 in its explanation lays down that income of the public servant should be from lawful sources. It means and implies that if any income in hand is not CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 251 of 309explained that it is from lawful sources then it cannot be part of the lawful income of such public servant and no benefit of such income can be given to such servant which is not part of income from lawful sources.
526. As per charge-sheet at its page no. 2 and 3 the details of place of posting along with relevant period for C. S. Khairwal (A-1) is mentioned. These facts are not disputed.
527. Thereafter, the charge-sheet has defined and explained the income of C. S. Khairwal (A-1) from salary as well as other sources. At page no. 4 of the charge-sheet the total income for the period 17.07.1974 to February, 1996 is mentioned as Rs.5,51,156/-. This fact, again, is not disputed. It has been mentioned at page No. 5 that besides this income, other income of Rs.4,82,946/- has also been attributed to C. S. Khairwal (A-1). Thus, the total income of Rs.10,34,102/- is said to be accrued to C. S. Khairwal (A-1) during check period from 17.07.1974 to February, 1996. This income is found to have been increased during trial by prosecution and the income of Rs.4,82,946/- is found to be Rs.5,92,515/- and another income of Rs.68,872/- for the period 07.08.1964 to 16.07.1974 which is income before check period has also been considered.
528. Thus, the total income of C. S. Khairwal (A-1) is stated as Rs.12,12,543/-. Facts uptil this stage as mentioned in the charge- sheet has not been disputed by C. S. Khairwal (A-1). Allegations subsequent to this as mentioned in the charge-sheet are disputed and contested and from here onwards the burden and onus upon CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 252 of 309prosecution to prove, starts. It is needless to say that the first and foremost burden to be discharged in a criminal case is upon the prosecution. The liability of the accused must be proved beyond reasonable doubt. The burden upon accused however, is of lesser degree and the burden to be discharged by the accused is to show facts by preponderance of probabilities that he was not involved in the alleged incident as alleged.
529. One important factor cannot be ignored that IO had listed 295 witnesses, however, have examined only 143 prosecution witnesses out of which 41 witnesses have turned hostile and not supported the story of prosecution. Most of such witnesses who have turned hostile are public witnesses. As per record, 57 public witnesses were examined. This fact is relevant to note that all the remaining witnesses are either from the government department or from CBI. Witnesses from bank examined by prosecution are 24. None of these witnesses have stated that C. S. Khairwal (A-1) or Sunil Khairwal (A-2) on behalf of C. S. Khairwal (A-1) had deposited any money which was utilized in purchasing benami properties. PW-37 is the only witness called by CFSL who however, was not an hand-writing expert but a chemical examiner and the concerned witness T. R. Nehra, who had given the expert opinion, has not been examined. Thus, all these facts speaks for itself that most of the allegations raised in the charge-sheet are not supported by the witnesses.
530. It is alleged in the charge-sheet that Sunil Khairwal (A-2) S/o C. S. Khairwal was also having income from various sources. He CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 253 of 309was born in the year 1970 and during the relevant period when assets were required, he was school/college going student. Therefore, he was not having any independent source of income. From these allegation as mentioned in the charge-sheet, the plea of criminal conspiracy in between C. S. Khairwal (A-1) and Sunil Khairwal (A-2) is stated to have formed alleging that all the assets held by Sunil Khairwal (A-2) were actually the assets created by C. S. Khairwal (A-1) not only in his name but in the name of K.C.Sharma (A-3) (since deceased) and other persons. Sunil Khairwal (A-2) is stated to have earned an income of Rs.10,64,967/- in total as mentioned at page No. 6 and 7 of the charge-sheet.
531. At the time of framing of charge, no benefit of rental income was given to Sunil Khairwal (A-2). There is another income of Rs.8,90,086/- as rental income from F-85, East of Kailash. There is another income of Rs.1,04,221/- from bank interest on FDs and saving account maintained at OBC, SBI. This figure is further stated to include an income of Rs.70,660/- from M/s Sumit Enterprises, as reflected in ITRs of the firm. This income was found to be more as, the rental income from East of Kailash and income from bank was higher, therefore, total income of Sunil Khairwal (A-2) has been taken as Rs.1,79,260/-.
532. Prosecution has also taken the income of Anu Khairwal, W/o C. S. Khairwal (A-1) stating that she was illiterate and a house wife. Her father Chote Lal was also having no sufficient/substantial property/income. Anu Khairwal, W/o C. S. Khairwal (A-1) is said CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 254 of 309to accrue a total income of Rs.3,13,254/- details of which are mentioned at page no. 8 of charge-sheet. This income is arrived at after considering the income from income of Rs.38,254/- by way of interest on FDRs and bank account as well as income of Rs.2,75,000/- by way of sale of plot at village Khirki. The figure of Rs.38,254/- was found to be on higher side which was being corrected during trial, by prosecution and this figure has been taken as Rs.37,854/-. Thus, the total income of Anu Khairwal is Rs.3,12,854/-.
533. It has been further alleged that Manju Khairwal, D/o C. S. Khairwal was born in the year 1972. She is also holding certain income to the tune of Rs. 1,08,131/- which is income from interest on FDR, fixtures of F-85, East of Kailash and rent of Flat no. 210, UNA Cooperative Society. It is important to mention here that at the stage of charge and during trial thereafter, the income on account of fixtures from F-85, East of Kailash and on account of rental flat No. 210, UNA Cooperative Society has not been considered, whereas income from FDRs and interest has been increased. Thus, only a total income of Rs.32,220/- has been taken.
534. Charge-sheet at its page No. 9 further alleges that K.C.Sharma (A-3) (since deceased) and his daughter Abha Tyagi were known to C. S. Khairwal (A-1) and they had also being holding the properties and benami on behalf of C. S. Khairwal (A-1). Income of K.C.Sharma (A-3) (since deceased) as mentioned at page No. 9 is taken as Rs.4,07,165/- which is also said to be benami and linked with C. S. Khairwal (A-1). There has been change in the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 255 of 309income of K.C.Sharma (A-3) (since deceased) as well at the stage of charge and thereafter trial, however, it has been observed in above mentioned paras that proceedings against K.C.Sharma (A-3) (since deceased) stands abated, therefore, any evidence which has been led by the prosecution attributing towards his liability cannot be considered as per law. Thus, the aspect of income accrued to K.C.Sharma (A-3) (since deceased) is considered as out of context.
535. It has been further alleged in page No. 9 of the charge-sheet that Birbal Khairwal, father of C. S. Khairwal (A-1) was not having any independent source of income or assets in his name and he being dependent on C. S. Khairwal (A-1) was not in a position to earn sufficient. Birbal Khairwal was a poor person. C. S. Khairwal (A-1), through his CA managed to file ITRs in the name of his father by showing a total income of Rs.1,44,305/-
536. At page no. 9 & 10, therefore, the total income of C. S. Khairwal (A-1) is alleged, after adding the entire income of Sunil Khairwal (A-2), Anu Khairwal, Manju Khairwal, K.C.Sharma (A-
3) (since deceased), Birbal Khairwal in the income of C. S. Khairwal (A-1) as Rs.30,71,924/-. This income, however, has been modified and at the time of charge it is considered as Rs.22,92,170/-. After this expenses, assets immovable and movable have been mentioned in the charge-sheet and as per charge-sheet a case of disproportionate asset to the tune of Rs.3,15,28,101/- is made out. However, after modifying these figures prosecution has arrived at the figure for disproportionate assets as Rs.3,08,84,735/-.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 256 of 309537. Before proceeding further, it is important to lay down of criteria of determining the case of disproportionate assets and how it is arrived at. This aspect has been discussed in a number of cases and one of the landmark judgment in this regard is J.Jayalalitha (2017) (Supra) in which it has been laid down that total assets are to be arrived at by considering the immovable and movable assets which are possessed by public servant either in his name or as benami, including expenses incurred during check period and from this total assets, total income from lawful source is deducted. If the balance is more than 10% of the income from lawful sources then a case of disproportionate asset is made out. This criterion of more than 10% was laid down in judgment titled as Krishna Nand Agnihotri Vs. State of MP, (1977) 1 SCC 816.
538. It has been further held in J. Jayalalitha (Supra) that there are basically four board heads for scrutiny:
i. Income
ii. Expenditure
iii. Assets
iv. Conspiracy and Abetment
539. The income to be taken after amendment in the Prevention of Corruption Act, 1988 is that such income should be income from known and lawful sources. In this regard, Section 13 (1) (e) along with its explanation is laid down as under :
Section 13 Criminal misconduct by a public servant:-
(1) A public servant is said to commit the offence of criminal misconduct,-
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 257 of 309
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
540. With regard to income from lawful sources, in J. Jayalalitha (Supra) it has been laid down as under :
Explanation to Section 13(l)(e) makes it limpid that the known sources of income of the public servant, to satisfactorily account the pecuniary resources or the property otherwise alleged to be disproportionate thereto, has to be from a lawful source and further that the receipt thereof had been intimated in accordance with the provisions of any law, rule or orders for the time being applicable to him/ her, as the case may be. This prescription indubitably emphasizes the lawfulness or legitimacy of the income to enable the public servant to satisfactorily account a for the pecuniary resources or property otherwise imputed to be disproportionate thereto.
(Para 167) A significant addition to Section 13(l)(e), PC Act, 1988 otherwise reproduced from the 1947 Act is the Explanation appended thereto which exposits the expression "known CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 258 of 309
sources of income" to be the income received from any lawful source, the receipt whereof has been intimated in accordance with the provisions of any law, rules or orders for the time being, applicable to a public servant. Lawfulness or legitimacy of the known sources of income of the public servant, to satisfactorily account the pecuniary resources or property, alleged to be disproportionate thereto, is, thus the indispensable legislative edict. (Paras 161 and 162) The word "satisfactorily" levies a burden on the accused not only to offer a Q plausible explanation as to how he came by his large wealth but also to satisfy the court that the explanation was worthy of acceptance. Thus, the explanation offered by the accused to be acceptable has to be one not only plausible in nature and content but also worthy of acceptance. (Para 237) State of M.P v. Awadh Kishore Gupta, (2004) 1 SCC 691 : 2004 SCC (Cri) 353, has been relied upon in this case and it is held further:
While examining the purport of Section 5(3) of the 1947 Act which is in pari materia with Section 13(l)(e) of the 1988 Act] it has been held that the said provision does not create a new offence but only lays down a rule of evidence, enabling the court to raise a presumption of guilt in certain circumstances -- a rule which was in complete departure from the established principles of criminal jurisprudence that the burden always lay on the prosecution to prove all the ingredients of the offence charged and that the burden never shifted on to the accused to disprove the charge framed against him. "Known sources of e income"
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 259 of 309
must have reference to sources known to the prosecution on a thorough investigation of the case and it cannot be the resources known to the accused. The affairs of an accused person would be a matter within his special knowledge in terms of Section 106 of the Evidence Act and that the source of income of a particular individual would depend upon his position in life, with particular reference to its occupation or avocation in life and in case of government servant, f the prosecution would naturally infer that his known source of income would be the salary earned by him during his active service. However, it would be open to the accused to prove the other sources of income which have not been taken into account or brought into evidence by the prosecution. (Para 230) The spirit of the enactment has to be acknowledged as a relevant factor to construe an offence alleged to have been committed thereunder. Hence, while g construing the expressions "the public servant cannot satisfactorily account" and "known sources of income", which was construed to mean "sources known to the prosecution", the Supreme Court has held that the plea that unless the prosecution disproves all possible sources of income, a public servant charged for having disproportionate assets in his possession, which he cannot satisfactorily account, cannot be convicted under Section 5(1 )(e) of the 1947 Act, was erroneous. It was enunciated that the possible sources of income beyond those known to the prosecution were matters within the special knowledge of the public servant within the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 260 of 309
meaning of Section 106 of the Evidence Act, 1872. It was, however, recognised a that the burden of the accused was not so onerous as that of the prosecution and could be discharged by proof of balance of probabilities. (Para 233)
541. Proceeding further, the issue of benami transaction is of prime importance and core issue to be decided. Therefore, it is important to lay down the relevant law to be considered on the subject. In this regard, reference can be laid down on landmark case of J. Jayalalitha (Supra) in which it has been held that: -
" It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. The burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. h The essence of a benami is the intention of the party or parties concerned and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. However, such difficulties do not relieve the person asserting the transaction to be benami, of any part of the serious onus that rests on him nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 261 of 309
the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact and for determining this question, no absolute formula or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by the following circumstances:
(1) the source from which the purchase money came;
(2) the nature of possession of the property, after the purchase;
(3) motive, if any, for giving the transaction a benami colour;
(4)the position of the parties and the relationship, if any, between the claimant and the alleged benamidar (5)the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale.
The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Thus, there has to be either some direct evidence or strong circumstantial evidence to raise an inference that the property alleged to be benami had been purchased with the funds/resources of someone other than the person in whose name the property is shown in the document.(Para 252) In the present case, there is also a charge of conspiracy and abetment and, therefore, the factors as above would have to be tested on the anvil of the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 262 of 309overall e circumstances to ascertain as to whether a reasonable inference therefrom can be drawn of a benami transaction as alleged. This is more so as by the very nature of the offence of conspiracy, the activities in connection therewith are expectedly hatched in secrecy. (Para 253) Similar are the observation given in State of MP Vs. Shambu Dayal Nagar, (2006) 8 SCC 693, wherein it has been held that The required orientation of a court vis-à-vis offences under the Act, corruption in a civilised society is a disease like cancer, which if not detected in time is sure to afflict the polity of the country leading to disastrous consequences. Corruption is like a plague which is not only contagious but if not controlled spreads like fire in a jungle. Corruption is opposed to democracy and social order, being not only anti people but aimed and targeted against them. It affects e the economy and destroys the cultural heritage and therefore, unless it is nipped in the bud at the earliest, it is likely to cause turbulence, shaking the socio- economic-political system in an otherwise healthy, wealthy, effective and vibrating society.(Para 181)
542. It is important to mention here that in J. Jayalalitha (Supra) it has been held that:
"Scheme of PC Act is to ensure stricter legislation to eradicate corruption a The Preamble of the PC Act, 1947 manifests that it is a legislation with the objective of enhanced effective prevention of bribery and corruption. Its Statement of Objects CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 263 of 309
and Reasons demonstrates, it was impelled by the felt necessity for curbing bribery and corruption of public servants which noticeably had enormously increased by the war conditions, lingering at that point of time. The post-war fallouts bearing on large amounts of government surplus stores and b related disbursement of large sums of government money, visibly facilitated wide scope for corrupt practices, which necessitated immediate and drastic initiatives to stamp out the said malady. As the existing law proved to be inadequate to tackle the sprawling menace, the legislation was enacted.
(Para 152) The 1947 Act was succeeded by a new version of anti-corruption law in the form of the Prevention of Corruption Act, 1988, which seeks to consolidate and c amend the law relating to the prevention of corruption and for matters connected therewith. The statute, as the prefatory introduction thereof authenticates, retraced the evolution of the law regarding the offence of bribery and corruption amongst public servant, starting from the Penal Code to the 1947 Act seeking to respond to the exigencies of time, precipitated by the post-World War II manifestations. Having felt that even the 1947 Act had proved to be inadequate to deal with the d offence of corruption effectively warranting a result-oriented legislation, the 1988 Act was ushered in amongst other by widening their coverage and re-enforcing the provisions thereof. The Bill as a precursor of the 1988 Act was introduced in Parliament with these objectives. (Para 156) CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 264 of 309
The scheme of the 1988 Act, thus ensures a stricter legislation to combat and eradicate corruption in public life and takes within its sweep, not only the public e servants but also those who abet and conspire with them in the commission of offences, enumerated therein. The avowed objectives of the statute prompted by the compelling exigencies of time and the revealing contemporary realities, thus demand of a befitting curial approach to effectuate the same sans qua the rule of benefit of doubt on intangible and trivial omissions and deficiencies. (Para 166) The Statement of Objects and Reasons of PC Act, 1988, while reiterating the above mission, referred to the provisions in Chapter IX of the Penal Code, dealing with public servants and those who abet the offences mentioned therein, by way of criminal misconduct. The provisions in the Criminal Law Amendment Ordinance, 1944 enabling attachment of ill-gotten wealth, obtained through corrupt means, g was also adverted to. The Bill was clearly contemplated to incorporate all these provisions with necessary modifications, so as to make those more effective in combating corruption amongst public servants. With that end in view, the ambit of "public servant" was sought to be expanded. Additionally, the offences hitherto enumerated in Sections 161 to 165-A IPC were recommended to be incorporated in the legislation with enhanced penalties. Finality of the order of the trial court h upholding the grant of sanction for prosecution and provision for day-to-day trial of cases were also integrated as few other unique features of the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 265 of 309
initiative. (Para 157)
543. In the light of above discussion, the evidence led by prosecution with regard to benami transaction and holding of the property either by himself, by C. S. Khairwal (A-1) or through some other persons i.e. Sunil Khairwal (A-2), his family members or other relatives and friends is perused.
544. A lot has been discussed in above mentioned paras, however, all these submissions and findings are reiterated and mentioned in following paras. Immovable assets are taken up first prior to other heads. The first property i.e., plot No. 25, Devi Charanjeev Colony which is in the name of C. S. Khairwal (A-1) and property situated at 5 Biswa, at T-13, Malviya Nagar which again is in the name of C. S. Khairwal (A-1) are not disputed but admitted by C. S. Khairwal (A-1). Value of these properties is Rs.4,155/- and Rs.2,30,000/-.
545. It is alleged that Sunil Khairwal (A-2), Birbal Khairwal have been residing with C. S. Khairwal (A-1) and are shown as dependent upon him and it has been further alleged that Birbal Khairwal who is from Mau Ibrahimpur Rajasthan was not a man of enough means but was a poor person who used to rear sheeps and goats. It is alleged that he was not having enough land holding in his name, therefore, there was no agricultural income derived by him. Hence, he being a poor person was not in a position to amass such a huge wealth by himself but could only possible if all these properties were financed and sourced by C. S. Khairwal (A-1) CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 266 of 309from his ill gotten money or income from unlawful sources.
546. Similarly, Sunil Khairwal (A-2) is stated to be dependent upon him during the entire check period. Similar allegation have been raised regarding Anu Khairwal W/o C. S. Khairwal, Manju Khairwal D/o C. S. Khairwal. Besides this K.C.Sharma (A-3) (since deceased) is also said to have been holding the benami properties on behalf of C. S. Khairwal (A-1). It is important to mention here that it could be presumed that C. S. Khairwal (A-1) being father and Sunil Khairwal (A-2) being son, were living as family including Anu Khairwal being wife of C. S. Khairwal (A-1), however, there has been no evidence led by prosecution that Birbal Khairwal was dependent on C. S. Khairwal (A-1).
547. Prosecution has made an effort to prove the economic status of Birbal Khairwal alleging that he was a poor person, however, all the prosecution witnesses so examined have not supported the story of prosecution. It has been discussed above that Birbal Khairwal was not a poor person. In this regard, the witness examined by prosecution are PW-6, PW-7, PW-8, PW-13, PW-38, PW-68, PW- 69, PW-70, PW-76, PW-85, PW-86, PW-107, PW-118, PW-46, PW- 80, PW-81, PW-92 and PW-135. All these witnesses have stated contrary to the allegation that Birbal Khairwal was a poor person and was not a man of means. On the contrary, Birbal Khairwal is shown to have lands at Rajasthan. He is also known to have cattle and goats and used to do farming and was having income from agriculture as well. These witnesses have also indicated that Birbal Khairwal was having seven shops at Mau Rajasthan with regard to CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 267 of 309which Will in question is disputed by prosecution.
548. One of the independent witness is PW-107 Pooranmal Sharma who is stated to have known C. S. Khairwal (A-1) and his family members has stated that Birbal Khairwal was having seven shops at Mau Rajasthan and some agricultural land as well. It is important to mention here that none of these witnesses have stated that Birbal Khairwal was dependent upon C. S. Khairwal (A-1) or it was C. S. Khairwal (A-1) who used to provide money to Birbal Khairwal for his living or C. S. Khairwal (A-1) had given money to Birbal Khairwal to purchase the properties as alleged. In these circumstances, therefore, it cannot be concluded that Birbal Khairwal was a poor person and not a man of means and wealth or he was not having any agricultural land or agricultural income in his name.
549. From the perusal of the other evidence led by prosecution it is reflected that Birbal Khairwal used to pay wealth tax and used to file his return as well as was also having bank account. It has also been reflected from the testimonies of witnesses that Birbal Khairwal had taken a loan of Rs. 1 Lakh as reflected from D-24 which was used by him for purchase of property i.e., DDA Flat No. 34, Gautam Apartment, New Delhi. There is no contrary evidence disputing this fact of loan taken by Birbal Khairwal for this purpose. All these facts reflect and I am of the considered opinion that, Birbal Khairwal was having sufficient earning as well as having good economic status. He was having agricultural land in his name at Rajasthan. He was also having bank account having CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 268 of 309sufficient income deposited therein. He had also taken loan of Rs.1 Lakh and had also paid 5 installments by his name for property No. 22 i.e., DDA Flat No. 34, Gautam Apartment, New Delhi. C. S. Khairwal (A-1) has also placed on record documents pertaining to wealth tax deposited by Birbal Khairwal which form part of D-24. This document is again not disputed or controverted by prosecution. Therefore, the allegation raised by prosecution that Birbal Khairwal was a poor person and was depended upon C. S. Khairwal (A-1) do not found support from the evidence and the document filed along with the charge-sheet.
550. With regard to economic status of Manju Khairwal, daughter of C. S. Khairwal (A-1) it is reflected from the record that she is the married daughter of C. S. Khairwal (A-1). As per allegation made in the charge-sheet Manju Khairwal is stated to be minor on the date of allotment of this flat in September, 1990. C. S. Khairwal (A-1) has examined one witness D1W10 stating that the date of birth of Manju Khairwal is 12.01.1972 and not 20.12.1972. This fact has not been controverted by the prosecution. Further, prosecution has not brought on record any document to show that date of birth of Manju Khairwal was 20.12.1972 and not 12.01.1972.
551. It is also reflected from the perusal of the record that as per D-
289 and stated by PW-19 that Manju Khairwal had taken loan for purchase of the flat. It is also important to mention here that from the perusal of the entire allegation and evidence led by prosecution as well as documents placed in support there with, nothing with CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 269 of 309regard to status of Manju Khairwal not being sufficient enough to purchase this property has been reflected. In other words, economic status of Manju Khairwal not being sufficient has not been established by the prosecution at all. Loan taken by Manju Khairwal, as stated above is also not controverted.
552. It is also important to mention there that most important aspect of establishing the plea of benami transaction is that the prosecution has to establish that accused had financed such funds in converting the same into the property movable and immovable in the name of the person concerned. Prosecution has not led any evidence in order to discharge the burden of proving this fact that it was C. S. Khairwal (A-1) who was instrumental in funding all the money in purchase of the property in question. Therefore, in these circumstances, I am of the considered opinion that prosecution has not been able to establish that Manju Khairwal was financed by C. S. Khairwal (A-1) and it was C. S. Khairwal (A-1) in actual, behind the curtain, who had funded all the money in purchasing the property in question.
553. With regard to K.C.Sharma (A-3) (since deceased) it has already been mentioned above that proceedings stands abated against him and no observation explaining his role which could indicate his involvement in the present case, can be made as per law. Moreso, there is no evidence available on record by which it could be concluded that all the expenses incurred by K.C.Sharma (A-3) (since deceased) as alleged in the present case were actually funded by C.S.Khairwal (A-1) as his benami property.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 270 of 309554. Now, coming to the role of Sunil Khairwal (A-2), the son and Anu Khairwal, the wife of C. S. Khairwal (A-1), it is important to mention here that wife has to live with her husband unless and until she is divorced or shown to have been living separately. Presumption of law is in favour of mutual cohabitation of husband and wife unless and until contrary is proved. Similarly, son is also presumed to have been dependent and living with his father till he attains majority and keeping in mind the family structure of Indian society, the presumption is that son even after majority and getting married, continues to live with his father as a single family unit unless and until evidence that son is living separately or is earning by himself sufficient for him is brought on record.
555. The burden of proving the fact that son is not dependent and is living separately from his father and wife who is not divorced or living separately or is not the liability of husband to maintain, is on the accused persons. Accused persons have not been able to bring on record any evidence to the contrary that Anu Khairwal and Sunil Khairwal were not living with C. S. Khairwal (A-1) but living separately. In other words, the presumption that C. S. Khairwal (A-
1), Anu Khairwal and Sunil Khairwal are living together as a family has not been controverted by accused persons specifically. In this regard, the presumption laid down under Section 106 of the Indian Evidence Act is applicable in the present facts and circumstances which reads as under :-
106. Burden of proving fact especially within knowledge. -- When any fact is especially within CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 271 of 309
the knowledge of any person, the burden of proving that fact is upon him. Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him.
556. Ld. counsel for A-1 has relied upon certain judgment in support of his contention which are as under : -
i. Anil Kataria Vs. State, 2018 DHC 55-DB ii. Satye Singh Vs. State of Uttrakhand, 2022 (1) ARC 935 iii. Tata Power Delhi Distribution Limited vs. Amit Bansal:
AMNU/DE/2835/2024 iv. Shambhu Nath Mehra Vs. The State of Ajmer : AIR 1956 SC 404
557. Reference can be laid upon other landmark judgments on the subject as well in which it has been held that burden of proving the fact is always upon the person who alleges it. Some of these judgments are : -
(i) Dilip Mallick Vs. State of West Bengal MANU SC 1582017.
In this case, the appellant took the cycle of deceased Shambhu Mallick and carried him on the cycle. As the deceased did not return home, PW-3 started searching for him in the evening. She went to the house of the appellant and was informed by the appellant's father that her husband and appellant went to clean a safety tank. The deceased did not return home that night. He was found on 04.02.2004 near Chandmuni Tea Estate Area. It is further observed that "Under Section 313 Cr.PC the accused CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 272 of 309denied any knowledge of the crime and alleged false implication. Section 106 of the Indian Evidence Act imposes an obligation on the accused to explain as to what happened after they were last seen together. No explanation was furnished, therefore, conviction was upheld.
(ii) "Virender Vs. State" MANU DE 11072015.
"In this case, it has been held that if a person is last seen with the deceased, he must offer his explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so, he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of Indian Evidence Act. In case, resting on circumstantial evidence if accused fails to offer a reasonable explanation, that itself provides an additional link in the chain of circumstances proved against him and the court can consider his failure to adduce any explanation, as an additional link which completes the chain."
558. From the careful perusal of the above cited judgments on Section 106 of the Indian Evidence Act as well as keeping in mind the facts of the present case which are under discussion, it would therefore be correct if the burden of proving the fact, that Sunil Khairwal (A-2) and Anu Khairwal or Manju Khairwal are not dependent upon C. S. Khairwal (A-1), is upon A-1. A-1 has not led any evidence to prove this fact. Therefore, it cannot be presumed from the facts of the case that Sunil Khairwal (A-2) and Anu Khairwal were not depended on C. S. Khairwal (A-1) or they were living separately and independently.
559. It is a matter of record that Anu Khairwal, who is wife of C. S. Khairwal (A-1) is not a working lady but a house wife. Thus, Anu Khairwal is considered as completely dependent upon C. S. Khairwal (A-1) for all her day to day expenses and maintenance as CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 273 of 309well as purchase of movable and immovable property. It is also important to mention here that Sunil Khairwal (A-2) in this regard, has to show that though he was not living separately from his father but was having his own independent source of earning and economic status and was having sufficient means to purchase the properties as alleged.
560. With regard to Sunil Khairwal (A-2), however, a lot is being reflected from evidence led by prosecution that he was having his own income. In this regard, as per list of immovable property which are 25 in number as per charge-sheet, however, property no. 4 i.e., land at Village Kyarda Khurd Hindon, 1/10th part of property No. 11 i.e. E-286, GK- I, Delhi, property No. 12 i.e. land at Mau Ibrahimpur, property no. 15, plot at village Kishangarh, Vasant Kunj, New Delhi in the name of ABSU MANSU whose one of the proprietor/partner is Sunil Khairwal, property No. 18 Flat No. 2298, Vasant Kunj which is however purchased as well as sold within check period itself and farmhouse at Village Asola Chattarpur which is stated to be in the name of MMG Agro, are stated to be linked with Sunil Khairwal (A-2) being benami property of C. S. Khairwal (A-1).
561. With regard to property No. 4 mentioned that page No. 15 of the charge-sheet, it is stated to be in the name of Sunil Khairwal (A-2) and is purchased for a sum of Rs.1,65,000/-. Witnesses PW- 83 Hoti Lal and PW-93 Sushil Kumar Vijay have been examined by the prosecution. These witnesses have not stated anything that the payment was made by C. S. Khairwal (A-1). They have expressed CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 274 of 309their ignorance in this regard. Now, it is upon the prosecution to establish the fact that it was C. S. Khairwal (A-1) who had paid the sale consideration. Sunil Khairwal (A-2) is stated to be 23 years old on the date of purchase of this property No. 4. With regard to property No. 5, however, it is in the name of Anu Khairwal, W/o C. S. Khairwal (A-1) having purchased the same on 15.02.1993 for a sum of Rs. 1,65,000/-. Both Sunil Khairwal (A-2) and Anu Khairwal have placed on record their ITRs showing that they have been paying income tax and filing their returns.
562. The issue of filing income tax return and its relevance in disproportionate assets cases is taken up before proceeding further. Ld. counsel for accused persons have placed on record many judgments in support of their contentions alleging that income tax return filed much prior to the date of registration of FIR has to be genuine and not manipulated. Hence, due credit of the same should be given to accused. These judgments are :
i. M. Krishna Reddy Vs. State of Deputy Superintendent of Police, Hyderabad : AIR 1993 SC 313 ii. P. Satyanarayan Murti Vs. State of Andhra Pradesh, 1992 4 SCC 39 iii. DSP Chennai Vs. K. Inbasgaran, 2006 (1) ACR 2010 (SC)
563. Reference however, can be laid upon the landmark judgment of J.Jayalalitha (Supra) wherein it has been held that: -
"where there is unexplained cash credit, it was open to the Income Tax Officer to hold that it is the income of the asses see and no further burden lies on the Income Tax Officer to show that that income is from any particular source and that it is CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 275 of 309
for the assessee to prove that even if the cash credit represented income, it is an income from a source which had already been taxed..... (Para
187) Though the IT returns and the orders passed in the IT proceedings in the instant case recorded the income of the accused concerned as disclosed in their returns, in view of the charge levelled against them, such returns and the orders in the IT proceedings would not by themselves establish that such income had been from lawful source as contemplated in the Explanation to Section 13(l)
(e) of the PC Act, 1988 and that independent evidence would be required to account for the same........... (Para 190) Property in the name of the income tax asses see itself cannot be a ground to hold that it actually belongs to such an assessee and if this proposition is accepted, it would lead to disastrous consequences. In such an eventuality it will give opportunities to the corrupt public servant to amass property in the name of known person, pay income tax on their behalf and then be out from the mischief of law........... (Para 196) Submission of income tax returns and the assessments orders passed thereon, would not constitute a foolproof defence against a charge of acquisition of assets disproportionate to the known lawful sources of income as contemplated under the PC Act and further scrutiny/analysis thereof is imperative to determine as to whether the offence as contemplated by the PC Act is made out or not............ (Para 201) In order to invoke the rule of issue estoppel not only the parties in the two proceedings must be the same but also the fact-in-issue proved or not in the earlier proceeding must be identical with what is sought to be re-agitated in the subsequent one............ (Para 227) This proposition has been relied upon by the prosecution in the present case to reinforce its plea that in any view of the matter, it not being a party to the tax assessment proceedings, at any level, the decision passed therein would not be of binding bearing at the trial by invoking the rule of issue estoppel. (Para 228) There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.Page No. 276 of 309
other as both the cases have to be decided on the basis of the evidence adduced therein............ (Paras 192 and 229)
564. Thus, from the careful perusal of the above mentioned directions given in J. Jayalalitha's case (supra). It is important to mention here that mere filing of income tax return are not conclusive proof as to whether assets or income concerned are from lawful sources as contemplated under Section 13 (1) (e) PC Act. Prosecution, in this regard has relied upon one judgment titled as "State of Bihar Vs. Lalu Prasad", 2008 CRI.L.J.2433 wherein it is held that, "findings of ITAT are not binding upon criminal Court and such findings cannot be held to be conclusive on ground that returns were filed much earlier than FIR..". Hence, I am of the opinion that ITAT filing of ITR is no conclusive proof.
565. So far as property No.5 is concerned, I am of the opinion that Anu Khairwal, who was not having her own independent source of earning cannot be considered to be the actual owner of property No. 5, therefore, the presumption that she is holding this property as benami holder of C. S. Khairwal (A-1) has to be considered in these circumstances. Now, it is upon C. S. Khairwal (A-1) to disprove the same or to show to the contrary.
566. With regard to property No. 4, the economic status of Sunil Khairwal (A-2) has to be considered. It is important to mention here that none of the prosecution witnesses so examined has stated anything that the payment qua purchase of property was made by CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 277 of 309C. S. Khairwal (A-1). Most of the witnesses on this aspect have turned hostile which is a matter of record.
567. It is needless to say that one of the important aspect of considering the property as benami property of one person is that such person should be having possession thereof and he/she should have being instrumental in making payment. As per allegations made in the charge-sheet against Sunil Khairwal (A-2) it is alleged that Sunil Khairwal (A-2) is proprietor/partner in MMG Agro, MANSU ABSU and certain chit fund company these facts have neither been disputed nor controverted by Sunil Khairwal (A-2) and Sunil Khairwal (A-2) has preferred to remain silent on most of the aspect. Sunil Khairwal (A-2) has been claiming the properties and expenses which are attributed to him that they have been made by him whereas prosecution has alleged that though all these expenses were made by Sunil Khairwal (A-2) but they were financed by C. S. Khairwal (A-1). Sunil Khairwal (A-2) has placed on record his ITRs as well as has claimed that he has been receiving rental income as well. These ITRs however has not been controverted by the prosecution. Therefore, from the filing of these ITRs, as they have not been controverted, one can be considered that Sunil Khairwal (A-2) was having income in his hand. It has been considered that Sunil Khairwal (A-2) was living as family with C. S. Khairwal (A-1). However, Sunil Khairwal (A-
2) has stated that he has his own source of income.
568. Now, the first onus upon the prosecution is to show and establish that all his source of income as claimed by him were CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 278 of 309actually financed by C. S. Khairwal (A-1). There is no evidence led by prosecution to this effect nor prosecution has brought on record any document in this regard.
569. With regard to 1/10th part of property No. 11 which is in the name of Sunil Khairwal (A-2), it is needless to say that only registered value of the property has to be considered in the light of CBI circular exhibited as PW143/DA. Prosecution has not brought on record any evidence to the effect that the entire payment for purchase of this property No. E-286, GK- I, New Delhi was made as Rs. 63 Lakhs which is much above the registered value as mentioned in the document.
570. In the absence of any evidence to the contrary therefore the only value relevant for this purpose is the registered value of the property. With regard to other 9/10 th part of the property it is important to mention here that there is no evidence led by the prosecution to the effect that all such persons, besides Sunil Khairwal were benami holder of C. S. Khairwal (A-1) and it was C. S. Khairwal (A-1) who had financed the sale consideration by himself.
571. Now coming to the other aspect of payment of 1/10th part of sale consideration of property No. 11, which is admittedly in the name of Sunil Khairwal (A-2), it is important to mention here that the aspect of Sunil Khairwal (A-2) being totally dependent upon C. S. Khairwal (A-1) or having his source of earning has to be considered. The date of purchase as per record is shown as CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 279 of 30913.01.1993. Sunil Khairwal (A-2) was 23 years old at that time. It is shown by Sunil Khairwal (A-2) that he was an income tax assesse and paying income tax record of which is filed by D2W1 who is Raghubir Singh and D2W2 who is Sandeep Pal. These witnesses have shown that Sunil Khairwal (A-2) was having his financial status as he was paying income tax vide ITRs for financial years 1992-93, 1993-94 and 1994-95.
572. Sunil Khairwal has also shown from the record by preponderance of probabilities by placing on record that he was having rental income as well. In these circumstances, the possibilities that Sunil Khairwal (A-2) was not entirely dependent on his father though living along with his father as family, cannot be ruled out. Now, it is incumbent upon the prosecution to establish this fact that Sunil Khairwal (A-2) was totally dependent upon his father and his father C.S. Khairwal (A-1) had paid sale consideration for property No. 11 i.e. E-286, GK-I, New Delhi.
573. From the perusal of the entire judicial record, it is reflected that prosecution has not been able to discharge the burden of proving this fact. This fact is further strengthened from the submission that neither C. S. Khairwal (A-1) is shown to having possession nor title deeds are recovered from him.
574. In this regard, Jaya Dayal Poddar (Supra), can be referred here again by reproducing the relevant para laying down the criteria to determine the aspect of benami transaction. It has been held that :-
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 280 of 309'Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid tests, uniformally :applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances :
(1) the source from which the purchase money came;
(2) the nature and possession of the property, after the purchase;
(3) motive, if any, for giving the transaction a benami color;
(4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar;
(5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.
575. One of the most important aspect to establish the fact that a person is holding benami property in the name of other person is, as already stated above, that court has to see the source from which the purchase money came. It is needless to say The burden of proving this fact is primarily upon prosecution. Prosecution, however, in my considered opinion has failed to discharge the burden of proving this fact. There is no evidence available on record by which it could be considered that C. S. Khairwal (A-1) was instrumental in payment of sale consideration. Prosecution has also not been able to establish the fact that Sunil Khairwal (A-2) was not having his own source of income but was dependent upon C. S. Khairwal (A-1). On the contrary, Sunil Khairwal (A-2) has shown from the record that he was having his financial status as he used to pay income tax which is shown by D2W1 and D2W2.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 281 of 309576. Further, this property has not been shown to be in the possession of C. S. Khairwal (A-1) or the title deeds thereof are not shown to have been recovered from his possession after sale. Therefore, in my considered opinion, it cannot be presumed from mere submissions or allegation made in the charge-sheet that Sunil Khairwal (A-2) was holding 1/10th part of property No. 11 as benami holder for C. S. Khairwal (A-1).
577. With regard to property No. 2 mentioned at page No. 15 of the charge-sheet, the allegation are that this property was purchased by Birbal Khairwal who was not having any sufficient source of income but a poor person and later on he by virtue of Will, bequeathed this property to Sunil Khairwal (A-2). With regard to status of Birbal Khairwal being poor person as per allegation, it has been discussed at length in above mentioned paras that prosecution has not been able to establish this fact that Birbal Khairwal was not having sufficient means or he was totally dependent on C. S. Khairwal (A-1). Prosecution witnesses who are examined to this extent have not supported the story of prosecution.
578. Moreso, there is no evidence brought by prosecution on record that C. S. Khairwal (A-1) had financed this property and the sale consideration was paid by him. It is needless to say that on the day of purchase of property Sunil Khairwal (A-2) was mere 15 years old. There is no evidence with regard to Will in question, alleged to be forged and fabricated document. It is further alleged that C. S. Khairwal (A-1) purchased this property in the name of his father and then got it transferred to his son Sunil Khairwal (A-2) by way CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 282 of 309of Will executed by his father. Father of C. S. Khairwal (A-1) is stated to have expired in the year 1987. Thus, most important connecting piece of evidence in this regard that the sale consideration was financed by C. S. Khairwal (A-1) is missing as there is no evidence led by prosecution in this regard.
579. Similarly, with regard to property no. 3 mentioned at page No. 15 of the charge-sheet it is alleged to have been constructed in two parts. Relevant witness examined in this regard is PW-106 Naveen Kumar Jain. It has been observed in above mentioned paras that the valuation of the construction done by Naveen Kumar Jain is not appropriate as he has not mentioned the uniform acceptable criteria for assessment of value of construction. Moreso, it is reflected that the assessment seems to have done on the current market value and no benefit of the actual date of purchase seems to have been given in his report.
580. Other witnesses examined by prosecution are PW-66 and PW-
9 as well as PW-11. Further, they have not thrown any light on this aspect. PW-9 has not supported the story of prosecution at all as he has turned hostile. Statement of PW-66 is also of not much help to the story of prosecution. Therefore, I am of the considered opinion that property No. 2 and 3, in the absence of any evidence to the contrary, cannot be linked with C. S. Khairwal (A-1).
581. With regard to property no. 12 i.e. the land situated at Mau Ibrahimpur which is stated to be in the name of Sunil Khairwal (A-
2), there is no witness examined by the prosecution in this regard CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 283 of 309and the relevant document i.e. sale deed of this property is only marked as Mark PW143/V-68 (D-305). Only PW-143 who is IO of the case has made oral averments in this regard. Thus, in the absence of any relevant witness or not placing on record the title deeds or on the basis of mere oral averment of IO, this fact cannot be said to be established by the prosecution that this property is benami property of C. S. Khairwal (A-1).
582. With regard to property No. 18 mentioned at page No. 18 of the charge-sheet, it has already been stated above that this property is alleged to have been purchased by Sunil Khairwal (A-2) on 21.08.1994, however, it is shown as having been sold to Sudesh Seth on 01.12.1995. Therefore, it is purchased as well as sold during check period itself. No benefit of sale consideration as income has been given to Sunil Khairwal (A-2). If its purchase is considered then sale thereof should also be considered in the eyes of law prosecution has not shown any document regarding sale of this property.
583. It can be presumed in these circumstances that this property cannot fetch the sale proceed, lesser than its purchase value unless and until it is shown specifically. In these circumstances, in my considered opinion, if the value of this property is considered as expense on the one hand then the similar value has to be considered as income of Sunil Khairwal (A-2). PW-64 S. P. Gupta has stated nothing with regard to payment for purchase of this property to be made by C. S. Khairwal (A-1). In these circumstances, in my considered opinion this property No. 18 cannot be said to be CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 284 of 309linked with C. S. Khairwal (A-1) as his benami property.
584. With regard to property No. 20 mentioned at page No. 18 of the charge-sheet, prosecution has examined PW-14 Ajay Sharma and PW-54 Indu Malkani. These witnesses have turned hostile and have not supported the story of prosecution. PW-33 however has stated that one of the proprietor of MMG Agro was Sunil Khairwal (A-2).
585. Other witnesses examined by prosecution are PW-43 Prakash Chand, PW-49 Jawaharlal and PW-87 Rajender Sehgal have not stated anything that payment was made by C. S. Khairwal (A-1). Another important aspect which has to be considered in the light of CBI Circular dated 28.11.2001 exhibited as Ex.PW143/DA, is that only registered value of the property should be taken in such cases. As per title deeds the consideration is mentioned as Rs.4,90,000/- whereas the charge-sheet has assigned its market value as Rs.49 Lakhs which is attributed to C. S. Khairwal (A-1).
586. With regard to valuation of boundary wall of this property, report of PW-106 exhibited as Ex.PW106/3 (D-308) is filed on record, however, it has been observed on various occasion that report of PW-106 Naveen Kumar Jain does not seems to be appropriate and reasonable. Therefore, in the absence of any cogent evidence led by prosecution stating that this property was possessed by C. S. Khairwal (A-1) or its title deeds were recovered from his possession or he had financed this property not only in its purchase but in alleged construction of boundary wall as well, in CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 285 of 309my considered opinion, it cannot be considered as benami property of C. S. Khairwal (A-1). The aspect of PW-14 and PW-54 turning hostile cannot be ignored.
587. From the list of immovable properties mentioned in the charge-sheet some of the properties bearing Sr. No. 22 and 23 are said to be in the name of Kampoori Devi, sister of C. S. Khairwal (A-1) and Sunita Khairwal, daughter of C. S. Khairwal (A-1). With regard to Kampoori Devi she is stated to be married and having her family living separately from C. S. Khairwal (A-1). Roop Ram was the husband of Kampoori Devi who is stated to be selling bangles by roaming in villages and later on appointed as Chowkidar in Public Health Engineering Department at Bharatpur, Rajasthan and after his death in 1993, Smt. Kampoori Devi is stated to have been appointed as a daily wager on compassionate ground.
588. From the perusal of the entire record economic status of Kampoori Devi is not filed on record showing that she or her husband were not having sufficient economic status but poor person and C. S. Khairwal (A-1) used to help them by providing money to their family. Prosecution has examined PW-30, PW-29, PW-141, PW-140 and PW-73. PW-73 has turned hostile as stated above and has not supported the story of prosecution. PW-30, who is stated to be current office bearer of RWA, was not holding office at that time of purchase of the property. It has been discussed in detail in above mentioned paras that Birbal Khairwal had paid most of the installments with regard to his property and later on had CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 286 of 309transferred this property to Kampoori Devi who is sister of C. S. Khairwal (A-1).
589. Other witnesses as mentioned above, examined by prosecution have not stated anything with regard to payment of any of the installment for purchase of this property, by C. S. Khairwal (A-1). No document or testimony of any person who has seen C. S. Khairwal (A-1) paying the money, has been examined or brought on record. Thus, in the absence of any evidence to the contrary this property again cannot be linked with C. S. Khairwal (A-1). Moreso, this property is stated to be leased out to Abha Tyagi who was residing as tenant in the said property. All the furniture fittings and other articles found from this property during search are not attributed to C. S. Khairwal (A-1) as none of the witness has stated anything in this regard. One garage was also found attached with this flat in which one beauty parlour was found to be running by one Santosh Sharma being tenant. She has also not been examined by the prosecution.
590. Moreso, it is reflected from the record that a case of illicit liquor and evasion of tax was instituted against C. S. Khairwal (A-
1) and Abha Tyagi in which C. S. Khairwal (A-1) was found to be having no role and in the concerned excise case against Abha Tyagi as she has claimed all the liquor belonging to her being having possession of the flat as tenant, she was held guilty. From the proceedings conducted before Income Tax Authority regarding articles recovered from this flat at Gautam Apartment, the findings of ITAT and CIT which are discussed above at length also do not CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 287 of 309reflect any role of C. S. Khairwal (A-1). Therefore, in my considered opinion, this property, like other properties as mentioned above, cannot be said to be linked to C. S. Khairwal (A-1). Order of ITAT & CIT cannot be ignored, hence it can be relevant in absence of any evidence to the contrary.
591. Other properties mentioned at page No. 15 to 19 of the charge-sheet, besides discussed in above mentioned paras, are also taken up. At the outset it has been mentioned in above mentioned paras that in order to establish the plea of benami properties 6 points are required to be considered as laid down in Jaya Dayal Poddar (Supra). Most important aspect to be considered in this regard as already stated above is that the accused who is said to be the benami holder should be having the possession of the property and the title deeds thereof should be found from his possession.
592. Another important aspect to be established by prosecution is that prosecution must show that such accused has financed the purchase of the property. With this background, all other immovable properties are discussed as under :-
593. Property No. 1 is admitted by C. S. Khairwal (A-1) as belonging to him. Property Nos. 2, 3, 4, 5 and 6 have been discussed in above mentioned paras. With regard to property No. 6 mentioned at page No.16 of charge-sheet it is reflected from the sale deed itself that the tube well, compound wall and other fixtures for property No. 4 and 5 were already situated there at the time of its purchase as mentioned in the sale deed itself. This fact CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 288 of 309qua sale deed of property No. 4 and 5 cannot be ignored. Thus, property No. 6 cannot be linked with C. S. Khairwal (A-1) at all.
594. With regard to property No. 7 i.e. 5 shops at Mau Khas, one Will of Birbal Khairwal is questioned. Economic status of Birbal Khairwal has already been discussed above for which prosecution has not been able to establish that Birbal Khairwal was not having sufficient means to purchase any such properties. This Will, though questioned by prosecution, but, no witness has been examined in this regard to show that the said Will was forged and fabricated.
595. With regard to property No. 8 which is samadhi of Birbal Khairwal, there is no evidence led by prosecution to show that the said amount of Rs.1,32,682/- was spent on construction thereof. With regard to property no. 9, PW-86 who was examined by prosecution has turned hostile and has not supported the version of prosecution. It is stated to be in the name of Shiboo Ram, however, economic status of Shiboo Ram has not been investigated by the IO that he was not a man of means and was not having sufficient funds to purchase this property.
596. It is needless to say that mere averments are not sufficient.
They should be supported with evidence. Property no. 10 is admitted by C. S. Khairwal (A-1). Property No. 11 has been considered in part. With regard to 9/10 th part of this property no. 11 the economic status of all such other persons who had purchased this property has not been investigated by prosecution. The other CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 289 of 309purchasers are K.C.Sharma (A-3) (since deceased), Tulsa Devi, Bhori Lal, Ms. Satish, Kampoori Devi, Hukum, Yashpal, Muktai Devi and Santra Devi.
597. With regard to Property No. 13 and 14 prosecution has examined PW-42, PW-106 and PW-140. PW-42 is the only witness regarding sale transaction who is relative of Brahm Kaur the previous owner of the property. This property was sold by Brahm Kaur to one Vinod Kumar Sharma and as per allegation it is sold to Sunil Khairwal (A-2). The purchaser Vinod Kumar Sharma has not been examined by prosecution. The most relevant and important witness to be examined by prosecution in this regard was Vinod Kumar Sharma, who could have certified as to who has made the payment. However, he has not been examined. Thus, just like other properties mentioned above, the prosecution is silent on the aspect of the payment being made by C. S. Khairwal (A-1) through Sunil Khairwal (A-2).
598. With regard to valuation, PW-106 and PW-140 have been examined. The report of PW-106, in my considered opinion, as stated above on many occasion, does not seem to be appropriate as he has not mentioned the assessment according to the date of purchase but seems to have been made on the basis of current market value as well as the criteria of the valuation of cost of construction according to acceptable norms of PWD has not been taken into account.
599. With regard to property No. 15, 16 and 17, PW-35 and PW-44 CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 290 of 309have turned hostile. Narayani Devi, W/o Birbal Khairwal is stated to have made GPA in favour of K.C.Sharma (A-3) (since deceased) on 08.02.1991. Narayani Devi however, expired on 09.06.1987. This fact however pertains to K.C.Sharma (A-3) (since deceased). There is one Will questioned by prosecution in this regard, however, no witness qua Will has been examined by the prosecution by which it could be considered as manipulated or forged. Assessment of the property i.e. property No. 17 done by PW-106 is already considered as not to be free from doubt.
600. Property Nos. 18, 19, 20, 21, 22 and 24 have already been discussed in above mentioned paras. With regard to property Nos. 23 and 25, it is reflected that prosecution has not examined any witness and the only testimony available on record is PW-143, who is the IO of the case.
601. One important aspect, which cannot be lost sight of, is that at the time of registration of FIR and raids were being conducted and properties were being seized/attached, a number of persons had filed their objections in the form of their respective claims supported with affidavit before the Ld. District Judge and at that time all those objections supported with affidavit of all such persons claiming the ownership of the properties seized/attached have also been filed by C. S. Khairwal (A-1) along with an application under Section 294 Cr. P.C and all such affidavits supported with the claims of respective persons have been relied upon by accused persons as their defence.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 291 of 309602. It is reflected from the record that prosecution has not filed anything on record controverting these documents filed along with the application under Section 294 Cr.P.C. These documents, though have not been admitted but once they are placed on record supported with duly sworn affidavits of such claimant, then this fact become relevant to be considered and all such facts cannot therefore be neglected or ruled out. It has been argued on behalf of accused persons that none of such persons, who had claimed all these properties, which are seized and attached by IO at that time, have been examined by IO, nor they have been brought into witness box to controvert their claim nor anything contrary to their claim has been investigated by the IO further nor any of the witness examined by prosecution has stated anything by which it could be considered that facts alleged in all such affidavits are controverted.
603. Filing of these affidavits which have been filed along with application under Section 294 Cr. P.C, has not been disputed by the prosecution. If these affidavits are presumed to be correct then there is nothing available on record by which they cannot be considered as relevant. These affidavits vide which various persons have claimed ownership of all such properties which have been seized and attached, raises a doubt regarding claim of the prosecution. This doubt can only be said to be cleared when material evidence led by prosecution is available on record. No such evidence however, is available on record contrary to all such claims in the form of affidavits. In these circumstances, only fact established by prosecution seems to be pertaining to property No. 5 i.e., land situated at Kyarda Khurd Hindon UP which is in the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 292 of 309name of Anu Khairwal, wife of C. S. Khairwal (A-1).
604. In the light of above discussion, it is important to mention here and I am of the considered opinion that if prosecution has not been able to establish the burden of proving the fact that all the immovable properties which are 25 in number except property No. 1 and 10, which is admitted by C. S. Khairwal (A-1) and property no. 5 which is in the name of Anu Khairwal wife of C. S. Khairwal (A-1), are not the benami property of C. S. Khairwal (A-1) then all the expenses in relation thereto cannot be attributed to A-1 or A-2.
605. At the time of framing of charge benefit of rental income has not been given either to Sunil Khairwal (A-2) or Manju Khairwal or Kampoori Devi. Once, plea of benami property is not established, as mentioned above, then in my considered opinion benefit of rental income, agricultural income should be given to Sunil Khairwal (A-2), Anu Khairwal and Manju Khairwal. Similarly, in my considered opinion as proceedings stands abated qua K.C.Sharma (A-3) (since deceased), therefore, his income which has been mentioned against his name in the charge-sheet should also be separated from the income of C. S. Khairwal (A-1). Similarly, income of Birbal Khairwal, Manju Khairwal and Sunil Khairwal should also be separated from the total income of C. S. Khairwal (A-1).
606. Now, coming to the head 'Expenses'. It is alleged that a total amount of Rs.17,19,583/- was incurred during check period by accused which is stated to have been incurred by C. S. Khairwal CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 293 of 309(A-1) and Sunil Khairwal (A-2). These expenses as mentioned in the charge-sheet were found to be a bit on the higher side hence, they have been slightly reduced by prosecution to Rs.15,96,867/-.
607. As per list provided at page no. 13 and 14 of charge-sheet, item No. 1, 2, 3, 4, 5, 6 and 7 are pertaining to expenses on registration of sale deed of the properties which are mentioned at page No. 15 to 19 of charge-sheet. Evidence pertaining to immovable properties mentioned at page No 15 to 19 of charge- sheet have been considered and discussed in above mentioned paras and reiterated in the final concluding paras as mentioned above in which it is reflected that prosecution has not been able to establish that these properties are linked with C.S. Khairwal (A-1) or C.S.Khairwal (A-1) was holding these properties or title deeds of these properties were recovered from his possession or he has financed the purchase of these properties.
608. Moreso, without keeping in mind the fact pertaining to immovable properties and their benami ownership, it is alleged that these expenses have been paid by C. S. Khairwal (A-1). From the entire perusal of the record and the documents filed along with the charge-sheet there is no evidence available on record by which it can be construed that all such amount has been paid by C. S. Khairwal (A-1) or any person had seen that payment was made by C.S.Khairwal(A-1) or there is any receipt in respect thereof. Thus, all these heads of expenses cannot be said to be attributed to C.S.Khairwal (A-1) as discussed in above paras.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 294 of 309609. With regard to item No. 9 and 10, it is not disputed by C.S.Khairwal (A-1) that he was not having the membership of these clubs. PW-41 has been examined with regard to item No. 9, who has proved the counterfoil of Rs.8,690/- exhibited as Ex.PW41/1.
610. With regard to item No. 10 there is no evidence available on record. Similarly, there is no evidence pertaining to item Nos. 11, 12, 16, 17, 18 , 21, 22 , 23, 24, 25, 26, 32, 34 and 35. With regard to item No. 34 it is pertaining to house tax of F-85, East of Kailash. This property is considered as not to be linked with C. S. Khairwal (A-1).
611. With regard to item No. 13, 33, 29 and 28, they are such expenses which in my considered opinion should be part of 1/3rd of carry home salary which is permissible limit as per circular of CBI exhibited as Ex.PW143/DA. How these items have been shown separately is not explained by the prosecution. Prosecution has also not explained as to whether all these expenses are apart from item No. 30 i.e. 1/3rd of carry home salary or inclusive of it.
612. With regard to item No. 31, 27, 20 and 19, prosecution has placed on record only the bills pertaining to item No. 19, however, it is the photocopy thereof and these bills are marked as Mark PW143/V-50. With regard to all other items alleged as expenses towards marriage, bill has not been placed on record. Concerned caterer has also not been made witness nor examined. Thus, these items cannot be said to be proved merely on the testimony of PW-
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 295 of 309
143.
613. With regard to item No.8, the only witness examined by prosecution is PW-143, no other witness from PNB has been called by prosecution. Similarly, with regard to item No. 11 of Expenses, prosecution has examined PW-33 B. S. Sethi from PNB. This witness sought to prove the account opening form pertaining to certain accounts in relation to Birbal Gifts Pvt. Ltd. and as per record the signature/handwriting of Sunil Khairwal (A-2) is found to be matched with the hand-writing on account opening form of account No SB 7004 to SB 7008.
614. It has been argued that mere filing up of account opening form by accused does not imply that he has been depositing money in the said account as well. These accounts were pertaining to Ram Swaroop and other persons. Only Ram Swaroop has been examined who has not supported the story of prosecution that money in the said account was deposited by Sunil Khairwal (A-2) or C. S. Khairwal (A-1). In the absence of any evidence to the contrary, therefore, it cannot be said to be established merely on the testimony of PW143 which is nothing but oral.
615. With regard to item No. 14, prosecution has examined PW-26 Santosh Kumar Sharma and PW-46 Atma Ram Singhal. PW-26 Santosh Kumar Sharma is VAT Inspector in Trade and Taxes Department in Government of NCT. In the year 1996, he was working as UDC in the Department of Industries, GNCT. One premise was sealed by CBI in his presence vide memo dated CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 296 of 30919.02.1996 (D-60) which exhibited as Ex.PW26/1.
616. This witness has not been cross examined by accused persons.
Nothing much is being reflected from the testimony of this witness. Next witness examined by prosecution is PW-46 who has stated that the flatted factory at Jhandewalan was in the name of Sunita Khairwal which was transferred in the name of Sunil Khairwal (A-
2) after her marriage.
617. It is important to mention here that in order to attribute all the expenses either to C. S. Khairwal (A-1) or Sunil Khairwal (A-2) prosecution should also establish the fact by way of evidence that it was C. S. Khairwal (A-1) who had purchased this property as benami. There is no evidence available on record in this regard. Therefore, this head of expense cannot be said to be linked with C. S. Khairwal (A-1) or Sunil Khairwal (A-2)
618. With regard to item No. 15 of expenses, no bills have been filed by prosecution.
619. In these circumstances, it is reflected that only item Nos. 9, 10, 13, 21, 30 and 33 can be said to be linked with C. S. Khairwal (A-
1). With regard to expenses incurred on marriage of daughter of C. S. Khairwal (A-1) i.e. Sunita Khairwal and Manju Khairwal, C. S. Khairwal (A-1) has stated that he had withdrew Rs.1,44,000/- for marriage which is Ex.D-35 being part of documents filed along with application under Section 294 Cr.P.C. Thus, keeping in mind this document, I am of the considered opinion that C. S. Khairwal CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 297 of 309(A-1) has been able to place on record certain documents by raising preponderance of probabilities in this regard which should be clarified or countered by prosecution. No endeavour is made by IO to conduct investigation in this regard nor seems to have been made during entire trial to this effect, therefore, it cannot be presumed that these expenses are part of use of his unverified income which is not from lawful sources. C.S.Khairwal (A-1) has furnished a document (Ex.D-35) which is not countered by prosecution, to show that incurring such expenses is duly intimated to his department.
620. Thus, all these expenses except item Nos. 9, 10, 13, 21, 30 and 33 mentioned at page No. 13 and 14 of the charge-sheet cannot be said to be linked with or accrued to C. S. Khairwal (A-1). With regard to movable assets mentioned at page No. 26, it is reflected with regard to jeweleries that the valuer has not done any valuation with regard to age of these jeweleries mentioned at item No. 1 and 2. These jewelery items includes the articles which can only be worn by a lady. In other words, all such items can only be belonging to a lady i.e. Anu Khairwal, W/o C. S. Khairwal (A-1). It has been argued by C. S. Khairwal (A-1) that these jewelery items are not new but old and are stridhan of his wife Anu Khairwal.
621. Keeping in mind, the report furnished by the valuer PW-100 Rajesh Verma, it is reflected that the valuation has not been done properly according to prescribed standard to be followed for valuation of jewelery. Value has been taken on the basis of current CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 298 of 309market value and its age has not been taken into account. Moreso, the locker at High Court is not in the name of Anu Khairwal but in the name of Sunil Khairwal (A-2). Thus, the fact that valuation is not appropriate and these jeweleries may be part of stridhan of Anu Khairwal, W/o C. S. Khairwal (A-1) cannot be ruled out.
622. With regard to item no. 4 and 5 mentioned at page No. 26 of charge-sheet, K. L. Nagar has claimed these properties as belonging to him. He has been examined as PW-28 and has not supported the story of prosecution. C. S. Khairwal (A-1) has also brought on record the order of ITAT and CIT and has placed on record the relevant order Ex.D1W7/A which cannot be ignored as nothing contrary to the observation made vide this order has been placed on record by the IO along with the charge-sheet. It has been categorically mentioned in the said order passed by ITAT and CIT that the amount of Rs.6,70,000/- and Rs.90,000/- belongs to K. L. Nagar.
623. Similar are the observations with regard to the jewelery found from K. L. Nagar. K. L. Nagar, PW-28 has claimed all these properties as belonging to him, PW-5 Om Prakash has turned hostile and not supported the story of prosecution. In these circumstances, these articles mentioned as item No. 3 at page No. 26 of the charge-sheet cannot be linked with C. S. Khairwal (A-1). Observations made vide order of ITAT and CIT again are not in favour of prosecution. Thus, all these five items cannot be said to be linked with C. S. Khairwal (A-1) CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 299 of 309624. With regard to FDRs and cash balance as mentioned at page No. 26, 27 and 28 have not been disputed by C. S. Khairwal (A-1) and Sunil Khairwal (A-2). Now, coming to the other FDRs mentioned at page No. 29, they are alleged to be belonging to Sunil Khairwal (A-2), however, none of the prosecution witness has corroborated these allegations and the report of hand-writing expert PW-37 V. K. Khanna also do not indicate that mere filling of account opening form by Sunil Khairwal (A-2) may imply that Sunil Khairwal (A-2) was operating these accounts. PW-123 Ram Swaroop, S/o Chhote Lal has been examined by the prosecution who has furnished details of cash in his hand and has stated that the said account IB7006 belongs to him. Similarly, with regard to other accounts, the testimony of PW-21, PW-24, PW-103, PW-123 do not seem to be of much help to the story of prosecution as non of them have stated that all these accounts, mentioned at page Nos. 29 and 30 of the charge-sheet, were managed by Sunil Khairwal (A-2). Therefore, in my considered opinion all these items cannot be accrued to Sunil Khairwal (A-2) as the defence taken by accused persons is established by them by raising preponderance of probabilities.
625. With regard to the movable properties standing in the name of Anu Khairwal mentioned at page No. 30 of the charge-sheet, they are for a sum of Rs.4,18,947/- which has been adjusted after framing of charge by prosecution as Rs.3,93,804/-. These items have not been disputed by the accused persons. At page no. 31, the FDRs belonging to Manju Khairwal, again in my considered opinion, cannot be said to be linked with C. S. Khairwal (A-1) as CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 300 of 309PW-24, PW-51, PW-103 and PW-125 have not thrown much light in favour of prosecution that C. S. Khairwal (A-1) has sourced and financed all the sum of money in the form of Bank Balance/FDR. The bank balance shown to have been in the name of K.C.Sharma (A-3) (since deceased) cannot be considered as there is no evidence available on record and moreso it has already been observed in the above mentioned paras that proceedings against K.C.Sharma (A-3) (since deceased) stands abated.
626. With regard to FDRs mentioned at pageNo. 32 of the charge-
sheet it has been observed that item No. 1,2 and 3 have not been pressed by the prosecution alleging that there is no evidence filed on record pertaining to these items. With regard to remaining items i.e. item No. 4 to 9, only IO has been examined by the prosecution and during his testimony IO has not placed on record any document in support therewith to show that they are sourced and financed by C. S. Khairwal (A-1). Therefore, on the basis of oral testimony of PW-143, these items mentioned at page 32 of the charge-sheet cannot be said to be linked with C. S. Khairwal (A-1)
627. With regard to items mentioned at page No. 33 and 34 of the charge-sheet, it is observed that for item No. 1,3,6 and 7 which are pertaining to property No. 22 and 24 mentioned at page No. 18 and 19 of the charge-sheet, they are said to be related to Kampoori Devi. Observation with regard to this property have already been made in above mentioned paras therefore, any other movable item mentioned pertaining thereto should be linked with Kampoori Devi as well. Thus, these items just like property No. 22 and 24 CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 301 of 309mentioned at page No. 18 and 19 of the charge-sheet cannot be said to be linked with C. S. Khairwal (A-1).
628. With regard to item No. 2, number of items have been mentioned by way of observation memo pertaining to property at Ravinder Nagar, however, no valuer was present at the spot at that time. Thus, prosecution has not been able to explain as to how these items mentioned in the observation memo D-17 have been made. Thus, these valuation appears to be vague and cannot be considered.
629. With regard to item No. 5 mentioned at page No. 33 of the charge-sheet concerned witness PW-2 examined by prosecution has turned hostile, therefore, allegation qua item No. 5 remain not established. With regard to item No. 8,9,10 at page No. 34 of the charge-sheet, they are said to be pertaining to PannaLal, brother of C. S. Khairwal (A-1). Prosecution has not brought on record any document alleging that Panna Lal was a poor person and was not having sufficient economic status or he was dependent upon C. S. Khairwal (A-1).
630. Thus, like all other items mentioned above, these items again cannot be said to be linked with C. S. Khairwal (A-1). Similarly, it is reflected from the perusal of the entire record that item No. 11 and 12 are pertaining to Sunita Khairwal i.e. daughter of C. S. Khairwal (A-1). In my considered opinion, as mentioned above, Sunita Khairwal is the married daughter of C. S. Khairwal (A-1), therefore, unless and until evidence is led by the prosecution to CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 302 of 309show that she is dependent upon her father C. S. Khairwal (A-1) and not having good economic status, these items cannot be said to be linked with C. S. Khairwal (A-1).
631. With regard to Will in question, it is reflected as per allegation in charge-sheet that Will dated 17.09.1987 made by Birbal Khairwal has been disputed alleging to be forged and fabricated document. One relinquishment deed dated July, 1989 is also stated to have been executed in favour of Kampoori Devi. It has been alleged that the Will is forged and fabricated and it has been used by Sunil Khairwal (A-2) who knew or had reason to believe the same to be a forged document and has used the same.
632. From the entire perusal of the record there is no evidence available on record and stated by any prosecution witness during trial that impugned Will is forged and fabricated document. On the contrary, document pertaining to intimation of Will with his department made by C. S. Khairwal (A-1) has been placed on record by C. S. Khairwal (A-1). This document has not been controverted. If the Will was forged and fabricated then what was need and occasion for C. S. Khairwal (A-1) to intimate the same much prior to the registration of FIR in the present case, has not been explained by the prosecution. Thus, all these submissions made by IO in the charge-sheet are nothing but bald allegation which is not supported with any allegations. This fact is further strengthened from the record that concerned witness T. R. Nehra, the hand-writing expert has not been examined and the witness examined by prosecution i.e. PW-37 V. K. Khanna was a chemical CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 303 of 309examiner and not a hand-writing expert. Thus, these allegations that forged Will has been used by Sunil Khairwal (A-2) is not substantiated by any piece of evidence, hence, the charge under Section 471 IPC cannot withstand against Sunil Khairwal (A-2) or C. S. Khairwal (A-1).
633. Another factor which cannot be lost sight of is that out of 143 witnesses examined by prosecution 57 were public witnesses, however, in total 41 witnesses have turned hostile and not supported the story of prosecution. Some of the witnesses have stated that C. S. Khairwal (A-1) had met them with regard to concerned immovable property and wanted to purchase the same. However, none of such witness have stated that the payment was made by C. S. Khairwal (A-1) by himself. In this regard, the ratio laid down in the case of Sharad Birdi Chand (Supra) is equally applicable in the present facts and circumstances and such averments made by witness that C. S. Khairwal (A-1) had met them but they have not stated anything regarding payment made by him, is nothing but hearsay evidence. This fact has not been corroborated by any other witness.
634. From the careful perusal of the entire record, it is reflected that two version have emerged, one is alleged by IO that C. S. Khairwal (A-1) being a public servant was holding huge amount of wealth which was not corresponding to his lawful and known source of income and he was holding benami properties in the name of various persons. On the other hand, there is version of accused person which is reflected from the application filed under Section CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 304 of 309294 Cr. P.C vide which C. S. Khairwal (A-1) and Sunil Khairwal (A-2) have placed on record a number of documents alleging that when search and raid were conducted at various places on and after 18.02.1996 and various properties were seized alleging them to be benami, the actual owner of such properties have filed their objections before Ld. District Judge at that time claiming all such properties belonging to them which were seized during raid. The aspect pertaining to admission denial of document was considered and as per order dated 06.02.2003, the issue pertaining to admission-denial of document was postponed.
635. It is reflected from the entire perusal of the record that prosecution has not led any evidence controverting the defence taken by such persons who have claimed these properties which are alleged to be benami in the charge-sheet. All these documents are considered as relevant and in my considered opinion as they have not been controverted by the prosecution thus, the prosecution has not been able to shift the onus upon the accused persons in this regard. Thus, accused persons have raised their defence to this extent by preponderance of probabilities and their submission that all such properties were not the benami properties of C. S. Khairwal (A-1) is strengthened further.
636. Coming to the plea of grant of Sanction, it has been observed in above mentioned paras that all the relevant material which was required to be placed before sanctioning authority has not been sent, as per law. As per the report of SP, exhibited as Ex.PW143/DZ-7 it is reflected that 114 witnesses and 51 CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 305 of 309documents were sent before sanctioning authority, however, as per record testimonies of 295 PWs and 338 documents were filed along with the charge-sheet. It has been already observed in above mentioned paras that as per judgment Ashok Aggarwal (2013) (supra) and various other judgments relied upon in this regard the sanction for prosecution is not proper. If this fact is considered that sanction for prosecution is sought against C. S. Khairwal (A-1) was not according to rules and procedures and not proper then on this account itself the entire trial stands vitiated.
637. In this regard, it is important to mention here that issue pertaining to sanction sought against C. S. Khairwal (A-1) not being proper was raised during trial and vide order dated 05.03.2016, the issue relating to sanction was decided by Sh. Pitamber Dutt, the then Ld. Special Judge CBI stating that prayer for dropping the proceedings against C. S. Khairwal (A-1) for want of proper sanction is not sustainable. This order dated 05.03.2016 was upheld by Hon'ble High Court of Delhi vide order dated 20.09.2017 and it was held that this issue be taken up at the time final arguments. This aspect has been dealt at length during final arguments and observation in this regard have been made in above mentioned paras by applying Ashok Aggarwal (2013) (Supra) and other judgments Therefore, in my considered opinion such consequences of sanction order not being proper should follow accordingly.
638. Coming to the allegation of conspiracy amongst C. S. Khairwal (A-1) and Sunil Khairwal (A-2), it is important to CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 306 of 309mention here that the most important ingredient of allegation of conspiracy is the issue of benami properties created by C. S. Khairwal (A-1) in the name of Sunil Khairwal (A-2), K.C.Sharma (A-3) (since deceased), relatives and friends. The issue pertaining to benami holding has not been established by the prosecution as reflected from the above discussion, therefore, if there are no facts pertaining to benami transaction as alleged then there arises no question of any conspiracy amongst themselves. It is needless to say that K.C.Sharma (A-3) (since deceased) has already expired and proceedings against him stands expired.
639. Last but not the least, it has been argued by C. S. Khairwal (A-1) that he had made foreign travels many a times and had received various allowances from the government however, no credit for such allowances has been given to him as his income. In this regard, the circular of CBI exhibited as Ex.PW143/DA is relevant to mention here which is manifest itself explaining the things mentioned therein. These allowances are given by the government for the probable expenses which are to be or can be incurred by government servant during his foreign travel. Thus, keeping in mind the mandate and procedure followed, such allowances cannot be considered as income of C. S. Khairwal (A-
1)
640. Therefore, the outcome of above discussion reflecting from averment made in the charge-sheet, evidence led by prosecution and accused persons as well as arguments advanced from both the CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 307 of 309sides, it is reflected that prosecution has been able to establish only the properties i.e. movable and immovable, held by Anu Khairwal that they are linked with C. S. Khairwal (A-1). All other properties alleged as benami have not been established by the prosecution beyond reasonable doubt. Prosecution has miserably failed in establishing the allegation against C. S. Khairwal (A-1) that he had misused his official position and was holding huge income which was not from lawful and known sources. None of such allegation stands established
641. In the light of above discussion it is reflected that prosecution has failed to establish the liability of C. S. Khairwal (A-1) and Sunil Khairwal (A-2) beyond reasonable doubt as evidence available on record is not sufficient to prove their guilt. Thus, the charge so framed against them is not established. K.C.Sharma (A-
3) has already expired during trial and proceedings against him stands abated qua him. Hence, C. S. Khairwal (A-1) and Sunil Khairwal (A-2) are acquitted accordingly.
Previous surety submitted during trial stands discharged.
Bail bond under Section 437-A Cr.P.C has already been filed.
CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors.
Page No. 308 of 309Bank account and property so attached, if any, be released to the lawful claimant, as per rules and procedures.
File be consigned to record room, as per rules and procedures, after due compliance.
Digitally signed by PRASHANT KUMAR PRASHANT Date: KUMAR 2024.08.08 20:44:57 Pronounced in the open court +0530 on 03rd August, 2024 (PRASHANT KUMAR) SPECIAL JUDGE (PC ACT) (CBI)-07 ROUSE AVENUE COURTS NEW DELHI CC No. 180/2019 CBI Vs. C. S. Khairwal & Ors. Page No. 309 of 309