Delhi District Court
Cbi vs . (1)R.N. Rastogi, Ze(B) on 15 December, 2021
IN THE COURT OF SH.SHAILENDER MALIK, SPECIAL JUDGE
(P.C. ACT) (CBI)22, ROUSE AVENUE COURT COMPLEX, NEW
DELHI
CC No.223/2019
RC No.DA12000A0045/ACB/CBI
u/s 120B r/w 420 IPC &
13(2) r/w 13(1)(d) of P.C. Act, 1988
CNR No.DLCT110008892019
CBI vs. (1)R.N. Rastogi, ZE(B)
s/o Late Sh.Niadar Mal
R/o J13/37, Rajouri Garden,
New Delhi.
(2)S.B. Singh, JE(B)
s/o Sh.Lal Bahadur Singh
R/o H.No.338, Sector15A,
Noida, U.P.
(3)Vinod Kumar, JE(B)
s/o Sh.Dayanand
R/o D16, Preet Vihar
Delhi110092.
(4)Umesh Kumar Gupta
(since deceased)
s/o Late Sh.Inder Dev Gupta
R/o B23, GKI,
New Delhi.
(5)Yogender Gupta
s/o Sh.Trilokchand Gupta
R/o B23, GKI,
New Delhi.
CC No.223/2019 (Judgment)
CBI Vs. R.N. Rastogi & Ors. Page 1
(6)Sudhir Gupta
s/o Late Sh.Suresh Kumar Gupta
R/o 31A, Sainik Farms,
Delhi
Date of Institution : 17.02.2001
Date of charge framed : 04.10.2016
Date of arguments heard : 07.12.2021
Date of Judgment : 15.12.2021
JUDGMENT
1. Accused R.N. Rastogi (A1), S.B. Singh (A2), Vinod Kumar (A
3), Umesh Kumar Gupta (A4), Yogender Gupta (A5) and Sudhir Gupta (A
6) are facing trial herein for charge of offence under Section 120B read with Section 420 IPC and Section 13(2) read with 13(1)(d) of the P.C. Act. Accused Umesh Kumar Gupta (A4), Yogender Gupta (A5) and Sudhir Gupta (A6) are also facing trial for substantive offence under Section 420 IPC. Similarly, public servants i.e. accused R.N. Rastogi (A1), S.B. Singh (A2) and Vinod Kumar (A3) are also facing trial for substantive offences under Section 13(2) read with 13(1)(d) of the P.C. Act, 1988.
2. Facts which can be drawn from the charge sheet are that RC in this case was registered on 24.08.2000 against nine accused persons namely, Jitender Singh Bedi, Umesh Kumar Gupta, Yogender Gupta, Ajit Singh, M.S. Garg, R.N. Rastogi, O.P. Jangid, S.B. Singh and Vinod Kumar, on the basis of some reliable information to the effect that Jitender Singh Bedi, owner of property no.B23, Greater Kailash Part I, New Delhi (hereinafter referred to as property in question) and accused Umesh Kumar Gupta, Yogender Gupta, CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 2 builders/partners of M/s Ashoka Builders and Properties along with Ajit Singh who is an Architect hatched a criminal conspiracy during 1988 onward along with M.S. Garg and S.B. Singh who were posted as AE/ZE and JE respectively in the Building Department of MCD with other unknown officials with the intention to cause undue pecuniary advantage to the owners and builders by permitting to carry out large scale unauthorized construction in the "property" in question in gross violation of building bye laws.
3. It is alleged that M/s Ashoka Builders and Promoters wherein accused Umesh Kumar Gupta, Yogender Gupta and Sudhir Gupta are partners purchased the property in question from Jitender Singh Bedi through a sale deed dated 04.08.1988. Thereafter a proposal was submitted to MCD on 25.08.1988 as per which entire first floor, part of existing ground floor was to be demolished and property was to be reconstructed by adding a basement underneath along with mezzanine floor, first floor and 'barsati floor'. Building plan for addition/alteration was sanctioned by orders of accused R.N. Rastogi, the then AE, MCD on 13.09.1988 and was released on 21.09.1988. As per this sanctioned plan basement and mezzanine floor was allowed to be constructed for domestic and household storage, whereas ground floor, first floor and barsati floor was sanctioned for residential purpose. Such plan for addition/alteration was submitted by Jitender Singh Bedi, however after its sanction same was received by accused Umesh Kumar Gupta, partner of M/s Ashoka Builders and Promoters.
4. It is alleged that subsequently, M.S. Garg, AE/ZE transferred and accused R.N. Rastogi succeeded in his office who worked upto January 1990 and thereafter O.P. Jangid came. Similarly, JE S.B. Singh stood transferred CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 3 during December 1989 and accused Vinod Kumar joined in his place. It is alleged that above said officials of MCD who replaced the earlier officials, joined the criminal conspiracy by continuing to omit to take any legal action against the alleged unauthorized construction being carried out in that property for extraneous consideration and thereby caused pecuniary advantage to the owners/builders and to the detriment of civic facilities and Master Plan of Delhi.
5. It came in the investigation that construction of above said building started somewhere in March/April 1989 and structure of the building consisting of basement, ground floor, first floor, second floor and third floor including mumty (stair cover) completed in February or early March of 1990. It is alleged that as such no mezzanine floor was constructed in the building instead an extra floor was constructed by the builder. It further came in the investigation that unauthorized construction of commercial nature and of residential including large scale deviation from sanctioned plan was carried out in constructing said building in violation of sanctioned plan for addition/ alteration.
6. It came in the investigation that Technical Committee of experts from MCD inspected the property in question and gave its report on 27.12.2000 and subsequent report on 05.02.2001 noting down violations of sanctioned building plan/unauthorized construction in the said property. It was noted that against sanctioned area of 10153.91 sq. ft on all floors existing area of all the floors, found to be 26301.85 sq. ft. Moreover existing area of column to column basis was found to be 21681.99 sq. ft which indicated that builder/owner gained undue benefit of excess area coverage.
CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 4
7. It further came in the investigation that M/s Ashoka Builders and Promoters applied for a credit facility of Rs.1 crores from Indian Bank, Chandni Chowk by submitting a project report relating to property in question, wherein it was claimed by the building that a residential cum commercial complex was to be constructed on the area of 1000 sq. yards, wherein shops at the ground floor (5000 sq. ft.) proposed to be sold on Rs.60 lakhs, showroom on ground floor (5000 sq. ft.) proposed to be sold on Rs.90 lakhs and at upper floor (15000 sq. ft.) were expected to be sold on Rs.135 lakhs.
8. It further came in the investigation that M/s Ashoka Builders and Promoters applied for D Form on 11.12.1989 and same was issued on 11.12.1989 itself under the signatures of A1 R.N. Rastogi, ZE (B) and signatures of accused S.B. Singh who got transferred on 12.12.1989 i.e. next day of issuance of D Form. It is alleged that as per Circular No.22/Engg/Estt. Dated 18.11.1972 of MCD Engineering Department JE(B) was supposed to inspect the site and check all the fittings etc. having been completed in according to sanction plan. Further as per Circular No.PSC/EinC/1767/88 from the Office of Commissioner of MCD dated 31.10.1989, wherein it was stated that at the time of issuance of Form C and D building should be thoroughly checked for deviations and in case of serious violation of deviations carried out at the site, Form C and D should not be issued and and appropriate action for deviation should be initiated. So as per the Circulars Form C and D could be issued only when building is constructed as per sanctioned building plan and a certificate to the effect that there is no "non compoundable deviation" should be recorded on the copy of sanctioned CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 5 building plan and with this certificate the case to be submitted to ADC/ZAC for his orders regarding issuance of Form C and D. It is alleged that accused S.B. Singh and R.N. Rastogi issued D Form under a criminal conspiracy in utter violation to above said Circulars.
9. It further came in the investigation that M/s Ashoka Builders and Promoters on 05.01.1990 applied for completion certificate and accused Vinod Kumar, the then JE (B) inspected the site on 15.01.1990 and mentioned in his inspection report that he inspected the site and found the building to be not completed. He proposed for not granting of completion certificate. It is stated that though at that time completion certificate was refused, however accused Vinod Kumar, JE (B) allegedly omitted to take immediate action for booking the building for unauthorized construction with malafide intention and rather allowed to construction to go on. It is further alleged that JE Vinod Kumar subsequently booked the unauthorized construction in the building by FIR No.104016 for alleged deviation/excess coverage against the sanctioned building plan at basement, ground floor, mezzanine floor, whereas the structural part of the building included basement, ground floor, first floor, second floor as well as third floor beside mumty and machine room on the terrace which completed in February end/early March and in this manner he only booked part of the unauthorized construction to give undue favour to the builder.
10. It is alleged that as per the rules and provisions of DMC Act in case of an unauthorized construction of commercial nature as well as in case of large scale deviation in residential construction against the sanctioned plan, it was required to seal the building for unauthorized construction which was CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 6 being carried out by taking action under Section 343/344 of the DMC Act. It is stated that in this manner accused persons committed offence under Section 120B rad with Section 420 IPC as well as Section 13(2) read with 13(1)(d) of the P.C. Act. It is stated in the charge sheet that accused Umesh Kumar Gupta, Yogender Gupta and Sudhir Gupta being partners in fir M/s Ashoka Builders and Promoters committed substantive offence under Section 420 IPC. Whereas it is alleged that substantive offence of P.C. Act was also committed by three accused persons namely S.B. Singh, Vinod Kumar the then JE of MCD and R.N. Rastogi the then Zonal Engineer of MCD. However, accused M.S. Garg, O.P. Jangid and Jitender Singh were not charge sheeted by stating that there was no sufficient evidence against them.
11. After filing of charge sheet cognizance of the offence was taken and accused persons charge sheeted were summoned. Copy of the charge sheet was supplied to them. Later deficient copies were supplied as well as certain unrelied documents were taken on record and supplied to accused persons. Taking into consideration entire material available on record ld. Predecessor of this court vide order dated 23.09.2016 framed charge against the accused persons u/s 120B IPC r/w Section 420 IPC r/w 13(2) r/w 13(1) (D) of the P.C. Act against all accused persons, substantive charge u/s 420 IPC against accused Umesh Kumar Gupta, Yogender Gupta and Sudhir Gupta and further substantive charge u/s 13(2) r/w 13(1)(d) of the P.C. Act against accused R.N. Rastogi, S.B. Singh and Vinod Kumar on 04.10.2016 to which accused pleaded not guilty and claimed trial. Thereafter admission/denial of documents was carried out.
12. In order to substantiate the charge prosecution has examined 40 CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 7 witnesses.
13. Having gone through the evidence on the judicial record, different witnesses examined by prosecution can broadly be classified into four categories viz (i) Witnesses who supplied building material; (ii) witnesses from MCD and Technical Committee; (iii) witnesses who purchased shop/ flat in the building in question; (iv) Witnesses of photography and videography of property; (v) other witnesses.
Witnesses who supplied the building material
14. PW-1 is Anil Kumar who deposed that his father had been running the firm M/s Kali Ram & Sons and bill no. 180 dt. 30.9.89 Ex. PW1/1 was issued regarding supply of material to M/s Ashoka Builders & Promoters. PW-2 is Prabhu Dayal who being partner in the firm M/s Satija Building Material Store, has deposed that his firm supplied cement at address as mentioned in the bill no. 4747 dt. 10.5.89, 4407 dt. 2.4.89 Ex. PW2/1 and Ex.PW2/2 respectively. PW-5 is Vivek Bhatter, who deposed that his firm M/s Manglam Steels supplied building material vide bill no. 1445 and 1488 dt. 17.3.89 and 11.10.89 respectively Ex.PW5/A and B to M/s Ashoka Builders & Promoters at their site at B-23, Greater Kailash-1.
15. PW-15 is Raghunath Gupta who stated that his firm M/s Builder Cement Corporation supplied material as described in bill Ex. PW15/A to the person as mentioned therein. PW-17 is Kishan Chand who deposed that by bill no. 9794 dt. 27.10.89 and bill no. 10844 dt. 10.6.90 of M/s Rama Stores Ex. PW17/A (colly.) materials as mentioned in those bills were supplied to person as mentioned in the bill. PW-30 is Harish Sharma who is stated to be Assistant Accountant in M/s D D Crusher and who had also worked for sister concerns namely firm M/s Ahuja Transports, M/s Darshan Lal Ahuja & Sons CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 8 and M/s Dharam Stone Crushing Company. PW-30 states that file D-31 from page 7 and 51 contains bills in his writing Ex.PW30/A and Ex. PW30/B. Similarly, file D-31 from page 8 to 19, 43 to 50 and 52 to 55 also contain bills/challans of above said firms which Ex.PW30/C to E. Witness has further deposed regarding bills on different pages of file D-32 which Ex. PW30/1 to Ex.PW30/61. Similarly, witness also deposed about file D-A5 Ex. PW28/DX (for period 1990 to 1991) containing different bills which are Ex.PW30/62 to
88. PW30 further deposed that vide above said bills of above said firms, building material was supplied at the site of Greater Kailash.
16. PW-37 is Satya Naraya Bhatter who states that his firm M/s Satya Narayan Trading Company carry on business of supply of iron steel etc. PW37 deposed that different bills no. 4644, 4652, 4688, 4692, 4705, 4708 of March, 1989 his firm supplied MS Bars, MS Wires of Steel of different size at the site of B-23, Greater Kailash-1 to M/s Ashoka Builders & Promoters. Those bills are collectively Ex. PW37/A. PW37 has also referred to 33 different bills for period from April 1989 to January 1990 which are collectively Ex.PW37/B. Same witness also referred to two bills from file DA-5 which are 5695 and 5697 of April 1990 Ex.PW37/C. This witness also corroborated the supply of material vide bills Ex. PW5/A and B proved earlier by PW5.
Witnesses from MCD and Technical Committee
17. PW4 B.L. Jindal has deposed that he worked as J.E. (Building) from 1984 to 1995 and thereafter as A.E. (Building) from 1996 to 2006 in MCD and later promoted as Executive Engineer. PW4 says that in case of sanction for addition/alteration of building plan, a party has to submit copy of previous sanctioned building plan, completion certificate as well as affidavit/ CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 9 undertaking, indemnity bond, certificate of supervision of Architect, Property Tax Receipt etc. PW4 says upon scrutiny of all those documents, building plan is sanctioned as per prevailing norms and rules.
18. PW4 says that for property No.B23, G.K.I, building plan application dated 25.08.1988 (Ex.PW4/A) was filed along with enclosures for addition/ alteration by Jitender Singh Bedi. PW4 says that application enclosed with previous sanction plan dated 11.10.1966 (Ex.PW4/B). PW4 also proves scrutiny report on that application which is Ex.PW4/C. As per proposal, sanction was sought for construction of basement, addition/ alteration of ground floor, construction of mezzanine floor, first floor, "Barsati", second floor, servant quarter at Garage block. PW4 submitted scrutiny report Ex.PW4/C to then A.E. R.N. Gupta. Thereafter notice was issued on 06.09.1988 to applicant/Architect for necessary compliance/ correction. After compliance, case was further examined and then the case was recommended for sanction on 08.09.1988 by observation/note Ex.PW4/D.
19. PW4 further says that after noting of A.E. R.N. Gupta dated 02.09.1988 file was marked to EE (B) and the building plan was sanctioned on 13.09.1988 which was released on 21.09.1988. PW4 also proved sanction letter dated 21.09.1988 Ex.PW4/E which was received by accused Umesh Kumar Gupta whose signatures are at point B of Ex.PW4/E. PW4 also refers to demolition plan Ex.PW4/F, site plan, area chart details, elevation sheet etc. for sanction plan which is Ex.PW4/G. Witness also deposes regarding details of sanctioned building plan of each floor consisting of basement, addition/ alteration of ground floor, construction of mezzanine floor, construction of CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 10 first floor and 'Barsati' floor which is Ex.PW4/H. PW4 further deposes that mezzanine floor is to be between ground and first floor and permissible height of which is between 2.2 meter to 2.7 meter.
20. PW7 is R.K. Sharma who was also worked as Assistant Engineer (B), South Zone in 2001. He deposes that he had handed over certain documents to the IO vide productioncumseizure memo dated 15.01.2001 Ex.PW7/A. Those documents include six files which are D20 and are exhibited as Ex.PW7/B to Ex.PW7/G respectively.
21. PW10 is Pushkar Sharma who deposes that he was one of the member of the Technical Committee. Witness refers to letter dated 27.12.2000 of Superintending Engineer Sh.M.M. Dass who headed that Technical Committee. Said letter is Ex.PW10/A. PW10 deposes that the above said Technical Committee was formed in respect of property no.B23, G.K.I, New Delhi. Witness states that report of Technical Committee was prepared by Sh.V.P. Gupta and Sh.M.R. Mittal which is Ex.PW10/B. PW10 further testifies regarding letter dated 05.02.2001 Ex.PW10/C. Witness states that head of the said Committee Sh.M.M. Dass has expired. PW10 further proves another letter of late Sh.M.M. Dass as Ex.PW10/D. He further refers to office order (D89) to DIG of CBI bearing signatures of Sh.J.L. Dhingra, Chief Engineer of MCD is Ex.PW10/E and copy of office order (D91) is Ex.PW10/I.
22. PW12 is Rakesh Kumar who worked as Record Keeper in MCD (B) from August 1991 to May 1995. He stated that he succeeded the charge from Chander Bhan Sharma in August 1991. PW12 handed over certain documents to the IO of this case vide productioncumseizure memo dated CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 11 17.11.2000 Ex.PW12/A as well as another productioncumseizure memo dated 03.11.2000 Ex.PW12/B; productioncumseizure memo dated 09.01.2001 Ex.PW12/C, productioncumseizure memo dated 21.11.2000 Ex.PW12/D.
23. PW12 further deposes that show cause under Section 343/344 of the DMC Act dated 09.04.1990 issued to M/s Ashoka Builders and Promoters through A4 Umesh Gupta regarding property no.B23, G.K.I is Ex.PW12/E, demolition order dated 18.04.1990 issued to M/s Ashoka Builders and Promoters regarding above said property is Ex.PW12/F. Witness states that as per the contents of the same demolition order was passed on account of deviation of excess coverage against sanctioned building and order was issued by the then ZE(B) O.P. Jangid. PW12 further deposes that from completion certificate register (D13) it is evident that completion certificate was applied for in respect of above said property on 05.01.1990 submitted by A4 being partner of M/s Ashoka Builders and Promoters. PW12 also says that the application for completion certificate is Ex.PW12/H. Witness states that as per the noting dated 15.01.1990 Ex.PW12/I CC was refused by Vinod Kumar, JE(B) (A3). This witness also proved the sanction letter dated 21.09.1988 issued by Building Department (HQ) in respect of above said property along with three sets of completion plan signed by owner and Architect are Ex.PW12/J.
24. PW18 is R.K. Bhattacharya who deposes that accused Vinod Kumar (A3) has worked as J.E. in his subordination in year 1994. Witness says that show cause notice already Ex.PW12/E bears signatures of A3 Vinod Kumar, JE at point A. He also identifies the hand writing of accused CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 12 Vinod Kumar, JE on that notice and states that overleaf of this document is blank. Similarly, witness also identifies the signatures of accused Vinod Kumar on demolition notice already Ex.PW12/F and also identifies the hand writing of accused Vinod Kumar on it and states that overleaf side of this document is also blank. PW18 states that Fir Ex.PW12/DI also bears the signatures of accused Vinod Kumar at point A as well his hand writing.
25. PW18 further says that show cause notice (D20/221 to 223) bear signatures of accused Vinod Kumar, JE on each page and also identifies writing of accused Vinod Kumar on it. Said show cause notice is Ex.PW18/A. Witness states that demolition order (D20/224) also bears signatures of accused Vinod Kumar which is Ex.PW18/B, refusal for completion certificate already Ex.PW12/I is also signed by accused Vinod Kumar, intimation regarding refusal of completion certificate is already Ex.PW12/DB also bears signatures of accused Vinod Kumar. Witness states that he has worked as ZE(B) in year 1994 and later in year 1995.
26. PW20 is M.R. Mittal who stated that he had worked as Assistant Engineer (B) HQ during the year year 1996 to 2006. This witness proved Circular No.22/engg./estt. of MCD dated 18.11.1972 Ex.PW20/A. He states that in the said Circular at item no.IV defines the duties of JE working in MCD regarding checking of unauthorized construction. PW20 further proved another Circular No.PSC/Einc/1767/88 dated 31.10.1988 Ex.PW20/B. Pw20 says that in the said Circular duties of ZE(B) are mentioned from point A to B. PW20 further deposes that from Circulars Ex.PW20/A and Ex.PW20/B it is clear that if DForm is issued it meant that no noncompoundable deviation exists at the site and the building is as per sanctioned building plan.
CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 13
27. PW20 further deposes that he has been one of the member of the Technical Committee attached with the CBI which was headed by Sh.M.M. Dass, Superintending Engineer, MCD. PW20 refers to letter dated 27.12.2000 of Sh.M.M. Dass already Ex.PW10/A addressed to the IO. PW20 deposes that after checking the property no.B23, G.K.I the Technical Committee note was prepared which is already Ex.PW10/B bearing the signatures of PW20 at point D. PW20 says that said report was prepared by him as well as V.P. Gupta, the then AE and was checked by Pushkar Sharma (PW10). PW20further proves the letter dated 05.02.2001 of Sh.M.M. Dass already Ex.PW10/C and deposes about the letter dated 15.12.2000 addressed to Sh.M.M. Dass which is Ex.PW20/C. This witness also proves letter dated 29.01.2001 Ex.PW20/D.
28. PW21 is Satyendra Pal Aggarwal who remained posted as Commissioner, MCD in year 2001 and stated to have accorded sanction for prosecution against accused no.2 and 3. PW21 deposes that after having gone through the statement of witnesses, other material evidence and documents placed before him he being the competent authority for appointment/removal of accused no.2 and 3 from their services, accorded the sanction for prosecution vide order dated 16.02.2001 Ex.PW21/A.
29. PW22 is Vijay Kumar Kadyan who deposes that he officiated as Executive Engineer (B) South Zone. PW22 says that building plan is to be sanctioned from the building headquarter and thereafter sanction letter and sanction plan is to be sent to concerned Zonal Office and as per bye laws whenever party starts construction work he has to inform to the department and area JE(B) would regularly check the ongoing construction, even if CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 14 intimation is not received he has to check the construction activity. PW22 further deposes that in case of a new construction, owner/builder would apply for C Form at the stage when underground sanitary pipes are being laid. Upon deposit of necessary fee entry in the C Form register would be made by concerned JE(B) after inspecting the site and approval for the same. PW22 further says that in case of addition/alteration sanction plan where ground water and sewer lines are not disturbed C Form is not necessary, in such case owner/applicant would apply for D Form after completing all sanitary and water supply fittings. For applying D Form necessary fee/documents to be deposited and entry regarding the same would be made and thereafter owner/ builder would apply for issuance of completion certificate.
30. PW22 says that Form C and D are to be issued under the signatures of ZE(B) after the approval for the same from the competent authority. Separate file for Form C and D is to be mantained in Zonal Office. PW22 says that by a letter dated 03.11.2000 Ex.PW22/A he handed over documents running into 122 pages regarding posting details of different officers of MCD mentioned therein. PW22 says that as per Ex.PW22/A M.S. Garg worked from 07.03.1988 to 13.03.1989, R.N. Mittal worked from 13.03.1989 to 11.01.1990 and O.P. Jangid worked from 12.01.1990 to 29.08.1990 as ZE/AE (B) respectively. PW22 further says that similarly S.B. Singh remained posted as JE(B), MCD South Zone from 31.08.1988 to 12.12.1989 (except from 02.11.1989 to 01.12.1989) when Rafiq Ahmad was officiating as JE. PW22 says that accused no.3 Vinod Kumar remained posted as JE from 12.12.1989 to 07.09.1990.
31. PW22 further proves letter dated 20.12.2000 Ex.PW22/B vide CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 15 which he stated to have handed over different documents to IO of this case. As per documents by letter Ex.PW22/B it was intimated that prior to 1996 area of G.K.I was in Ward No.10 and now it is designated as Ward No.12. PW22 further deposes that in case where there is no sanctioned building plan JE has to draw a rough sketch along with FIR for booking the property for unauthorized construction and thereafter show cause notice and demolition notice is to be issued. However no such rough sketch plan is required to be drawn when the unauthorized construction is being raised against sanctioned building plan.
32. PW22 further refers to letter dated 24.10.1989 addressed to ZE(B) MCD on the letterhead of M/s Ashoka Builders and Promoters whereby a request for issuance of C Form, D Form and CC (completion certificate) to M/s Ashoka Builders and Promoters was made. Said letter is Ex.PW22/C. In this letter it was also mentioned that sanction plan for addition/alteration was sanctioned in the name of Jitender Singh Bedi. PW22 further refers to office order Ex.PW22/D in respect of change of ownership of above said property. PW22 further states that vide productioncumseizure memo dated 20.12.2000 (D14) Ex.PW22/E he handed over certain documents to the office of SP, CBI, ACB.
33. PW22 further refers to file containing certified copies including of FIR No.104016, show cause notice no.99066, demolition order no.96090. The entire file is Ex.PW22/E. Witness states that these documents were handed over by him through memo Ex.PW22/E. PW22 deposes that as per practice in MCD if there is major deviation in the construction, building/ property would be booked and same would be mentioned in the FIR so that CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 16 sealing action can be taken under the DMC Act beside normal action under Section 343 and 344 of the DMC Act. He further deposes that in case of deviation in mezzanine floor, it would be recorded in the FIR and if the deviation would include change in the height and area on the floor, in FIR mezzanine floor would be termed as regular floor. He states that if mezzanine floor has been converted into regular floor same would be mentioned while booking property/drawing FIR. After seeing the document D20 (already Ex.PW7/B) witness identifies the FIR as Ex.PW12/D, show cause notice Ex.PW18/A, demolition notice Ex.PW18/B and also Ex.PW22/G. PW22 further deposes that in the FIR Ex.PW12/D1 property has been simply booked against deviation and there is no mention as to minor or major deviation. This witness also states that as per the Circulars Ex.PW20/A and Ex.PW20/B if D Form has been issued it means that there was no noncompoundable deviation existing in the building. PW22 further proves letter dated 12.12.2000 addressed to the IO which is Ex.PW22/H.
34. PW27 is V.P. Bhardwaj who deposed that during the year 2000 he was posted as Architectural Assistant in the office of Chief Architect Department, MCD, Kashmiri Gate, Delhi and on the instructions of Chief Architect, he reported to the CBI office to make the map of existing building. He was taken to the site at Greater Kailash and at the said site he took measurement and prepared rough sketches and prepared a scaled map/ drawing of the existing building at the site. PW27 further states that there was a team of 45 members including Surveyor Ram Phal and Architectural Assistants S.K. Banka and C.L. Sahni at the site. Witness states that Ram Phal took the measurement of the building and he noted down the CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 17 measurement and prepared rough sketches along with C.L. Sahni and S.K. Banka. Witness further states that they had prepared the scaled map Ex.PW27/A of basement, ground floor, first floor, second floor, third floor and also scaled map Ex.PW27/B of terrace floor, construction raised over the terrace floor and site plan. Witness further states that scaled maps Ex.PW27/A and Ex.PW27/B are original maps and same have been developed from the negative.
35. PW33 is Mehtab Khan who was working as Senior Investigating Officer in Vigilance Branch of MCD. He stated to have handed over record during investigation to CBI vide production cum seizure memo dated 23.10.2000 Ex.PW33/A. PW33 says that being Senior Investigating Officer of Vigilance Branch he called upon file D6 from the branch of MCD and h anded over the same to the IO which is Ex.PW33/B. Similarly, another file (DA3) is Ex.PW33/C and another additional file is Ex.PW33/D and Ex.PW33/E.
36. Another witness from the MCD is PW35 R.K. Gupta who deposed that while he was working as Executive Engineer (Building), Head Quarter in 2001 he furnished the necessary information to the CBI during investigation. PW35 proved the letter dated 10.01.2001 Ex.PW35/A vide which office orders and circulars pertaining to building department were provided to CBI. Those office orders and circulars are collectively Ex.PW35/B. Witnesses who purchased shop/ flat in the building in question
37. Under the above mentioned category PW3 Dev Sainani has deposed that he had purchased office space in a portion of property at first CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 18 floor of property no.B-23, G.K.-I along with his brother from A-6 from M/s Ashoka Builders and Promoters Pvt. Ltd. in the year 1994. PW3 says that he gave the letter dated 31.08.2000 to the CBI during the investigation whereby he provided the documents of purchase of the property sale is Ex.PW3/A. He stated that said portion of the property was purchased by sale documents like agreement to sell, GPA etc. Ex.PW3/B to Ex.PW3/D. PW3 says that he has been running his office from the said premises since September/October 1994.
38. PW8 is Manish Ahluwalia who deposes that by production cum seizure memo Ex.PW8/A he handed over to the IO of the CBI documents of purchase of property i.e. photocopy of sale deed dated 24.12.1990 Ex.PW8/B. executed between M/s Ashoka Builders and Promoters Pvt. Ltd and him in respect of property bearing private no.G-15 at ground floor of property no.B- 23, G.K.-I, New Delhi. Witness further states that later he sold that shop in July/ August 2000 and therefore original of the sale deed has already been handed over to the buyer.
39. PW9 is Baldev Oberoi who also deposes that by production- cum-seizure memo dated 25.08.2000 Ex.PW9/A he handed over to the Inspector of CBI certain documents of purchase of shop in property no.B-23, G.K.-I, New Delhi. He deposes regarding original agreement to sell dated 30.11.1990 Ex.PW9/B between his wife Sunita Oberoi and M/s Ashoka Builders and Promoters for private shop no.LG-12 in the above said property. Original agreement to sell dated 28.11.1990 is Ex.PW9/C, receipts issued by Ashoka Builders and Promoters are Ex.PW9/D.
40. PW11 is Vimal Kumar Saigal who proved the sale deed Ex.Pw11/A for purchase of ground floor shop bearing G-12 in property no.B- 23, G.K.-I, New Delhi. Such sale deed is between him and Ashoka Builders CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 19 and Promoters. PW11 further referred to a notarized photocopy of sale deed in respect of private no.G-12A of the above mentioned property. Said sale document is Ex.PW11/B.
41. PW13 is Sanjeev Jain who states that he has been running a jewelery business being partner in the firm M/s Kapoor Chand Bothra and Sons. PW13 says that he purchased one shop no.G-12B in property no.B-23, G.K.-I, New Delhi from Ashoka Builders and Promoters, the agreement to sell of which is Ex.PW13/A. PW13 says that before making payment he had visited the shop which was in the upper ground floor of the property. Witness further states it is the shop where from he had been doing his jewelery business and later he sold that shop in the year 1998 and in between he did not disturb the structure/construction of the shop till the time he sold it and original sale documents were handed over to the buyer.
42. PW14 is Aseem Chaudhary who deposed that he had and his brother purchased flat no.D1 and D2 in property no.B-23, G.K.-I, New Delhi. PW14 further says that during the investigation he handed over the documents of sale of those flats to the IO of CBI by a letter dated 01.09.2000 Ex.PW14/A. PW14 also proves sale deed dated 15.07.1992 in respect of flat no.D1 executed between M/s Ashoka Builders and Promoters through its partner A-6 and Anurag Chaudhary. PW14 also states that he had made the payment of Rs.6,00,000/- to M/s Ashoka Builders and Promoters.
43. PW16 is Rakesh Chadha who states that during the investigation of this case handed over documents pertaining to purchase of flat in property no.B-23, G.K.-I, New Delhi vide production-cum-seizure memo dated 05.01.2001 Ex.PW16/A. Witness also proves the agreement to sell dated 10.11.1993 in respect of said flat between M/s Ashoka Builders and Promoters and him which is Ex.PW16/B. Witness states that he had already CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 20 sold that property to someone else and original documents have already been given to the purchaser. PW16 also proves photocopy of agreement to sell dated 05.11.1993 in respect of flat n.C-1 in the said property between him and M/s Ashoka Builders and Promoters which is Ex.PW16/C.
44. PW19 is K.B. Sachdev who states that he and his family members had taken three flats at the second floor of property no.B-23, G.K.-I, New Delhi. PW19 proves the production-cum-seizure memo daed01.12.2000 Ex.PW19/A vide which he handed over documents of sale to the IO of CBI. PW19 proves sale deed dated 15.09.1998 between M/s Ashoka Builders and Promoters and Smt.Shashi Sachdev which is Ex.PW19/B. Witness states that original of those documents are in custody of the bank as they had taken loan from the bank against that property. PW19 also proves notarized copy of sale deed dated 25.03.1998 Ex.PW19/C executed between his wife Smt.Shashi Sachdev and M/s Ashoka Builders and Promoters through A-4. PW19 also proves another sale deed dated 25.09.1998 between his brother Naresh Kumar and M/s Ashoka Builders and Promoters Ex.PW19/D as well as sale deed dated 15.09.1998 between younger brother of PW19 namely Naresh Kumar and M/s Ashoka Builders and Promoters which is Ex.PW19/E. Witness further states that sale deed was also executed between M/s Ashoka Builders and Promoters and Rahul Sachdev on 25.09.1998 (D-54), notarized copy of which is Ex.PW19/F. Similarly another sale deed between M/s Ashoka Builders and Promoters and Rahul Sachdev is dated 15.09.1998 (D-55), notarized copy of which is Ex.PW19/G. Witness also proves notarized copy of sale deed dated 15.09.1998 (D-56) Ex.PW19/H and another notarized copy of sale deed dated 25.09.1998 (D-57) Ex.PW19/I executed between M/s Ashoka Builders and Promoters and Rohit Sachdev respectively.
45. PW19 further deposed that a sale deed was also executed on CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 21 15.09.198 between M/s Ashoka Builders and Promoters and him being Karta of K.B. Sachdev, HUF (D-58) Ex.PW9/J as well as another sale deed dated 25.09.1998 between him and M/s Ashoka Builders and Promoters which is Ex.PW19/K (D-59). PW19 also proves another notarized copy of sale deed dated 15.09.1998 between M/s Ashoka Builders and Promoters and Ms.Sunita Sachdev which is Ex.PW19/L (D-60) and also refers to sale deed dated 25.09.1998 between Smt.Sunita Sachdev and M/s Ashoka Builders and Promoters which is Ex.PW19/M (D-61). Witness also proves other sale deeds Ex.PW19/N, Ex.PW19/O, Ex.PW19/P and Ex.PW19/Q. PW19 also proves different receipts of payment made under the transactions of sale of property which are collectively Ex.PW19/R. PW19 states that they purchased flats on the rear side of plot no.B-23, G.K.-I. PW19 states that exact floor was second floor however A4 to A6 told him that they are writing first floor in the sale deed as the first floor is mezzanine floor, as per sanctioned building plan. Witness further says that they were informed by A4 to A6 that as per sanctioned building plan there was a mezzanine floor and second floor is first floor as per sanctioned building plan.
46. PW19 further deposed that in early 1990 structure of the building was complete. They had three flats on the second floor and one flat at the third floor of the building. Height of the room from the floor was 10-11 feet approximately in their flats and same is the height in the flat at third floor. Witness states that building comprised of basement, first floor, second floor and third floor and height of each of the floor was more or less same. PW19 states that he has seen the building plan and based on that the flats were purchased. He states that if D Form is issued to any builder they presume that the building is as per plan and accordingly decision to purchase is taken. He states that building was constructed in full in one go from basement to top.
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PW19 says that there was no difference in the structure at the time when the construction was going on and when it was completed.
47. PW25 is S.K. Kataria who deposed that his mother late Smt. Gyan Kataria had purchased a shop no.LG-18 in property no.B-23, G.K.-I, New Delhi. Witness states that by a production-cum-seizure memo Ex.Pw25/A he handed over documents of sale to the investigating officer. PW15 also refers to provisional receipt dated 01.10.1988 of Rs.15,000/- being booking amount in the said property which is Ex.PW25/B. Similarly other provisional receipt no.34 dated 22.05.1989, receipt no.62 dated 03.01.1990, receipt no.63 dated 03.01.1990, receipt no.80 dated 12.06.1990, receipt no.79 dated 13.06.1990 are Ex.PW25/C to Ex.PW25/G respectively. PW25 further says that in addition to the above said payments, he made the final payment of Rs.45,000/- in December 1990 and subsequently visited the site after around two months. Witness states that construction was carried out regularly from lower portion to the second or third floor by the time the possession of the same was given to him. PW25 states that he took the possession of LG-18 at the ground floor of the said property it was divided into various shops. PW25 also refers to letter dated 01.09.2000 Ex.PW25/H through which certain documents pertaining to said property was handed over to IO. PW25 further says that he was assured by accused no.4, 5 and 6 (the builders) that shops were as per approved plan and they would be giving Form C and D at the time of possession which they never gave. Witness further deposed that construction has been carried out in such a manner that lower ground floor cannot be residential but it can only be commercial as there was no bathroom or other amenities which were meant for residential flats.
48. PW31 is Kunal Lalani who has deposed that he had purchased office space in property no.B-23, G.K.-I, New Delhi from M/s Ashoka CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 23 Builders and Promoters. He states that he purchased the office space through various sale deeds during the period 1991 to 1994 which are probably 6 to 7. PW31 says that he had purchased office space in the name of his firms M/s Crayons Advertising and Marketing Private Limited, M/s Kunal Enterprises and M/s Vimi Investment and Finance and office space was situated at the first floor of property no.B-23, G.K.-I, New Delhi and PW31 stated to have continued running his office till 2005 and then he sold the same. PW31 says that first sale deed was executed somewhere in July/August, 1991 and he inspected the property six months prior to execution of sale deed and at that time construction was in progress and about to be completed. Witness states that at the time of execution of sale deeds construction was completed and he never made any change in the structure of the property. Witness states that on the requisition of CBI he handed over photocopies of documents of sale by a letter dated 30.08.2000 Ex.PW31/A. Witness also proves photocopies of sale deeds Ex.PW31/A1 to A7. PW31 states that the office space through the above said sale deeds was at the first floor of the property though in the sale deeds it was mentioned as mezzanine floor as it was informed by the builders that as norms of the MCD are not clear and therefore it is mentioned as mezzanine floor in the sale deeds instead of first floor.
49. Last witness under this category is PW38 Gyan Prakash, who has also deposed that he joined the investigation of CBI in this case and handed over documents of sale of shop no.G-11 in B-23, G.K.-I to IO. PW38 proves production cum seizure memo dated 23.10.2000 Ex.PW38/A vide which he handed over those documents to IO. PW38 also identifies the notarized copy of sale deed dated 16.11.1990 executed between M/s Ashoka Builders and Promoters and Komila Kumar (wife of PW38). This document is Ex.PW38/B. Witness further proves the notarized copy of rent agreement CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 24 dated 16.11.1991 Ex.PW38/C in respect of above said shop executed by wife of PW38 Komila Kumar with M/s Gyan Maestros Pvt. Ltd in which PW38 is the Director.
50. PW38 further states about notarized copy of another sale deed dated 16.11.1990 Ex.PW38/D in respect of shop no.G-12 in the above mentioned property, executed by M/.s Ashoka Builders and Promoters through its partner Sudhir Gupta, in favour of PW38. Similarly witness also proves rent agreement dated 16.11.1991 Ex.PW38/E in respect of said shop as well between him and M/s Gyan Maestros Pvt. Ltd. PW38 states that in fact shop no.G-12 was given in two portions by the builder. The second portion was G-12A which PW38 stated to have purchased in the name of his daughter Nidisha Kumar. Witness states that in fact shop no.G-12A was originally purchased by two brothers namely Anil Kumar Saigal and Vimal Kumar Saigal, from M/s Ashoka Builders and Promoters. Those two brothers sold the same to one Vikram Bahri and his wife Promila Bahri on 10.11.1995. Thereafter the daughter of PW38 purchased the same under an agreement to sell dated 26.03.1999 Ex.PW38/F. Witness states that from there a shop of readymade garments is being run.
51. PW38 further deposes that even shop no.G-12A was also taken on rent by M/s Gyan Maestro Pvt. Ltd. PW38 further deposes that a third shop no.LG-13 in the above mentioned property was also sold by builder M/s Ashoka Builders and Promoters originally to Rakesh Kapoor by sale deed dated 30.01.1991. Later said Rakesh Kapoor sold it to Om Prakash and Naresh Kumar by sale deed dated 24.06.1991. Thereafter those two sold it to company M/s K.G. Properties Private Limited, in which PW38 is Director by a sale deed dated 05.08.1998 Ex.PW38/G. PW38 says that said company K.G. Properties Pvt. Ltd. through Managing Director gave that shop on rent CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 25 by rent agreement dated 24.02.2000 Ex.PW38/H to Jahanvi Creations Pvt. Ltd and a jewelery shop is being run from there.
52. PW38 says that he might have visited the property in question about 3 to 4 months prior to making first payments for purchase of the shops G-11 and G-12. He states that construction was complete at the time of execution of sale deeds of those shops. Witness states that builder M/s Ashoka Builders and Promoters told them that construction of the building is as per building rules and regulations and that builder has already obtained D Form. PW38 says that based on such representation he was made to believe that construction in the above said shops were as per building regulations and rules. Witness states that possession of above said shops is still with him and no structural changes have been made.
Witnesses of photography and videography of property
53. Under the above category three witnesses were examined by the prosecution which are PW24, PW26 and PW32.
54. PW24 is Rakesh Bisht, Sr. Scientific Officer of CFSL, CBI who deposed that in the year 2000 while he was working as Senior Scientific Officer in the Photo Division on the requisition of SP, ACB, CBI he along with Ashok Kumar, Senior Scientific Assistant were deputed for photography of premises no.B-23, G.K.-I, New Delhi from inside and outside. PW24 says that photographs were taken on 24.08.2000 by him and Ashok Kumar. Pw24 refers to letter dated 29.08.2000 of Sh.R.P. Aggarwal, SP, CBI to Director of CFSL requisitioning for photography which is Ex.PW24/A. PW24 deposed that videography and photography memo was prepared (which was exhibited as Ex.PW24/D1 in the cross-examination of the witness) in respect of property no.B-23, G.K.-I, New Delhi running into six sheets. He states that photographs were taken from Pantex and Nikon camera and photography CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 26 started at 3.40 p.m. in the presence of two independent witnesses. The premises was comprised of various shops/offices/residence etc. Witness states that there were shops in the lower ground/basement started from LG-1 to LG-18, shops on the ground floor started from G-I-A to G-18 under the proprietorship of different persons. Similarly shops were also at the ground floor starting from Ist-A to Ist-G under the proprietorship of different persons and at the first floor there were shops/office space and at the second floor there were flats which were in the occupation of different persons. Similarly there were also flats at the third floor of the property. Witness further states that terrace consists of extra space area beside mumty which was a covered machine room and generator room. PW24 also proves 203 photographs which are already Ex.PW23/B.
55. PW26 is Ramesh Chand who stated that in August 2000 while he was posted as LDC n MIG Branch, Vikas Sadan, INA, DDA, New Delhi he along with another independent witness Harish Saxena, LDC in DDA went with the CBI team for photography and videography of property no.B-23, G.K.-I, New Delhi on 30.08.2000 as well as at B-7/105-A, Safdarjung Enclave, New Delhi. PW26 says that first the videography and photography was carried out at Safdarjung Enclave and thereafter at B-23, G.K.-I. PW26 proves the videography and photography memo dated 30.08.2000 (D-85) already Ex.PW24/D1. Witness also identifies 203 photographs collectively Ex.PW23/B taken at the above said property. PW26 also identifies the cassette in which the videography was done which is Ex.PW26/B and its wrapper is Ex.PW26/A. PW26 deposed that on reaching the site at G.K. videography of the building was carried out on the ground, first, second and third floor as well as on the roof of the third floor and after completion of videography etc. CBI officials prepared the report and thereafter cassette was CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 27 sealed in a pullanda and his signatures were taken. The video clips were shown to the witness in the court and witness identifies those video clips to be the same which were shot at the above said property in his presence. The CD containing such videography is Ex.Pw26/B1 and CD cover is Ex.PW26/B2.
56. PW32 is Alok Kumar, DSP, CBI who deposed that in the year 2000 when en was working as Inspector in CBI, ACB, on 30.08.2000 he was deputed by IO M.S. Singhal, DSP to conduct videography and still photography on the premises of B-23, G.K.-I, Ashoka Arcade regarding some unauthorized construction in that building. PW32 says that he along with Insp. Shobha Dutta, Insp. R.S. Bedi and two independent witnesses Ramesh Chand and Harish Saxena, LDCs from DDA went at the spot. Video photographer Anil Kumar, Constable of CBI, Ashok Kumar and Rakesh Bisht, photographers from CFSL also reached at the spot. PW32 says that they inspected the entire building and thereafter started proceedings of videography and still photography with the help of videographer and photographer. Both the independent witnesses were shown standing at different points where from videography and still photography was carried out.
57. PW32 further says that new video cassette of Panasonic was used for that purpose for videography from Panasonic video camera. PW32 says that entire building was comprised of lower floor, basement, ground floor, first, second and third floor. PW32 says that occupants of the building at different floors were told about the purpose of proceedings being conducted. Witness also refers to proceedings of videography and photography memo dated 30.08.2000 already Ex.PW24/D1, photographs as Ex.PW23/B, CD containing videography Ex.PW23/B1 and CD cover Ex.PW23/B2. Witness identifies the video clippings which were played in the open court.
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Other witnesses
58. PW6 is R.Ramachandran from Indian Bank who deposes that during the period 1996 to 2001, he was working as Manager, Credit Department in Chandni Chowk branch, he vide letter dated 23.11.2000 Ex.PW6/A forwarded documents mentioned therein to CBI. Witness also refers to letter dated 01.12.2000 Ex.PW6/B forwarded by the then Chief Manager of Indian Bank Sh.Balram Gupta to the IO of CBI. Witness states that vide partnership deed dated 15.03.1982 Ex.PW6/C between its partners A5 Yogender Kumar, A6 Sudhir Gupta and A4 Umesh Kumar Gupta of partnership firm M/s Ashoka Builders and Promoters, a bank account was opened in the bank through account opening form dated 06.04.1984 Ex.PW6/D. Witness further refers to photocopy of letter dated 27.01.1988 Ex.PW6/E addressed to Zonal Manager, Indian Bank requesting for credit facility of Rs.1 crore for the project in New Delhi by M/s Ashoka Builders and Promoters. Witness also refers to letter dated 10.01.2001 Ex.PW6/F written by the then Chief Manager of Bank Mr.P.R. Pujari to the IO of CBI.
59. PW23 is Murari Lal Kakria who has been employee of M/s Ashoka Builders and Promoters during year 1988 to 1991. He deposed that he was supervising the construction work at B-23, G.K.-I, New Delhi. Witness further says that he had met with Cbi official, after completion of construction when he was taken to the site at B-23, G.K.-I. PW23 says that his job was to supervise the construction work as per the drawing prepared y architect late Sh.Ajeet Sanghari. He states that structural drawing were provided to him by the builder. Beside supervision no other job was assigned to him by the builder. PW23 says that construction started approximately in March 1989 and it took about one year to complete main structure work and brick work. Witness states that building was consisting of basement, ground, CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 29 first, second and floors and there was no mezzanine floor built. Construction was done in one go and he never saw any government authority visiting at the building. Witness says that he never saw any MCD authority visit at the site.
60. During the cross-examination by ld. PP for CBI witness admitted that he has stated in his statement Ex.PW23/A that structure of the building was constructed by February end/March 1990 and construction started at around March/April 1989. Witness further admitted that he stated in his statement to CBI that there was no level differences in any of the floors in the entire building. PW23 further says that MCD official might have visited the site but he had never met them during his time. PW23 further identifies 203 photographs of site of B-23, G.K.-I which are Ex.PW23/B as well as other other five photographs Ex.PW23/C-1 to Ex.PW23/C-5.
61. PW28 is Narayan Das who deposed that he and his brother Dinesh Gupta are practicing Chartered Accountants and look after income tax work and auditing work. PW28 says that M/s Ashoka Builders were earlier their client. Said firm consists of partners namely Umesh Gupta, Yogender Gupta and Sudhir Gupta. PW28 proves the profit and loss account of the above said firm for year ending 31.03.1989 which is Ex.PW28/A. Witness further says that account ledger and books of account of the said firm for the period 1989-90 as well as 1990-91 were though not prepared by him but audited by him.
62. PW28 states that as per ledger of year 1990-91 there was an entry of Rs.1,19,01,180/- Ex.PW28/B of raw material steel transfer from G.K. site to Daryaganj site of the said firm on page 297 and corresponding transfer entry of steel in the steel account of Daryaganj site dated 30.03.1991 is at page 150. Witness states that on page no.291 of Ex.PW28/B there are various entries for purchase of cement during the period 1990-91 amounting to CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 30 Rs.3,67,983/- out of which Rs.2,71,157/- was transferred from G.K. site to Daryaganj site and corresponding transfer entry in the cement account of Daryaganj site is at page 292. Witness states that on page no.243 of Ex.PW28/B there are various entries for purchase of cement during the period 1990-91 towards purchase/ payment of stone dust and grit account for the G.K. site amounting to Rs.2,68,351/- and corresponding transfer entry in the stone dust and grit account of Daryaganj site is at page 244. Witness says that the said entries were only for the purpose of adjustment of the books of account at the end of the year.
63. PW28 further states that the balance sheet Ex.PW28/C, profit and loss account Ex.PW28/D, details of common expenses Ex.PW28/E and construction account Ex.PW28/F for the year ending March 1991 of M/s Ashoka Builders and Promoters (DA1) bearing his signatures and stamp of his firm in token of conducting audit of the accounts of said firm.
64. PW29 is Trilochan Singh who deposed that he is working as building contractor since 1980 and he had done the construction work for M/s Ashoka Builders at its site GK-I, New Delhi and he mainly dealt with its partner A-5 Yogender Gupta. Witness states that when he commenced the construction work at the site of said property, some construction already existed at the site and at that time some portion in the building were demolished and they had done work accordingly. He further states that construction in the building was commenced some time in year 1989-90 and it took around 1½ years for structure and then he left the work. PW29 states that he had done only the structure work of the building and its structure consists of basement and upto third floor.
65. PW34 is B.D. Dhawan who deposed that in the year 2000 he was posted as Sub Registrar at Asaf Ali Road Sub Registrar Office and he joined CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 31 the investigation of the present case with CBI. On seeing letter dated 20.11.2000 Ex.PW34/A addressed to M.S. Singhal, DSP, CBI, PW34 deposed that he wrote said letter vide which he provided information regarding sale deed dated 04.08.1988, registration no.5879, Vol. No.6172 and page no.1-200.
66. PW36 is Surender Malik who deposed that in the year 2000 he was posted at ACB Branch of CBI as Inspector. Witness says that IO of this case M.S. Singhal, DSP directed him to seize certain documents of the present case and he accordingly seized those documents from B-23, G.K.-I, New Delhi from one Mr.Baldev Oberoi vide production-cum-seizure memo already Ex.PW9/A.
67. PW39 is V.S. Chauhan who deposed that in the year 2000 he was working as Eviction Inspector, Directorate of Estates, Nirman Bhawan, Ministry of Urban Development. Witness says that on being requisitioned by CBI, he had gone to CBI office and met IO DSP M.S. Singhal who seized certain documents vide seizure memo dated 03.11.2000 Ex.PW39/A and he became witness to the seizure of those documents mentioned therein.
68. Last witness examined by the prosecution is PW40 Sh.Madhu Sudan Singhal who stated that in year 2000 when he was posted as Deputy Superintendent of Police, ACB, CBI he was entrusted investigation of the present case. He refers to FIR dated 24.08.2000 Ex.PW40/A. PW40 further deposes regarding seizure of different documents vide production-cum- seizure memos referred to in his evidence. He further deposes that during the investigation by a letter dated 07.09.2000 addressed to the Commissioner of MCD he requested for deputing a team of engineers for technical examination of the building in question in respect of unauthorized constructions, said letter is Ex.PW40/C. PW40 says that thereupon he received a letter dated 09.11.2000 Ex.PW40/D as well as letter dated 30.11.2000 from the office of CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 32 Chief Engineer, MCD addressed to DIG, CBI which is Ex.PW40/E as well as another letter dated 15.12.2000 issued by PW40 to Additional Commissioner (Engineering), MCD which is Ex.PW40/F. PW40 further testifies that during the investigation he deputed then Inspector Alok Kumar, Inspector Shobha Dutta and others for carrying out videography and still photography of property no.B-23, G.K.-I, New Delhi. PW40 says that he had visited the property in question with Technical Committee deputed by the Commissioner of MCD to enable them to carry out their inspection work. PW40 says that Technical Committee gave its report regarding violation of building bye laws and other technical aspects. Witness states that he has also collected sanction orders for prosecution of public servants and officers of MCD and thereupon on completion of investigation he filed charge sheet which is Ex.PW40/G.
69. During the course of trial accused no.4 Umesh Gupta expired on 21.04.2021 and consequently trial qua accused no.4 stood abated vide order dated 13.08.2021.
70. After completion of prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded. At this stage accused no.1 could not appear physically in the court as he suffered an heart attack. This court by order dated 22.11.2021 in view of the judgment of Supreme Court in Basavraj R. Patil vs. State of Karnataka 2000 Cri.L.J. 4604, permitted the answers of the accused to the questions of incriminating evidence, put to him be filed through his advocate along with his affidavit.
71. Accused no.1 R.N. Rastogi who was working as ZE, MCD, South Zone at the relevant time, denied all the circumstances and evidence put to him in his statement us/ 313 Cr.P.C. and stated that D Form could be issued even if the building has been partially constructed. Accused no.1 stated that document Ex.PW10/B and Ex.PW10/C are false documents. In CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 33 response to question no.140 accused no.1 stated that in case of unauthorized construction being raised against the sanctioned building plan, JE is not required to mention minor or major deviations in FIR/show cause notice or even in demolition notice at the time of recommending the action. He further states that proceedings of Technical Committee was a fabrication of evidence. PW7, PW12, PW18 and PW22 who were officials of MCD have not supported the prosecution case.
72. Accused no.1 further states that he was posted ZE(B) in South Zone form 13.03.1989 to 11.01.1990. Before issuing the D Form, JE had to inspect the site and put the inspection report to ZE for approval. D Form is to be issued for sanitary and water supply fittings and it is not necessary to construct all the floors as allowed under sanctioned building plan. After constructing some of the floors completely, owner of the building can apply for D Form. Accused no.1 further states that as per the rules D Form can be issued if the construction of the building is not in violation of building bye laws and sanctioned building plan. Accused states that inspection of the building was carried out by concerned JE and having found that there was no non-compoundable deviation in the building at that point of time he had put inspection report before him for approval and he accordingly granted sanction.
73. Accused no.1 states that he never visited the site nor met with the owners/builders of the building and there is no allegation against him of having received any bribe money for issuance of D Form. No departmental action was ever taken against him and he has been falsely implicated in the present case. Accused no.1 did not lead any evidence in defence.
74. Accused no.2 S.B. Singh who was working as JE at the relevant time has also denied the incriminating evidence put to him, in his statement CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 34 recorded u/s 313 Cr.P.C. Accused no.2 also states that D Form could be issued even if the building is partly constructed. Accused further states that documents Ex.PW10/B and Ex.PW10/C are false documents. He further states that there is no necessity of mentioning the extent of deviation in the FIR/show cause notice etc. while recommending the booking of the property by JE. While denying the entire prosecution case accused states that prosecution case is false and PW12, PW18 and PW22 have not deposed against him with regard to procedure for issuance of D Form. Accused no.2 further states that on the application for issuance of D Form, he inspected the building, which was partly constructed and at that time there was no deviation. D Form was issued by adopting prevailing rules and regulations which was approved by ZE(B) on 11.12.1989. Accused states that CBI has not examined any witness regarding deviation at the relevant time when D Form was issued. Accused no.2 has also not led any evidence in defence.
75. Accused no.3 is Vinod Kumar who was working as JE Building who has also denied the evidence of prosecution or stated to be of matter of record. Accused no.3 states that the report of technical committee is a fabrication of evidence. Accused no.3 however admitted that he had issued show cause notice dated 09.04.1990 Ex.PW12/E and same was even signed by ZE in token of approval. He states that said notice was even written by him. Accused no.3 further states that demolition order was issued at his initiative as he found non-compoundable deviation existing in building against the building plan. Accused says that it was also signed by the ZE in token of approval after satisfying himself. Accused no.3 further states that it is matter of record that he recommended for refusal of completion certificate and same was approved by the then ZE. Thereafter formal letter for refusal of grant of CC was sent to builder/owner on 15.01.1990 under the signatures of CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 35 then ZE.
76. Accused no.3 further challenged the sanction order for his prosecution Ex.PW21/A by stating that same was issued without due application of mind and in a mechanical manner. With regard to the responsibility of JE for checking the unauthorized construction, accused no.3 states that the concentration of JE in that ward was for site inspection in unauthorized colony and therefore his visits were not as frequent in regularized large area. Accused no.3 further states that construction of the building in question continued even after his tenure as JE in the concerned ward i.e. after August 1990. Accused no.3 also stated that the technical committee proceedings were false and fabricated. He also states that photography and videography proceedings are also fabricated.
77. Accused no.3 further stated that there is no evidence of any malafide intent on his part showing his conspiracy with other accused persons. D Form was issued by S.B. Singh, then JE and R.N. Rastogi, ZE on 11.12.1989, when he was not posted in the concerned ward. Accused no.3 states that M/s Ashoka Builders applied for grant of CC on 05.01.1990, thereupon he visited the site and from bare examination of building from outside, he found the building to be incomplete and therefore he recommended for refusal of grant of completion certificate. He states that it is prosecution case itself that CC was refused on his recommendation. Accused no.3 states that when he visited the site at B-23, GK-I he found deviation in the construction and therefore booked the property vide FIR dated 09.04.1990 and show cause notice dated 09.04.1990 was issued by him and thereafter he went at the site for service of notice. However builder/owner refused to receive the show cause notice and therefore he after getting permission approved for affixation of notice at the site, affixed the notice at the site on CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 36 11.04.1990. Relevant endorsement in this regard were appended on the back side of the show cause notice which is Ex.PW12/DD.
78. Accused no.3 states that no reply to that show cause notice was given within stipulated time and therefore he recommended for issuance of notice u/s 343/344 of DMC Act for demolition by noting dated 18.04.1990 Ex.PW12/DE. Same was approved by then ZE(B) and accused no.3 stated to have visited at the site for service of notice. However builder/owner refused to receive demolition notice. He after getting approved permission to affix the demolition notice, affixed the notice at the site on 03.05.1990, the endorsement of which is on the overleaf of demolition notice Ex.Pw12/DG. Accused no.3 states that he rather recommended for more aggressive action to be taken which was approved vide Ex.PW12/DH by ZE(B) on 10.05.1990.
79. Accused no.3 states that above said documents Ex.PW12/DD, Ex.PW12/DE, Ex.PW12/DG and Ex.PW12/DH were deliberately withheld by the CBI and same were produced later on the directions of the court. He states that in the meantime builder obtained the stay order dated 12.04.1990 against the demolition, sealing, disconnection of electricity and water supply. Accused no.3 states that thereafter it revealed to him that unauthorized construction was raised even under the garb of stay order, therefore he promptly reported the same to the senior officer and approached the court for appointment of local commissioner, as reflected from internal noting of ZE(B) dated 06.07.1990 contained in file Mark X at page 12C. That document was also withheld by the prosecution.
80. Accused no.3 states that he filed the application in the court and obtained order dated 20.07.1990 for appointment of LC and by following up the matter, when LC did not visit the site as per the terms of the order of the court, upon his initiatives by moving another application, he obtained fresh CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 37 directions for spot visit by another LC and filed the affidavit in the court on 25.07.1990 which is a relied upon document of prosecution i.e. D-20 (page 111 and 112). This fact has also been admitted by the IO in his deposition. Accused no.3 states that above said facts and additional documents containing bills for purchase of construction material in huge quantity, show that unauthorized construction continued at B-23, GK-I even in July 1990 and even thereafter which falsifies the prosecution case that building was complete by March 1990.
81. Accused no.3 further stated that he was exonerated in the departmental enquiry by the vigilance department of MCD on 25.07.1995 and that fact has been admitted by the IO in his deposition. However documents concerning to his departmental enquiry were withheld from the court. Accused no.3 further states that he has never abused his official position and has never entered into any conspiracy with any of the accused. He says rather he pursued the matter in the interest of MCD against builder/owner in best possible way and continued taking extreme actions as per law. He states that there is no allegation of demand or acceptance of bribe against him and he has been falsely implicated. Accused no.3 has also not led any evidence in his defence.
82. In statement of accused no.5 and 6 they have also denied the entire prosecution case and taking the plea that construction in the building continued till late 1990 or early 1991. With regard to evidence of alleged raising of unauthorized construction both accused no.5 and 6 have expressed their ignorance by stating that their partner late Umesh Gupta (A-4) had been dealing with the MCD during the relevant time. With regard to selling of shops, office space and flats in the property in question while that fact has not been disputed though it is stated by these accused that payments of sale CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 38 consideration was made to the firm M/s Ashoka Builders and Promoters and not to accused no.5 and 6 respectively. Accused no.5 and 6 have also stated that construction in the building was done in consonance with plans and rules and D Form could have been issued even when the building was partially constructed and there being no non-compoundable deviation.
83. Both accused no.5 and 6 further stated that entries in the books of account of the firm as deposed by PW28, were made for the purpose of adjustment at the end of the year. There was no actual transfer of material from GK site to Daryaganj site and construction at B-23, GK-I continued till late 1990 or early 1991. It is stated that evidence of report of Technical Committee is fabrication at the instance of CBI and similarly evidence of taking videography and photography at the site was only a creation of fabricated evidence by CBI. It is stated that CBI has falsely implicated accused no.5 and 6 who had never dealt with MCD with regard to property in question. It is stated that no one had made any complaint against any statutory authority, agency with regard to property in question. Moreover CBI also did not make any complaint nor sought permission from the court as long as matter remained sub judice there. It is stated that CBI had no authority or jurisdiction to register the present case which was done deliberately to falsely implicate them.
84. It is stated that concerned civil court had granted stay order in April 1990. Prosecution had taken note of the fact that civil court proceedings with regard to property in question, still CBI registered the present case only when the civil proceedings were over in year 1999. It is stated that there is ample evidence to show that raw material continued supplied at the site of the property in question till late 1990 and early 1991, falsifying the prosecution case. It is stated that accused no.5 and 6 have never been beneficiaries of CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 39 proceeds emanating out of the sale deeds in respect of property in question, each and every sale deed was executed between Ashoka Builders and Promoters and respective buyers. No buyer during relevant time or till date made any complaint against accused no.5 and 6. Legal recourse was taken by approaching the competent civil court for redressing the proposed action of the MCD at relevant time and property in question is still in existence. It is stated that CBI has deliberately registered the case in year 2000 whereas the violations were got regularized from MCD under its Amnesty scheme by depositing of compounding charges of Rs.3,71,430/- on 26.04.1999 by pay order no.503148 accepted by the MCD vide receipt no.763016 dated 29.04.1999. Further amount of Rs.83,103/- was demanded by the MCD after inspection of the property in March 2000 which was accepted by the MCD vide receipt no.014009 dated 26.03.2000. Accused non.5 and 6 have also not led any evidence in defence.
85. I have heard ld. PP for the CBI, Sh.Pradeep Teotia, ld. Counsel for accused no.2 and Ms.Rebecca John, ld. Senior counsel for accused no.3 as well as Sh.Vishal Gosain, ld. Counsel for accused no.5 and 6. I have also gone through the written arguments filed by CBI as well as filed on behalf of accused no.1, accused no.2 as well as written synopsis filed on behalf of accused no.3 and accused no.5 and 6. I would discuss in succeeding paras of this judgment, the arguments made at Bar as per the relevant context.
86. Having considered the entire facts, evidence and material on the record. At the outset the important points for consideration are :
(i) Whether offence of cheating is made out as against accused no.5 and 6 who are facing substantive charge of offence u/s 420 IPC?;
(ii) in the absence of any provision fixing vicarious liability of CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 40 the partners, whether partners in the firm can be fastened with the criminal liability of offence of cheating, if any?
(iii) Whether public servants in this case i.e. accused no.1, 2 and 3 are liable for offence u/s 13(1)(d) of P.C. Act?;
(iv) Whether there is sufficient evidence establishing the criminal conspiracy among all the accused persons?
87. All these points of determination would be considered in the light of evidence as come on the record. Let us first take up the issue of offence of cheating u/s 420 IPC, the charge which was substantially framed against accused no.4 to 6. It has already been noted above that accused no.4 has expired leaving only accused no.5 and 6 to face trial.
88. Ld. PP for the CBI has submitted that in all prosecution has examined 40 witnesses who have proved the charge against the accused persons establishing the commission of offence of cheating by accused persons in conspiracy with each other. He submits that prosecution case has been established as against each of the accused persons including public servants.
89. Sh.Vishal Gosain, ld. Counsel for accused no.5 and 6 has at the outset stated that though there is a substantive charge u/s 420 IPC against accused no.5 and 6 however perusal of the contents of the charge and the evidence on the record would clearly indicate that there is no evidence of inducement, misrepresentation or delivery of property as against accused no.5 and 6. He submits that no inferences can be drawn for proving the charge as prosecution is required to prove the case beyond reasonable doubt. Ld. Counsel for accused no.5 and 6 further submits that there is no complaint from the MCD to the effect that there was any inducement for issuance of sanction plan regarding property no.B-23, GK-I, New Delhi. Evidence of CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 41 MCD officials examined by the prosecution or even private witnesses have not stated anywhere of having been cheated. Ld. Counsel submits that section 420 IPC is an aggravated form of offence of cheating defined in Section 415 IPC and there being no specific evidence at all as against accused no.5 and 6 for charge of cheating.
90. Ld. Counsel for accused no.5 and 6 went on to submit that it has come on the record that issues with regard to taking sanction for construction at the site and issues related to MCD were being looked after by late Umesh Gupta. Investigating officer (PW40) M.S. Singhal has also admitted that fact in his cross-examination. As such there is no evidence showing accused no.5 and 6 having made any misrepresentation to MCD or its officials nor there is any evidence showing that accused no.5 and 6 have been benefited from the proceeds of sale of property in question. Reliance has been placed to the judgment of Hon'ble Supreme Court in V.P. Srivastava vs. Indian Explosives Ltd. and others (2010) 10 SCC 361; Dilip Kaur and others vs. Jagnar Singh and others (2009) 4 SCC 696; Devinder and others vs. State of U.P. (2009) 7 SCC 495; B. Suresh Yadav vs. Sharifa Bee and others (2007) 3 SCC 78 and V.Y. Jose and others vs. State of Gujarat (2009) 3 SCC 78.
91. Counsel for accused no .5 and 6 further stated that PW31 in his cross-examination dated 29.07.2019 had stated that he had applied for trading licence/commercial/house tax to MCD for running business from the property in question and other occupants in the building have also been running businesses after having obtained trade licence from the MCD. It is submitted that property tax receipts Mark DX-3 and other receipts clearly indicate that property was being used for commercial purposes, well before accused came into picture. He further submitted that in year 1998-99 government came out CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 42 with the Amnesty scheme to regularize unauthorized construction, therefore the requisite charges for property in question of Rs.3,71,430/- by pay order no.503148 and another amount of Rs.83,103/- as demanded by the MCD was deposited. Receipts Mark DXX and DX4 establish this fact as come in the cross-examination of PW-31. Ld. Counsel submits that this clearly show that the property was regularized by the MCD itself.
92. Before I discuss the evidence it would be appropriate precisely understand the legal requirement for proving the charge of cheating punishable u/s 420 IPC. Section 415 of the Indian Penal Code which defines offence of 'cheating', requires deception either by "dishonestly" or "fraudulently" any one and thereby:
(a) including that person to :
(i) to deliver any property to any person, or
(ii) to consent that any person shall retain any property OR
(b) intentionally inducing to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person, anybody's mind, reputation or property. (See: Mahadeo Prasad v. State of W. B., AIR 1954 SC 724 ; Ramautar Choukhany v. Hari Ram Todi1982 CRI. L. J. 2266; G. V. Rao v. L.H.V. Prasad, (2000) 3 SCC 693 etc.).
93. So, deception of any person is common requirement of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction "or". Sec. 415 IPC does necessarily relate to property. While the first part of the definition relates to property, the second part need not necessarily relate to property. Above stated CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 43 definition of cheating can not be confined to any definite set of situations/ circumstance. There can be numerous different facts showing false promise, misrepresentation etc. but each circumstance may not attract penal liability of offence of 'cheating'. There is distinction between mere breach of contract and the offence of cheating. Offence of cheating require fraudulent or dishonest intention of the accused right at the beginning of the transaction, that it is time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. Therefore facts of each case needs to be examined wholistically to see if above mentioned ingredients are made out or not. Section 416 to Section 424 IPC contemplate different situations of cheating.
94. In this case we are concerned with offence of cheating punishable under section 420 IPC for which accused persons are charged with. In order to appreciate the rival submissions, made at Bar, it would be necessary to consider on the background of the factual position as to whether offence punishable under Section 420, IPC is made out. As stated above section 420 IPC deals with certain specified classes of cheating. It deals with the cases whereby the deceived person is dishonestly induced to deliver any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security. The definition of the offence of cheating embraces some cases in which transfer of property is occasioned by the deception and some in which no transfer occurs. Deception is the quintessence of the offence. The essential ingredients to attract Section 420 are : (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and the (iii) means rea CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 44 of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420. (See Bashirbhai Mohamedbhai v. State of Bombay AIR 1960 SC 979; Hira Lal Hari Lal Bhagwati v. C.B.I., New Delhi 2003 CRI. L. J. 3041 (SC).
95. As was observed by Apex Court in Shivanarayan Kabra v. State of Madras AIR 1967 SC 986 it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things, it is not always possible to prove dishonest intention by any direct evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn.
96. As I stated above it be noted that word 'property' occurring in section 420 I. P. C. does not necessarily mean that the thing of which a delivery is dishonestly desired by the person who cheats, must have a money value or a market value, in the hand of the person cheated. Even if the thing has no money value, in the hand of the person cheated, but becomes a thing of value, in the hand of the person, who may get possession of it, as a result of the cheating practiced by him, it would still fall within the connotation of the term property in section 420 I.P.C. (Ishwar Lal Girdhar Lal Parekh v. State of Maharashtra AIR 1969 SC 40).
97. Keeping the above said legal proposition in mind, if we examine the evidence, first and foremost aspect noted here is that it is not disputed fact property no.B-23, GK-I, New Delhi (property in question) has been purchased by M/s Ashoka Builders and Promoters, which is a partnership firm in which Umesh Kumar Gupta (A-4 since expired), Yogender Gupta (A-5) and Sudhir Gupta (A-6) were active partners. This firm purchased the property by sale CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 45 deed dated 04.08.1988 from Baba Jitender Singh Bedi, the information of which was provided to the IO by the concerned Sub Registrar (PW34) by letter dated 20.11.2000 Ex.PW34/A. Though having purchased the property on 04.08.1988 still the application for sanction of addition and alteration in the building was moved in MCD by Jitender Singh Bedi on 25.08.1988. Said application along with the enclosures of 28 pages are collectively Ex.PW4/A.
98. Perusal of application Ex.PW4/A would show that applicant Jitender Singh claimed himself to be the owner of the property whereas he had already sold it to M/s Ashoka Builders and Promoters through their partners. More importantly perusal of the application dated 25.08.1988 for addition/alteration in the property in question it is stated that such addition/ alteration is to be made for residential purpose only. Applicant applied for creation of basement, ground floor, mezzanine floor and first floor along with Barsati floor as per the specifications (Appendix A of Ex.PW4/A). This application is also annexed with the affidavit of J.S. Bedi who had no proprietary interest in the property at that time but still gave affidavit and indemnity bond with the application Ex.PW4/A claiming himself to be the owner of the property, and also undertaking that construction would be carried out as per the plan sanctioned by the MCD.
99. Previous sanction plan dated 11.10.1966 Ex.PW4/B also shows that building was being used for residential purpose. Documents like demolition plan Ex.PW4/F and area wise/details of site and elevation sheet for sanction plan Ex.PW4/G as well as building plan of each floor Ex.PW4/H clearly show that plan for addition/alteration in the building was sought only for residential purpose in which basement and mezzanine floor was shown to be used for domestic storage, whereas ground floor, first floor and Barsati floor was to be used for residential purposes.
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100. After scrutiny of the proposal and clarifications sought, as deposed by PW-4 in his evidence and deposit of betterment charges, ultimately proposal for addition/alteration in the building in question was approved on 13.09.1988 and sanction of building plan was released on 21.09.1988 which is Ex.PW4/E (copy of the same is also proved as Ex.PW12/J). Now this sanction letter dated 21.09.1988 has been received by Sh.Umesh Gupta (accused no.4 since expired) bearing his signatures at point B.
101. Above said facts and documents are not disputed. Two things are clear from the above documents and evidence. Firstly, the property in question having been sold by Jitender Singh Bedi, still application for sanction of addition/alteration in the building was moved by him but not firm M/s Ashoka Builders and Promoters or by its partners, for no justifiable explanation. Moreover in the documents filed along with the application said Jitender Singh Bedi has claimed to be the owner whereas he by then was no more owner in the property in question. He is also giving undertaking or indemnity bond etc. for raising construction for alteration etc. as per sanction plan and bye laws of MCD. Whereas undertaking etc. was required to be given by partners of M/s Ashoka Builders and Promoters. Importantly said Jitender Singh Bedi was named accused in FIR of CBI, but later he was neither made accused nor witness. That is a lapse on the part of Investigating Officer. But still these facts show intention to make alteration/ addition in property in question for use/purpose as per application for sanction of building plan by construction as per bye laws, was not there right from the day when application Ex.PW4/A was filed in MCD. There can hardly be any justification for it, when the property was already purchased by said Firm on 04.08.1988.
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102. When such addition/ alteration in the building was sanctioned the sanction plan has been collected by accused no.4 Umesh Gupta. Secondly, the sanction plan was approved only for residential storage and use, none of the floor in the building was permitted to be used as market or for commercial purposes. This fact is matter of record and not disputed. Still construction in property was raised in such a manner that shops were constructed at basement and ground floor. Floor plan for basement was for "domestic storage" but shops were constructed at basement. This show intention to construct the building in such a way to change its use and purpose, right from the day of starting construction at the site. There is no document on MCD record proved in evidence showing M/s Ashoka Builders and Promoters or its partners informed the MCD, at any point of time, after obtaining sanction order dated 21.09.1988 Ex.PW4/E, to use the property for developing market or commercial place along with residential use.
103. Another important aspect which is again not disputed by accused no.4 to 6 is the fact that firm M/s Ashoka Builders and Promoters applied for a credit facility in Indian Bank, Chandni Chowk Branch on 27.01.1988 i.e. after sanctioning of addition/alteration plan from MCD. In this application moved by the firm M/s Ashoka Builders and Promoters it was written that it is a partnership firm consisting of three partners namely Yogender Kumar Gupta, Sudhir Kumar Gupta and Umesh Kumar Gupta. It is claimed in the application that the firm has been developing different projects and in the application it is stated that now the said firm through their partners is developing a multi storey residential-cum-commercial complex in Greater Kailash-I (property in question) and sought loan of Rs.1 crore for the purpose of construction. Admittedly said loan was approved by the concerned bank. Letter dated 20.02.1989 of the partners of Ashoka Builders to the Manager of CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 48 Indian Bank is also on the record wherein a request has been made for release of the amount under the credit facility for the purpose of raising construction at the property in question. All these documents were collectively handed over by the Manager of the said bank along with letter dated 23.11.2000 Ex.PW6/A. Among other documents there is also a partnership deed dated 15.03.1982 of M/s Ashoka Builders and Promoters which is Ex.PW6/C. Perusal of the same would show that above said three partners have been active partners in carrying on the business of the said firm, wherein partner Yogender Gupta (A-5) and Sudhir Gupta (A-6) are partners to the extent of 40% each and Umesh Gupta (A-4) being partner to the extent of 20%. This deed also mentions that profits and loss would be gained by those partners in the above said proportion.
104. Now from the above mentioned evidence important fact came out is that the firm M/s Ashoka Builders and Promoters knowing well that MCD has sanctioned addition/alteration in the building only for residential use and storage, still that firm obtained loan of Rs.1 crore from Indian Bank by giving a false representation that the firm is a developing a residential-cum- commercial project at property in question. Such application has been moved immediately after sanction plan issued by the MCD showing the intention of the above said firm and their partners for raising commercial as well as residential building, right from the beginning.
Alleged unauthorized construction and issuance of D Form
105. Now comes the question determining whether has been any unauthorized construction raised in the property in question and whether the issuance of D Form was as per rules/bye laws of MCD. Immediately after sanction order issued by the MCD construction was raised at the property in question. PW-29 Trilochan Singh has deposed in his evidence that CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 49 construction commenced somewhere in year 1989-90 and it took around one and a half year for construction to be constructed and construction was raised in one go, consisting of basement upto third floor. I have already stated above that shops were constructed in basement and ground floor of property, right from the inception of construction, which by itself was against sanction plan and was a case of misuser of property.
106. At this stage, I would like to note here that this court is examining the evidence to see, if charge of offence of cheating u/s 420 IPC is established or not. Therefore all the facts are to be assessed, including the question of misuser of property and raising of unauthorized construction over it. Issue of unauthorized construction etc. therefore is only one of circumstances beside others to see offence u/s 420 IPC is made out or not. Court would therefore confine consideration only to see if unauthorized construction was done by misusing the purpose and raising additional floors etc., not for fixing any liability or penalty under the DMC Act, which is not in issue before this court nor within jurisdiction of this court. Evidence on record of this case are to be assessed for limited purpose to see whether or not raising of unauthorized construction (including misuser and constructing additional floors) was done to deceive authorities and general public to gain undue benefits. This to mind is most important and complexed issue involved in this matter, therefore I would appreciate the evidence in the light of submissions made at Bar.
107. Coming back to evidence, it is a matter of record that on 11.12.1989 firm M/s Ashoka Builders and Promoters applied for issuance of D Form and on the same day said D Form was issued under the signatures of A-2 S.B. Singh, the then JE(B) which was approved by A-1 R.N. Rastogi, the then ZE(B). In this context important here is to refer the evidence of PW20 CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 50 M.R. Mittal who proved Circulars Ex.PW20/A, Ex.PW20/B beside Circulars Ex.PW35/B laying down the duties of JE and ZE respectively regarding issuance of D Form etc. PW20 in his deposition has stated that issuance of D Form is meant that there is no non-compoundable deviation existing at the site. Circular Ex.PW20/A mentions the duties of the JE. Para 6 of the same mentions that JE is supposed to inspect the site and compare the fittings have been complete and as per sanctioned plan and then he has to submit his report to AE. It is also mentioned that in case of any misuse of the property noticed by JE, he has to give information in this regard. Similarly Circular Ex.PW20/B also lays down the duties of ZE and in para 3 Ex.PW20/B is it mentioned that at the time of issuance of C and D Form building is to be thoroughly checked for deviation and C and D Form should not be issued if there are serious violations/ deviations.
108. PW22 Vijay Kumar Kadyan has also deposed that D Form is to be issued only when the water supply fittings and sanitary fittings in the building are complete. This witness also deposed that building is to be checked before issuance of such form and only after verifying that construction in the building is as per sanctioned plan and bye laws of MCD, D Form is to be issued. But surprisingly in this case D Form was issued on the same day when it was applied i.e. 11.2.1989.
109. From the above discussion of evidence it is clear that sanction plan was issued on 21.09.1988 and on 11.12.1989 D Form was sought to be issued from the MCD, whereas by then the construction at the property in question was not only incomplete but unauthorizedly raised also. Issuance of D Form on the day it was applied was contrary to the rules of the MCD. It is matter of record and admitted document Ex.A2/P8 which indicate that applying D Form on 11.12.1989 and issuance of the same on the same day is CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 51 admitted by the accused. Nothing came in the cross-examination of PW20 or PW22 in this regard.
110. Arguments have been made on behalf of accused no.1 and 2 as well as on behalf of accused no.5 and 6 that there is no evidence on record, specifically pointing of unauthorized construction raised at the stage when D Form was issued on 11.12.1989. Fact that construction at the property had started in such a way to misuse it for constructing a market at basement and ground floor and commercial space at first floor, in itself was against the sanction plan. That by itself make it an "unauthorized construction". I would discuss the issue of registration of RC by CBI by approximately 10 years later to raising of construction, little later in judgment. But when investigation in the matter had started only in year 2000, it was otherwise not possible to collect any evidence of exact deviation etc. in building at the stage of issuance of D Form.
111. In this context important is to refer the evidence of PW12 Rakesh Kumar who deposed that show cause notice u/s 343/344 of DMC Act was issued against firm M/s Ashoka Builders and Promoters on 09.04.1990 which is Ex.PW12/E. This notice indicates that same was issued by A-3 Vinod Kumar while he was working as JE after approval of ZE. It is mentioned in the said show cause notice that there was deviation/excess coverage in the raising of construction against the sanctioned plan. One cannot therefore say that all such deviations etc. in construction was done after issuance of D Form and not prior to it. It was otherwise not possible. Even if it is accepted building was not complete by 11.12.1989 when D Form was issued. Still there is evidence on record showing completion certificate for building was sought after few days of 11.12.1989.
112. PW12 Rakesh Kumar also deposed that completion certificate CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 52 was applied in respect of property in question and he referred to completion certificate register Ex.PW12/G. PW12 also proves the application for issuance of completion certificate Ex.PW12/H along with certification of the architect. PW12 deposes that as per noting sheet dated 15.01.1990 Ex.PW12/I it was noted by the then JE (A-3) that he had inspected the property in question and found that building is not finished, therefore he proposed for refusing of issuance of completion certificate. Such note Ex.PW12/I was approved by the then ZE and thereupon completion certificate was refused to M/s Ashoka Builders and Promoters.
113. PW18 R.K. Bhattacharya has also deposed regarding issuance of show cause notice dated 09.04.1990 carbon copy of which is already exhibited as Ex.PW12/E and photocopy of the same is proved to be Ex.PW18/A. Similarly this witness also refers to demolition notice dated 18.04.1990, the carbon copy of which is Ex.PW12/F and photocopy of which is Ex.PW18/B. PW18 also refers to the letter dated 05.01.1990 issued by the MCD for intimating M/s Ashoka Builders and Promoters for refusal of completion certificate. This document is Ex.PW12/DB, wherein also it is mentioned that construction in the building was not completed.
114. Similarly, on 18.04.1990 demolition notice was issued for same reasons which is Ex.PW12/F. It is also mentioned in the demolition notice that construction is being raised against BBL and cannot be regularized/compounded. These documents clearly show that not only construction was raised for commercial as well as residential purposes in utter misuse of the property but also it was being raised unauthorizedly. PW12 also deposes regarding issuance of FIR Ex.PW12/D1 for raising of unauthorized construction of non-compoundable nature.
115. Above evidence and the documents clearly establish two CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 53 important aspects. Firstly, unauthorized construction was being raised at the site and D Form was issued against the rules. Secondly, firm M/s Ashoka Builders and Promoters through partners applied for completion certificate Ex.PW12/H whereas by then the construction was not complete. Even during trial it is the case of accused no.5 and 6 that construction completed by end of 1990 or early day of 1991. If that was the situation there is no explanation as to why completion certificate was applied to MCD on 05.01.1990. This completion certificate has been sought within less than one month of issuance of D Form on 11.12.1989.
116. If as per accused no.5 and 6 building was not complete, why there was hurry for getting D Form or Completion Certificate issued from MCD in early months of 1990, whereas admittedly construction continued and building material kept coming to site/property in question by late 1990 or even upto early 1991. This aspect assume importance for charge for offence u/s 420 IPC. Whether there was "unauthorized construction" raised at the site, if so at what stage, has limited bearing in facts of this case. More important is as to why D Form was issued and why Completion Certificate was sought to be issued, before completion of construction. There is evidence on record to show that such D Form and Completion Certificate was to be shown to prospective buyers of shops, commercial space and flats, constructed in property to portray that building has been constructed as per sanction plan and MCD Bye law, whereas actually it was not the case.
117. This brings me to discuss the evidence of those witnesses examined who have purchased the shop/flat or commercial space in property in question. PW3 is Dev Senani, who stated that an office space at first floor of the property was purchased by an agreement to sell dated 13.04.1994 which is Ex.PW3/B, GPA is Ex.PW3/C. PW8 is Manish Ahluwalia who has CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 54 also deposed of having purchased a shop no.G-15 at ground floor of the property in question vide a sale deed dated 24.12.1990 Ex.PW8/B. PW9 Baldev Oberoi purchased shop no.B-23 by an agreement to sell dated 30.11.1990 Ex.PW9/B. Another agreement to sell is dated 28.03.1990 which is Ex.PW9/C and receipts are Ex.PW9/D. PW11 is Vimal Kumar Saigal who purchased shop no.G-12 at ground floor of the property in question by sale deed dated 14.05.1991 Ex.PW11/A and another shop G-12A by sale deed dated 14.05.1991 Ex.PW11/B. Similarly PW13 Sanjeev Jain purchased shop no.G-12B by an agreement to sell dated 02.02.1990 Ex.PW13/A.
118. Now examining the evidence of above mentioned witnesses along with the documents of sale, first of all it be noted that above discussed documents of sale are regarding selling of shops/commercial spaces during the time when the completion certificate in the building was not issued. Perusal of the sale documents would also show that it is mentioned that the construction has been raised by the builder as per building bye laws and house tax is being paid. Whereas by then the construction of shops and commercial space was against the sanctioned plan. Beside this, these sale documents further show that the sale documents were executed by one of the partners of M/s Ashoka Builders and Promoters who have also been named as Ashoka Arcade namely Sudhir Gupta. There is authority letter dated 30.03.1994 signed by Yogender Gupta and Umesh Gupta, authorizing Sudhir Gupta for executing documents of sale.
119. Moving further, PW14 is Aseem Chaudhary who has testified about purchasing of flats no.D1 and D2 in property in question by sale deeds dated 15.07.1992. PW16 is Rakesh Chadha who has also stated to have purchased flat no.C-2 in the property in question by an agreement to sell dated 10.11.1993 Ex.PW16/B and dated 15.11.1993 Ex.PW16/C. PW19 is K.B. CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 55 Sachdev who has deposed that and his family members have also purchased flats in the property in question. This witness in his deposition referred to eleven sale deeds Ex.PW19/B to Ex.PW19/L executed by M/s Ashoka Builders in favour of different family members of PW19.
120. So evidence of PW14, PW16 and PW19 show that in the same building flats were also being sold and there are sale documents on judicial record for sale of 14 flats which were constructed at second and third floor of the building. Construction of so many of flats was also not as per the sanctioned plan. Moreover PW19 has deposed that some of the flats sold to him by accused no.4 to 6 though was at second floor but in the sale documents it was mentioned as "mezzanine floor". PW19 stated that accused no.4 to 6 have informed him that they have so mentioned because in sanctioned building plan there is a reference of mezzanine floor. This witness also stated that he had seen the building plan and based on the same flats were purchased. PW19 stated that D Form was issued to the builder and therefore they presumed that the building is as per the sanctioned plan.
121. In the cross-examination of above mentioned witnesses nowhere the fact so asserted in their evidence have been disputed. Cross-examination was only on the issue of exact date of construction but more importantly the issue was that flats, commercial space and shops were being sold from property in question without obtaining completion certificate. As I have noted above the sale documents were executed by different partners of M/s Ashoka Builders.
122. Then PW25 is S.K. Kataria who had purchased shop no.LG-18 and stated that he produced the copy of documents of sale to the IO by seizure memo Ex.PW25/A and Ex.PW25/H and receipts are Ex.PW25/B to Ex.PW25/G. This witness also deposed that he was assured by accused no.4 CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 56 to 6 that shops in the property in question were as per the approved plan and that they would be given Form C and D at the time of possession, which they never gave. PW31 also proves purchasing of office space by sale documents Ex.PW31/A and other sale deeds Ex.PW31/A1 to A7. Similarly PW38 Gyan Prakash also stated to have purchased shop no.G-11, G-12 and G-12A by different sale deed dated 16.11.1990 Ex.PW38/B, Ex.PW38/D and sale deed dated 30.01.1991. PW38 has also deposed that he was assured by M/s Ashoka Builders and Promoters that construction in the building was as per rules and regulations and that they have already obtained D Form. Nothing came in the cross-examination of these witnesses to deny those specific facts as stated by these witnesses.
123. So from the above discussion of evidence of witnesses who purchased different portions in the property in question, it is clear that they were assured that construction is being done as per the sanctioned plan and that they have also obtained D Form. In some cases sale documents have been executed even prior to completion of construction of the building. All this atleast show that builders have wrongfully gained by selling shops, commercial space and so many flats in the building whereas the building was not constructed as per sanctioned plan or MCD bye laws. The construction in the building was raised as per the convenience and benefit of M/s Ashoka Builders and Promoters, completely ignoring MCD rules and bye laws. Important here to note that shops etc. were being sold during the time when civil proceedings challenging the MCD action for demolition/sealing etc. was pending in the court of law or later before Appellate Authority MCD.
124. Much emphasis has been given to the fact that none of the buyers of shops/flats etc. in the property in question have given any complaint of having been cheated or misrepresented in any manner. Such argument no CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 57 doubt appears to be convincing, but scrutiny of the evidence and documents on the record would clearly indicate that not only MCD was deceived but even buyers have been deceived by false representation given by M/s Ashoka Builders that shops, commercial space could be sold in that property and that the building is according to sanctioned plan of MCD. It is matter of record that M/s Ashoka Builders were very much aware about pendency of proceedings in the court of law but no permission was taken either from the MCD or court of law before selling such shops, commercial space or flats. Even if no one came forward to complain about it, question arises would it nullify or justify everything whatever being was done or whether the offence is not made out. Answer would be big no firstly because if the evidence on the record show the commission of offence, merely because that no one made the complaint till the time CBI registered the RC in this case in the year 2000 would not have much affect. There is a peculiar situation in this case as earlier MCD took legal action against the unauthorized construction and for that the proceedings were pending the civil court for a considerable period of time and later CBI on the basis of source information registered the RC. In such situation I am of the view that merely because that no specific complaint was filed, would not entirely wash away the evidence showing commission of offence.
125. Issue that there is a considerable delay in registration of RC after the completion of civil proceedings and that the said unauthorized construction having been covered under the Amnesty scheme, as the defence set up on behalf of accused no.4 to 6 would be considered by this court little later in the judgment but before that in the context of examining whether ingredients of offence of cheating are made out or not, it would be appropriate to note certain other circumstances.
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126. As noted above the construction in the building was not unauthorized only because of misuser of the building for constructing shops and commercial space against the sanctioned plan. Beside that there was unauthorized construction raised at the site. PW10, PW20, PW27 have been members of Technical Committee constituted after the registration of RC by the CBI. This Technical Committee was headed by M.M. Das, who could not be examined as he expired during the trial. In the evidence of PW10 and PW22 it has come that Technical Committee was constituted as per the orders of Commissioner of MCD consisting of different persons and they inspected the site and compared the original sanction plan and the existing building plan, drawn by a technical team of the MCD.
127. This report of Technical Committee is Ex.PW10/C, technical notes and observations are Ex.PW10/B. Perusal of the same would show that height of the building as existing was defective as per the MCD bye laws as well as Master Plan 2001. The basement area was more covered than permissible limit, there was encroachment of public road and it was mentioned in the report that the status of the building was unauthorized as the sanctioned building plan was revoked in 1994. As per the Annexure A of the said Technical Committee report the basement excess coverage was upto 1716.97 sq. feet out of which 1266.97 was non-compoundable, there was an excess coverage at the ground floor to the extent of 1987.36 sq. feet out of which 1537.36 sq. feet was non-compoundable. Similarly at first and second floor there was excess coverage of 1959.49 and 3466.88 sq. feet respectively and the entire third floor was not permissible therefore there was excess coverage of 5111.88 sq. feet. There was a fourth and fifth floor also and in that manner huge amount of unauthorized construction was raised. It was also noted that there were shops at basement and ground floor and office at CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 59 first floor and residential building at second and third floor and in this manner total area of all floors was 26301.85 sq. feet as against sanctioned area of 10153.91 sq. feet. Report is also annexed with the existing building plan.
128. In the evidence of PW10, PW20 or PW27 nothing has come in the cross-examination to say that the reports as given by the Technical Experts of the MCD was exaggerated or not in accordance with the existing building structure. Although this report has been disputed by the accused persons stating it to be fabricated report created at the instance of CBI. However on technical aspects as given in the report by comparing the sanctioned plan with existing structure, nothing has come in the cross-examination to show technical data of excess coverage mentioned in said report was in any manner fabricated. Reading of this report along with the photographs and videography. Videography and photography memo Ex.PW24/B1, 203 photographs Ex.PW23/B (colly.) and watching the CD containing videography of the building in question Ex.PW26/B1 makes it clear that structure as existing at the site was completely in violation of MCD building bye laws annexed with Technical Committee report and were also against the sanctioned plan Ex.PW4/E dated 21.09.1988 approved for that building.
129. The question whether there was any unauthorized construction or not is not basic issue involved in the present case. It is only one component of the entire controversy in this case. Primary question in peculiar circumstance of this case is to examine deceitful intention to wrongfully gain or not. I have already discussed herein above some of the circumstances indicating intention to misuse the property for wrongful gain out of it. There is evidence showing "unauthorized construction" continued even when matter went to the court of law. Here there is a necessity to discuss precisely evidence of PW12 Rakesh Kumar. I have already noted above that this CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 60 witness proved show cause notice dated 09.04.1990 Ex.PW12/E noting that there was a deviation of excess coverage against the sanctioned building plan at all the floors.
130. In cross-examination of PW12 it came on record that when M/s Ashoka Builders applied for grant of completion certificate on 05.01.1990 the property was inspected by A-3 Vinod Kumar, who found the construction of the building to be not complete and gave show cause notice Ex.PW12/E. Document Ex.PW12/I showing recommendation of A-3 Vinod Kumar for refusal of completion certificate and in the additional file it was shown that on the overleaf of show cause notice dated 09.04.1990 there was signature and writing of A-3 Vinod Kumar which is Ex.PW12/DC. This writing shows that builder refused to accept the notice. Thereafter JE got permission for affixation of the notice, which was affixed on 11.04.1990 as reflected from document Ex.PW12/DD. Even thereafter construction at the site continued. Document Ex.PW12/DH written at the instance of JE Vinod Kumar on 10.05.1990 that despite service of notice unauthorized construction was going on and no reply has been filed by the builder/owner. He in that note recommended for demolition action. After approval of the same, demolition notice was issued. Document Ex.PW12/DE which is again on the overleaf of original demolition notice show that even service of such demolition notice was refused by the builder at the site. Thereafter again permission was taken for service by affixation on 03.05.1990 at the site as reflected from Ex.PW12/DG. All these documents are contained in file Mark X, which was originally not relied upon by the IO, despite availability with the MCD. Later this file was taken on the record on the directions of the court.
131. Examining these documents clearly show that deliberate efforts were made to avoid the service of show cause notice, demolition notice on the CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 61 part of the partners of M/s Ashoka Builders and such notices were issued by affixation at the site and in the meantime raising of construction continued at the site.
132. In the meantime Suit No.201/90 was filed at the instance of M/s Ashoka Builders and Promoters, wherein vide order dated 12.04.1990 a stay order was passed by the court of SJIC. Perusal of the order dated 12.04.1990 would show that argument was made before the court that demolition action is being initiated at the instance of MCD without issuance of show cause notice. On the basis of such submissions made in the court, stay order was passed by the court. Whereas from the documents Ex.PW12/DC and Ex.PW12/DD it is reflected that show cause notice dated 09.04.1990 was refused to be accepted on 10.04.1990 and was affixed at the site on 11.04.1990. In Suit No.201/90 false facts were mentioned at para no.10 onward that there was no unauthorized construction being raised or that plaintiff (M/s Ashoka Builders) has not violated any terms of the sanction plan. This clearly shows that even misrepresentation was made before the court of law also. Certified copy of subsequent order sheets in the same file would show that after obtaining the stay order, adjournments were sought repeatedly and therefore taking note of the conduct of the plaintiff, stay order was vacated by order dated 30.11.1990.
133. Said order dated 30.11.1990 of trial court was challenged in MCA No.430/1990 before ld. ADJ. Said appeal was dismissed by order dated 20.08.1991 of ld. ADJ wherein ld. ADJ noted that conduct of partners of M/s Ashoka Builders and Promoters and observed that false statements were made not only in the pleadings but even false submissions were made before Trial court on behalf of that firm to obtain the injunction order. The copy of judicial orders are lying on the record of file Ex.PW7/C, the judicial notice of which can be taken.
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134. Order dated 20.08.1991 of ld. ADJ was again challenged in High Court by Civil Revision No.689/1991. Vide order dated 09.10.1991 MCD was restrained from taking any action or demolition or sealing in the property in question. Thereafter proceedings in Suit No.201/1990 were adjourned sine die on 05.03.1997. All these judicial orders have been withheld from this court although judicial notice of same can be taken. All these proceedings clearly show that the stay order dated 12.04.1990 in Suit No.201/1990 was obtained by stating incorrect facts in court of law, moreover such stay order did not continue and was vacated.
135. Here I would examine the issue of registration of RC by CBI belatedly in year 2000. FIR in this case was registered by the CBI on the basis of source information. It is argued by ld. Counsel for A5 and A6 that registration of RC in 2000 was made only when the civil proceedings continued till 1999 and till then no permission was taken from the court for filing any FIR or any complaint. It is submitted that such FIR was filed later. Whereas the Hon'ble High Court of Delhi in matter of A.K. Ganju vs. CBI (2013) SCC OnLine Del. 3686, quashed the proceedings in more or less similar circumstances.
136. Having considered the submissions made at Bar, there is no denial as it is matter of record to the fact that the CBI registered the RC in this case in year 2000 in respect of issues involved regarding construction of building raised, somewhere in year 1989 to 1991. I have already noted above that demolition action proposed by the MCD was challenged by way of a civil suit for injunction no.201/1990, in which initially there was a stay order was passed but same was vacated by the trial court. Such vacating of stay order was even upheld by the court of appeal of ADJ and then Civil Revision was filed before Hon'ble High Court. I would discuss about the fate of other legal CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 63 proceedings little later in the judgment. While considering the submissions I am of the view that even if RC in this case has been registered in year 2000, this fact in itself does not affect the prosecution case. Registration of RC in year 2000 does not bring any falsity or fabrication regarding all the circumstances which are otherwise matter of record. In facts of present case dominant issue for consideration is whether the commission of offence of cheating is made out or not. If different circumstances as noted above, taken together, delay in registration of RC hardly has any effect on the prosecution case.
137. I have gone through the judgment of Hon'ble High Court in A.K. Ganju's case (supra), wherein it was held that DMC Act is a separate and special Code which deals with offences committed under DMC Act regarding unauthorized construction, order of demolition, stoppage of work etc. Section 345A of DMC Act provides power to deal with unauthorized construction and for prosecution for the same. It was held by the Hon'ble High Court that DMC Act is a complete code in itself and bars any other agency or court to take cognizance of any violation of any MCD Code.
138. While there can be no denial to the ratio laid down in the said judgment. However this court is not examining violation of DMC Act or issue of unauthorized construction per se. Undisputedly this is not within the domain of either CBI or for this court to decide. This court however is assessing the evidence on the record to examine if charge of cheating is made out or not. Issue of "unauthorized construction" is being examined with limited consideration of charge of offence u/s 420 IPC. This court is not going to decide the penalty etc. for unauthorized construction. This court is rather examining entire circumstances within which raising of unauthorized construction is one of, beside other circumstances prosecution has sought to CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 64 establish for proving the charge u/s 420 IPC. Therefore this court would not decide about the consequence or fate of any such construction.
139. Factual context in the matter of A.K. Ganju (supra) were also little bit different as in that case one plot of Vasant Vihar, New Delhi, allotted by DDA and allottee transferred to one Raj Singh Gahlot and thereafter the original allottee moved an application before DDA for demolishing old building structure and A.K. Ganju who was an Architect prepared the site plan and it was alleged that with the help of officials of MCD wrong completion certificate was obtained whereas there was unauthorized construction. In the facts of that case it was noted that demolition order was passed and some of the portion of the building was demolished. The Hon'ble Court was considering the role of A.K. Ganju who was architect and allegedly submitted faulty drawings and facilitated in issuance of completion certificate. In that context it was held in para 111 that DMC is a complete code in itself and issues of unauthorized construction etc., in violation of MCD bye laws are to be dealt with under the said law. It was also held in para 113 that if it is not established that there was any violation under DMC Act, then relatable offences committed under IPC or P.C. Act can hardly be established.
140. While following the ratio laid down in the said judgment, first of all it be noted that in present case, no court of competent jurisdiction has held that there was no violation of DMC Act or that no unauthorized construction in the property in question has been raised or that such construction was regularized. Much emphasis has been given to the fact that construction was covered under any 'Amnesty scheme'. While referring to the evidence of PW31, cross-examination of PW40, accused no.5 and 6 in their statement of accused recorded u/s 313 Cr.P.C. have stated with much importance that the unauthorized construction was regularized from MCD under its Amnesty CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 65 scheme, by depositing compounding charges of Rs.3,71,430/- on 26.04.1999 by receipt no.763016 dated 29.04.1999 and further amount of Rs.83,103/- with MCD.
141. This fact first of all in itself has not been proved by any specific evidence on behalf of accused no.5 and 6. Only receipts Mark DXX and DX4, DX5 have been placed on record. These receipts have not been proved as required under the law. This is the plea taken up by the accused and therefore as per Section 106 of Indian Evidence Act it was for accused to establish this fact even if by preponderance of probability. Oral assertion of this fact from PW31 or even in the statement u/s 313 Cr.P.C. of accused no.5 and 6 would not be sufficient. Rather there is material available on the record showing that in fact such unauthorized construction has never been regularized even under the said Amnesty scheme and false assertion has been made in this court on this aspect.
142. I have already noted above that a civil revision no.689/1991 was filed in Hon'ble High Court in which order of stay dated 09.10.1991 was passed. It is thereafter in December 1998 a scheme for regularization of certain non-compoundable unauthorized construction was floated by the MCD and published in the newspapers. In response thereto M/s Ashoka Builders through partners applied before MCD by application dated 26.04.1999 by depositing of Rs.3,71,430/- as well as additional sum of Rs.83,103/-. Since under the said scheme one of the condition was that applicant was required to withdraw all his legal proceedings from the court and therefore M/s Ashoka Builders withdrew its civil revision no.689/1991 from the High Court and thereby the stay order dated 09.10.1991 also stood vacated on 19.01.2000. The certified copy of order of Hon'ble High Court dated 19.01.2000 is on the file Ex.PW7/C. When there was no stay order CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 66 from any court of law MCD even after deposit of above said amount, rejected the application for regularization of the building and basement of the property in question i.e. B-23, Greater Kailash-I was sealed in early months of year 2000 u/s 418 of DMC Act.
143. Even thereafter notice dated 25.04.2000 was served by the MCD to M/s Ashoka Builders in respect of the property in question regarding which matter went in Appellate Tribunal MCD. ATMCD by order dated 26.04.2000 though ordered for de-sealing of property except the sealing of first floor of the property. Subsequently another notice was issued by the MCD regarding property in question on 11.05.2000 and 13.06.2000. All these actions were taken as per the provisions of DMC Act and after depositing of amount as noted above. All these actions were challenged by M/s Ashoka Builders and Promoters through partners by another suit no.1245/2000 for declaration and injunction in the Hon'ble High Court. The certified copy of pleadings of the said suit filed in High Court are on record in file Ex.PW7/G, judicial notice of which can be taken.
144. Above noted facts atleast establish that property in question was not regularized by receipts Mark DXX, DX4 and DX5. Probably that was the reason why no evidence was led to summon the relevant record from MCD to prove these receipts as per law. Thus, from the above it is clear that the unauthorized construction has never been regularized nor anything came on record by any judicial order from any court of competent jurisdiction to exonerate raising of such construction or declare the MCD action to be not in accordance with law. As such the judgment of A.K. Ganju (supra) would be distinguishable in the facts of the present case.
145. At the cost of repetition this court would again note here that still the issue of unauthorized construction per se is not under consideration in this CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 67 case. But certainly this court has examined different circumstances to see that whether charge u/s 420 IPC is made out or not. Circumstances as discussed above showing (I) MCD authorities were misrepresented that addition/ alteration in the building to be done for residential use and storage, whereas construction raised for developing market and commercial space without lawfully taking permission for the same; (ii) such application of sanction for addition/ alteration int eh building was moved in the name of someone who had no proprietary interest in the property, but when construction plan was sanctioned it was obtained by one of the partners of M/s Ashoka Builders;
(iii)raising of construction in such a manner to change the purpose of the property to commercial use and also to construct additional floors against the sanctioned plan and MCD bye laws; (iv) evidence showing taking of loan from bank almost at the same time by representing to the bank that commercial cum residential project is being developed; (v) when construction was not complete evidence shows that partners of M/s Ashoka Builders managed to obtain D Form without proper inspection of the property and even tried to obtain completion certificate, knowing well that by then construction was not complete; (vi) evidence showing selling of shops, commercial space, flats etc. in the property in question claiming that building has been constructed as per sanctioned plan and also claiming obtaining of Form C and D to portray the construction is as per sanction plan, whereas it was actually not; (vii) when property was inspected and deviations in the construction was found and show cause notice was issued from MCD, refusing the service of such show cause notice and after service of such notice by affixation at the site, refusing to service of demolition notice which was also later served by way of affixation at the site; (viii) while refusing service of notices etc. and avoiding the actions taken by the MCD authorities continuing construction in CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 68 the property; (ix) giving false facts and assertions in the court of law that no notice has been served or that construction was as per sanction plan; (x) lastly stating false facts in this court on the basis of copy of receipts that unauthorized construction was regularized.
146. All these circumstances taken together establish all the necessary ingredients required for offence u/s 420 IPC. In this context now I consider the case law relied upon on behalf of accused no.5 and 6. Ld. Counsel has placed reliance in judgment of Apex Court in V.P. Shrivastava Vs Indian Explosives ltd. & Other. (Supra)wherein in Para 24 it was held that "It is well settled that in order to constitute an offence of cheating, it must be shown that the accused had fraudulent or dishonest intention at the time of making the representation or promise and such a culpable intention right at the time of entering into an agreement cannot be presumed merely from his failure to keep the promise subsequently." In Para 25 it was noted that complaint did not mention that accused had dishonestly "induced" IEL to enter into the said agreement/arrangement.
147. Whereas in this case I have already noted above different circumstance, more particularly evidence of application Ex. PW 4/A for alteration/addition in property was or residential use and domestic storage. Said was application was also move by one who by then was not owner of property. This induced MCD to issue sanction building plan but later shops and commercial spaces were constructed in that property. Moreover Pw 19, 25 and Pw 38 have deposed that they were assured that construction is as per sanction plan. These facts show fraudulent or dishonest intention to induce MCD and buyers of flats etc and to deceive.
148. Another judgment relied upon is Dalip Kaur and Othr Vs Jagnar Singh and Othr. (2009) 14 SCCC 696 wherein it was held that CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 69 fraudulent or dishonest intention at time of making promise or representation is necessary to constitute offence of cheating. Pure and simple breach of contract of sale does not constitute offence of criminal breach of trust or cheating. While no denial to legal proposition laid down in that judgment, Facts of that case were altogether different.
149. In Devender and Others vs. State of UP (2009) 7 SCC 495, Suprme Court Taking note of ingredients for proving of offence of cheating, Apex court held that when breach of an agreement just give rise to civil dispute, offence of cheating does not make out, such conclusion was though without touching merits of the matter as observed in para 31 of judgment. Similarly in B. Suresh Yadav Vs Sharifa bee (2007) 13 SCC 107, in para 13 of judgment Apex Court held that for the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Therefore, complaint that accused-vendor before execution of sale deed surreptitiously demolished structure standing on land sold to complainant. By itself does not make out a case of cheating, when complainant in civil suit has taken contrary and inconsistent stand. Facts in those case were different.
150. Reliance has also been placed in V.Y. Jose vs. State of Gujarat and Anr. (2009) 3 SCC 78, Apex Court has laid down as: "An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied: i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit."
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151. It is argued by ld. Counsel for accused no. 5 and 6 that there is grave lacuna in the case of prosecution as M/s Ashoka Builders and Promoters have not been named as accused. Individual partners of that firm have been proceeded against, on erroneous assumption that they can be held criminally liable for firm M/s Ashoka Builders. Such analogy cannot be drawn and is against the principles of criminal law. It is argued that there is no vicarious liability in criminal law unless there is a deeming provision in the statute itself. Sh. Vishal Gosain, ld. Counsel for accused no. 5 and 6 further argued that every partner of the firm cannot automatically be roped in. Criminal liability cannot be fastened for any misconduct of the firm as each partner of the firm can be criminally liable only on proof of their individual acts and conducts. Reliance has been placed on judgment in Shyam Sunder & Ors. Vs. State of Haryana (1989) 4 SCC 630, M. Abdul Haque Vs. Birla Yamaha Ltd (2009) 156 DLT 460, Mona Ben Ketan Bhai Shah & Ors Vs. State of Gujrat (2004) 7 SCC 15, judgment of Supreme Court in Sunil Bharti Mittal Vs. CBI (2015) 4 SCC 609, Sharad Kumar Sanghi Vs. Sangeeta Rane (2015) 12 SCC 781.
152. Having considered the submissions under issue the firm M/s Ashoka Builders and Promoters which was a partnership firm has not been named separately as an accused in the charge sheet but it must be noted that it was only a partnership firm which had no legal entity as in case of a company registered under Company's Act. Partnership firm is only a group or association of 2 or more persons coming together to run a business for sharing profits and loss and having mutual agency among the partners inter se. Unlike a company registered under Company's Act a partnership firm is not legal entity. Therefore, a partnership firm cannot be separately arrayed as an accused in the charge sheet. Reading the charge-sheet as a whole would show CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 71 that right from the beginning there a reference of the firm consisting three partners namely Umesh Gupta, Yogender Gupta and Sudhir Gupta, as such it was a business association of three named accused in the charge sheet.
153. The judgment in Sharad Kumar Sanghi Vs. Sangeeta Rane (supra) is in respect of a company and it was held that if there were specific allegations against the company and company has not been made party in the complaint and the allegations restricted to Managing Directors were vague in such circumstance it was held that initiation of criminal proceedings against Managing Director without naming the company as an accused would not maintain. Apparently, such judgment cannot be applied in case of a firm.
154. Reliance has also been placed to the judgment of Sunil Bharti Mittal Vs. CBI (supra), wherein it was held that vicarious liability of the Director cannot be imputed directly in the absence of any statutory provision. Again without disputing the ratio in said land mark judgment of Hon'ble Supreme but in that case also the liability of Directors and a company was an issue whereas in the present case the issue for consideration about the liability of partners in a partnership firm.
155. Ld. Counsel for accused no.5 and 6 relied upon the judgment of Apex Court in Vikramjit Singh vs. State of Punjab (2006) 12 SCC 306 as well as judgment in T. Subramanian vs. State of Tamilnadu 2006 1 SCC 401 to submit that where there are two views reasonably possible from the prosecution evidence and prosecution has not been able to prove its case beyond reasonable doubt, in such situation the view favourable to the accused should be adopted by the trial court and benefit of doubt should be given to the accused. In this context reliance has also been placed in the observation given by Hon'ble Supreme Court in Sarwan Singh vs. State of Punjab AIR 1957 SC 637 that between 'may be true' and 'must be true' there is inevitably CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 72 a long distance to travel by the prosecution and the whole distance must be covered by an unimpeachable evidence.
156. There can hardly be any dispute to the legal proposition as propounded in the above discussed judgments. It is established law that prosecution case must be proved beyond doubt and all the ingredients of the offence must be proved by legal evidence, before coming to the conclusion of guilt of the accused. If there is any gap or lack of evidence in establishing the charge, certainly benefit of doubt has to be given to the accused. On the same analogy if the prosecution evidence just give rise to doubt about the involvement of the accused and there being possibility of two views, one against and other in favour of the accused, court is bound to adopt the view favourable to the accused. The basis of this proposition as we all know is that the guilt of the accused must be proved beyond doubt.
157. As it is evident from the discussion of facts and evidence of this case, one of the unusual aspect of the matter is that in respect of the incidence/ acts and conducts done during 1989 to 1991, RC was registered by the CBI in year 2000 and then the investigation was carried out. In such situation the evidence collected during the investigation was though based on the record but the offence of cheating has been sought to be proved on different circumstances showing deceitful representation made to the MCD authorities and general public and thereby MCD and general public were induced to favour accused no.4 to 6 and their partnership firm and thereby they gained undue benefit. The evidence of different circumstances as discussed above including giving incorrect or false facts in court of law, to my mind does not give only doubts or inferences to be drawn only against accused. Rather the evidence of those sequences taken together makes a firm view that prosecution has been able to prove the charge of cheating beyond doubt. In CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 73 such situation when unauthorized construction having been raised to gain undue benefits and then taking up a false plea and misleading the court of law in the civil proceedings when MCD action was challenged, leads to no other conclusion except establishing deceitful intention right from beginning to gain undue benefits. As I have noted above such circumstances of unauthorized construction and gaining undue benefits out of it generally do not arise any criminal proceedings. But once the evidence show that there was never any exoneration or amnesty to raising of such unauthorized construction, irrespective of the fate of such construction that fact in itself establish cheating to government authorities and general public at large. In that sense there is absolutely no other view to be taken except the proof of charge of cheating.
158. Coming now to the aspect of individual liability of each of the partner of the firm reliance has been placed in the judgment of Apex Court in Shyam Sunder & Ors Vs. State (supra). It has been held in para 8 and 9 that criminal liability under the penal provision is not like civil liability. Penal provision must be strictly construed at first place. Secondly there is no vicarious liability in criminal law unless the statute take that also within its fold.
159. Under Partnership Act, partners have relationship of principal and agent between themselves. Every partner in contemplation of law is the general and accredited agent and he binds all the other partners by his acts in all matters, done within the scope and object of the partnership. Having so stated, above principles generally apply in business transaction and for civil liability. No doubt criminal liability of each of accused facing trial of any offence would be decided by evidence on inculpability or involvement of each one of accused. Merely because two or more accused are partners in a CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 74 firm, that fact alone would not make each of the accused vicariously liable for criminal acts of one partner in a firm. Judgments of Shyam Sunder and vs. State of Haryana (supra), Abdul Haq vs. Birla Yamaha Limited (supra), Mona Ben Ketan Bhai Shah vs. State of Gujarat (supra) as relied upon lay down such principle of law.
160. Having so observed it be also noted here that if partners in doing business of their firm, commit criminal act, in conspiracy with each other, then they can be held liable jointly on existence of evidence showing those accused persons being partner were committing offence in conspiracy of each other. In that situation not because of their status of being 'partner' in a firm, but on account of evidence showing that they were acting in furtherance of criminal conspiracy, they can be jointly liable different acts committed at different stages, to achieve their common object.
Proof of Criminal Conspiracy
161. This brings us to the question of proof of criminal conspiracy. Ld. Counsel for the accused no.5 and 6 has relied upon the judgments in State of Kerala vs. P. Suganthan and others 2000 SCC Criminal 1474, P.K. Narayan vs. State of Kerala (1995) 1 SCC 142, CBI Hyderabad vs. K. Narayana Rao (2012) 9 SCC 512. On the issue of proof of criminal conspiracy ld. Senior counsel for accused no.3 has also relied upon the judgment of Kehar Singh vs. State of Punjab (1988) 3 SCC 609.
162. Essence of the offence of criminal conspiracy is the fact of combination by agreement. The agreement may be expressed or implied. The conspiracy arises and the offence is committed as soon as the agreement is made. The actus reus in a conspiracy is the agreement to execute the illegal conducts not the execution of it. Following are the ingredients of the offence of conspiracy:
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(a) There must be an agreement between two or more persons who are alleged to conspire.
(b) The agreement should be to do, or cause to be done:
(i) an illegal act
(ii) an act, which is though not illegal-by-illegal means.
163. In view of proviso, distinction is drawn between an agreement to commit an offence and an agreement of which either object or means employed are illegal but does not constitute the offence. In case of an agreement is necessary. But in case of an agreement to do an act, which would not amount to an offence, some overt act besides the agreement must be proved to establish the charge of criminal conspiracy.
164. It be noted in this context that direct independent evidence of criminal conspiracy would not available and its existence invariably is a matter of inference except as rare exceptions. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. Supreme Court in the decision reported as State vs. Nalini (1999) 5 SCC 253 while discussing the concept of conspiracy observed:
"A charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement. In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 76 the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders".
165. Apex Court in V.C. Shukla v. State (Delhi Admn.) (1980) 2 SCC 665 held that to prove criminal conspiracy there must be evidence, direct or circumstantial, to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirators for the intended object of omitting an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied on for the purposes of CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 77 drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy.
166. In order to prove a conspiracy it has always been felt that it was not easy to get direct evidence. It appears that considering this experience about the proof of conspiracy that section 10 of the Indian Evidence Act was enacted. Section 10 of Evidence Act renders anything said, done or written by anyone of the conspirators in reference to their common intention as a relevant fact, not only as against each of the conspirators but for proving the existence of the conspiracy itself. Further, the said fact can be used for showing that a particular person was a party to the conspiracy. The only condition for application of the rule in S.10 is that there must be "reasonable ground to believe that two or more persons have conspired together to commit an offence."
167. Explaining the theory of agency as envisaged under Section 10 of the Indian Evidence Act, 1872 applicable to the law of conspiracy Supreme Court in Saju vs. State of Kerala (2001) 1 SCC 378, observed:
"In a criminal case the onus lies on the prosecution to prove affirmatively that the accused was directly and personally connected with the acts or omissions attributable to the crime committed by him. It is a settled position of law that act or action of one of the accused cannot be used as evidence against another. However, an exception has been carved out under Section 10 of the Evidence Act in the case of conspiracy. To attract the applicability of Section 10 of the Evidence Act, the court must have reasonable ground to believe that two or more persons had conspired together for committing an offence. It is only then that the evidence of action or statement made by one of the CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 78 accused could be used as evidence against the other."
168. Apex Court in Kehar Singh vs. State (Delhi Admn.) (1988) 3 SCC 609 has held that section 10 mainly could be divided into two: the first part talks of where there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, and it is only when this condition precedent is satisfied that the subsequent part of the section comes into operation and it is material to note that this part of the section talks of reasonable grounds to believe that two or more persons have conspired together. The second part of section talks of anything said, done or written by any one of such persons in reference to the common intention after the time when such intention was first entertained by any one of them is relevant fact against each of the persons believed to be so conspiring as well for the purpose for proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It is clear that this second part permits the use of evidence which otherwise could not be used against the accused person. It is well settled that act or action of one of the accused could not be used as evidence against the other. But an exception has been carved out in Section 10 in cases of conspiracy. The second part operates only when the first part of the section is clearly established
169. In State through Central Bureau of Investigation v. Dr. Anup Kumar Srivastava AIR 2017 SC 3698. Apex Court has explained offence of criminal conspiracy by observing as: "Conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. Object behind conspiracy is to achieve ultimate aim of conspiracy. For a charge of conspiracy means knowledge about indulgence in CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 79 either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from knowledge itself. This apart, prosecution has not to establish that a particular unlawful use was intended, so long as goods or service in question could not be put to any lawful use. Finally, when ultimate offence consists of a claim of actions, it would not be necessary for prosecution to establish, to bring home charge of conspiracy, that each of conspirators had knowledge of what collaborator would do.
170. So legal proposition on the issue emerges to the effect that
(i)Conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. The object behind the conspiracy is to achieve the ultimate aim of conspiracy. In order to achieve the ultimate object, parties may adopt many means. Such means may constitute different offences by themselves, but so long as they are adopted to achieve the ultimate object of the conspiracy, they are also acts of conspiracy.
(ii)For an offence of conspiracy, it is not necessary for the prosecution to prove that conspirators expressly agreed to do an illegal act, the agreement may be proved by necessary implication.
(iii)It is also not necessary that each member of the conspiracy should know all the details of the conspiracy. Conspiracy is a continuing offence.
(iv)The conspiracy may be a general one and a smaller one which may develop in successive stages. It is an unlawful agreement and not its accomplishment, which is the gist/essence of the crime of conspiracy.
(v)In order to determine whether the conspiracy was hatched, the court is required to view the entire agreement and to find out as in fact what the conspirators intended to do.
(vi)Section 10 of Evidence renders anything said, done or written CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 80 by anyone of the conspirators in reference to their common intention as a relevant fact, not only as against each of the conspirators but for proving the existence of the conspiracy itself. However it applies when prima facie evidence of the existence of a conspiracy is given and accepted.
171. Keeping the above discussed legal proposition in mind, coming now to the facts of the present case, there is an evidence on the record showing that firm M/s Ashoka Builders and Promoters through their partners accused no.4 to 6 applied for loan from Indian Bank along with partnership deed dated 15.03.1982 Ex.PW6/C wherein it is mentioned that all the three partners namely A4 Umesh Gupta, A5 Yogender Gupta and A6 Sudhir Gupta were active partners in the firm and sharing profits/loss as per proportions to their capital. Evidence has also come on the record showing that it was accused Umesh Gupta (since expired during the trial), who was admittedly dealing with the MCD. Umesh Gupta collected the sanction order and thereafter construction was raised at the property in question. When the shops and flats etc. were prepared in the building same were sold to different persons. PW3, PW8, PW9, PW11, PW13, PW14, PW16, PW19, PW25, PW31 and PW38 have deposed regarding purchasing of shops, commercial space and flats constructed in the property in question. These witnesses have also proved documents of sale. These documents of sale have been executed by other partners namely Sudhir Gupta and Yogender Gupta. The income/ gains received by selling the shops and flats etc. came in the account of the firm in which all the above mentioned three partners were equally entitled.
172. Though it was argued on behalf of accused no.5 and 6 that prosecution has not led any evidence proving the accounts of the firm or that the money came in the account of the firm was ultimately transferred in the CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 81 individual accounts of the partners. Even if such evidence might not have come on the record, once the partnership deed on the record indicates that above said partners in the firm were active partners and entitled to share profits and loss as per their share. There being no evidence showing that at any point of time any of the partner objected to or disputed or dis-owned selling of shops/ flats in the property in question. It is not the case even of the accused no.5 and 6 that those flats/shops from the property in question were not sold by the said firm M/s Ashoka Builders. Once the money derived from the selling shops etc. from property in question came in the account of the firm, legal inference can be drawn that such gain was shared by the partners of that firm.
173. There is an evidence on the record showing that accused no.4 to 6 were acting in concert to each other in furtherance of their common object of firstly getting sanction order from the MCD and then raising construction over the property in question and later selling shops, flats etc. in that property and thereby gaining profits from the same. Therefore, there is sufficient evidence to indicate conspiracy among the partners of M/s Ashoka Builders i.e. accused no.4 to 6. In such situation by virtue of Section 10 of Indian Evidence Act, anything done, written or stated by each one of the partner in reference to their common intention, would be an evidence establishing their conspiracy among each other. As such, I conclude from the totality of the evidence as come on the record that accused no.5 and 6 beside accused no.4 (since expired) were in conspiracy with each other to commit an offence of cheating.
174. While considering the above discussed legal proposition in case of accused no.1, 2 and 3 who were the public servants and ZE (B), JE(B) respectively in South Zone of MCD, there is no evidence on the record firstly CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 82 to show that there was any agreement or prior concert among these public servants inter se or even with the accused no.4 to 6. None of the witnesses examined by the prosecution have deposed that private accused persons no.4 to 6 ever met with any of the public servants namely R.N. Rastogi (A1), S.B. Singh (A2) or Vinod Kumar (A3). Nothing is on the record showing that these public servants had any common object with accused no.4 to 6. No doubt there is an evidence showing issuance of D Form on 11.12.1989 on the day when the same was applied by the firm, at the instance of accused no.1 and 2. However this circumstance alone does not give conclusive inference of any prior meeting of mind or proceeding towards the common object. As noted above there must be sequence of different circumstances, cumulatively taken together leading to the conclusion of hatching of conspiracy among the accused persons. Even if there might be evidence showing public servants did something in favour of private persons, that evidence in isolation would not be sufficient for drawing the conclusion of conspiracy. Therefore, I am of the considered view that charge of criminal conspiracy has not been established so far as against accused no.1, 2 and 3.
Charge of offence u/s 13(1)(d) of P.C. Act against accused no.1 to 3
175. Now I have to consider the substantive charge against three accused public servants namely A1 R.N. Rastogi, A2 S.B. Singh and A3 Vinod Kumar. Before I discuss the submissions made by ld. Counsels for these accused persons it be noted that accused no.1 R.N. Rastogi was posted as Zonal Engineer (Building) in South Zone of MCD Ward 12 from 13.03.1989 to 11.01.1990. Accused no.2 is S.B. Singh who remained posted as Junior Engineer (Building) and accused no.3 Vinod Kumar has also been Junior Engineer posted in Ward 12 i.e. Greater Kailash-I, South Zone MCD from 12.12.1989 to 29.08.1990.
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176. It is argued on behalf of accused no.1 that no witness has been examined on behalf of the prosecution deposing against A1 in respect of any violation of DMC Act. It is submitted that no evidence has been led to show that accused no.1 has been in any manner favouring the private accused persons or has received any bribe money for issuance of D Form. He submits that there has never been any departmental action against A1 regarding alleged issuance of D Form for building in question.
177. Ld. Counsel for accused no.2 Mr.Pradeep Teotia has also submitted that only allegations qua accused no.2 was with regard to issuance of D Form as stated in para 5 of the charge sheet, whereas A2 inspected the site on 11.12.1989 and submitted his report to A1, who after proper examination of the report forwarded the matter to Additional Deputy Commissioner of the Zone and thereupon the D Form was issued. It is stated that even otherwise the CBI was not having any jurisdiction to investigate the issues arising out of DMC Act. It is also submitted that no offence under Section P.C. Act has been made out. Reliance has been placed on judgment of Delhi High Court in A.K. Ganju vs. CBI (supra) as well as the judgment of Hon'ble Supreme Court in C. Chenga Reddy vs. State of A.P. CJT 1996 (6) SC 739.
178. Ld. Senior Counsel Ms. Rebecca John submitted on behalf of accused no.3 that at the outset the charge as framed against accused no.1 to 3 jointly is defective and cannot be read as against accused no.3. It is submitted that there is no charge or allegation so far as against accused no.3 that he did not take any sealing action against unauthorized construction in the building or he did not book the building. It is submitted that accused is supposed to answer the allegations as mentioned in the charge and if the charge has not been properly framed, accused would be prejudiced in putting up his defence.
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Reliance has been placed on judgment of Apex Court in Venu Bhai Ranchod Bhai Patel vs. Rajiv Bhai Dudabhai Patel and others (2018) 7 SCC 743. It is further argued that A3 remained posted for a very short period of time in the relevant ward of South Zone MCD and the allegations of issuance of D Form is not as against A3 which as per prosecution was issued on 11.12.1989 before A3 joined in the office. Ld. Senior Counsel for accused no.3 further submitted that there being no evidence of obtaining of valuable thing or pecuniary advantage, charge under P.C. Act has not been made out. Reliance has been placed in judgment of Hon'ble High Court in A.K. Ganju vs. CBI (supra), Subhash Parbat Sonavane vs. State of Gujarat (2002) 5 SCC 86, A. Subair vs. State of Kerala (2009) 6 SCC 587; Madhu Koda vs. State through CBI (2020) SCC OnLine Del. 599. Ld. Senior Counsel for accused no.3 also submitted that charge sheet in this case has been filed on 16.02.2001 and sanction for prosecution u/s 19 of the P.C. Act as against accused no.3 is also of 16.02.2001 which clearly show that sanction was passed mechanically without due application of mind on all the materials collected. Reliance has been placed on judgment in CBI vs. Ashok Kumar Aggarwal 2014 14 SCC 295, State through CBI vs. Ravinder Singh 1995 (32) DRJ 394.
179. Ld. Senior counsel further submitted that it has come in the evidence of PW12 that there were many material documents like Ex.PW12/DD, Ex.PW12/DE, Ex.PW12/DG and Ex.PW12/DH which show that whatever legal action under DMC Act was taken on behalf of the MCD, same was taken only by A3 in due discharge of his official duties, still he has been made accused in this case. Ld. Senior counsel submitted that important documents favouring accused no.3 were intentionally withheld to implicate the accused.
180. So far as the arguments on behalf of accused no.3 as well as CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 85 accused no.5 and 6 that charge has not been proper and complete and thereby causing prejudice to the accused in setting up of their defence, it would be sufficient to say that failure of mentioning certain factual allegation per se would not made the charge defective when accused had complete knowledge of allegations against him. Section 215 and Section 464 Cr.P.C. makes the legal position clear. Section 215 Cr.P.C. provides that no error in stating of offence or particulars regarding the facts, would not have affect unless accused has been misled on account of any such error or omission. Similar is the provision of Section 464 of Cr.P.C. which says that no finding from the court of competent jurisdiction, shall be deemed to be invalid only on the ground that there was any defect in the charge or non-mentioning of specific accusation. In this case accused persons were duly aware about the material allegations against each of the accused persons. Therefore non-reference of certain facts in the body of charge does not have any adverse affect, specifically when accused in the entire trial has not taken up the plea of being misled or prejudiced on account of non-mentioning of some of the factual allegations.
181. Similarly the argument on behalf of accused no.3 that sanction order Ex.PW21/A was passed as against A3 without applicationg of mind only on the ground that it was passed on 16.02.2001 the day on which charge sheet was also filed in the court of law. This fact ipso facto does not make out a case of non-application of mind by the disciplinary authority or accused no.2 and 3, while it accorded the sanction. Nothing material came in the cross-examination of PW21 also to prove this fact. The judgments relied upon on this aspect were altogether on different factual aspects.
182. Now I take up the issue of charge u/s 13(1)(d) of the P.C. Act. However before going into evidence and facts, it would be appropriate to CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 86 precisely discuss the legal requirement for proving of the above said offence of P.C. Act. Section 13(1)(d) of the Act may now be extracted below:
"Criminal misconduct by a public servant - (1) a public servant is said to commit the offence of criminal misconduct,-
(a)......
(b)......
(c ) .....
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any persons any valuable thing or pecuniary advantage without any public interest. Or
(e)........"
183. A bare reading of the aforesaid provision of the Act of 1988 would go to show that the offence contemplated therein is committed if a public servant obtains for himself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as public servant or without any public interest. Offence of "Criminal Misconduct" was also provided in Section 5 of P.C. Act, 1947. Section 13(1)
(d) of Act of 1988 is though somewhat similar to the offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947. However, there is some change in the comparable provisions under section 13 (1) (d) of the P. C. Act, CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 87 1988, from the provision under Sec. 5(1)(d) under the Prevention of Corruption Act, 1947.
184. Clause (d) of S. 5(1) of Act of 1947 mandated that for constituting the offence under that clause, the accused must have used corrupt or illegal means or otherwise abused his position as public servant to obtain for himself or for any other person valuable thing or pecuniary advantage. The words "or by otherwise abusing his position as public servant" go to indicate that use of corrupt or illegal means is considered as one of the modes of abusing official position. Thus, there is only one concept involved here, namely, abusing one's official position to gain valuable thing or pecuniary advantage. Adoption of corrupt or illegal means is mentioned illustratively as one of the means of abuse of official position. Thus, the concept of use of corrupt or illegal means has inextricable nexus with abuse of official position. Abuse of official position appears to be central to the concept of misconduct and adopting corrupt or illegal means is merely one of the ways and not unrelated to abusing official position.
185. Whereas, a reading of Section 13 of Act of 1988 would make it amply clear that all the three wings of Clause (d) of Sec. 13(1) are independent and alternative and disjunctive for constituting the ingredients for the offence under Sec. 13(1)(d) as it clear from the use of the word 'or' at the end of each sub-clause. Thus, under Sec. 13(1)(d)(i) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would satisfy the requirement of criminal misconduct under S. 13(1)(d) of the P. C. Act, 1988. On the same reasoning "obtaining a valuable thing or pecuniary advantage merely by abusing official position" as contemplated under Sec. 13(1)(d)(ii) in itself would satisfy the ingredient of Criminal Misconduct under S. 13(1)(d) without any nexus with the adoption CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 88 of the illegal means as contemplated under S. 13(1)(d)(i) of the Act, 1988.
186. So there is definite change as to the ingredients of offence of Criminal Misconduct under S. 13(1)(d) of the Act, 1988 Vis a Vis Sec. 5(1)(d) of the Prevention of Corruption Act, 1947. As the scope of section 13 (1) (d) has been widened by incorporating three different sub-clauses in Section 13 (1) (d) of P.C. Act, 1988. Legislature to my mind did this consciously to cover up those situations where a public servant obtains pecuniary advantage by corrupt or illegal means either for himself or any other person, but still there may not be ostensible evidence of abuse of misuse of official position. In this context however one aspect needs to be underlined that dishonest intention is the gist of the offence under section 13(1)(d) (i) which is implicit in the words used i.e. corrupt or illegal means.
187. Coming now to the facts of the present case there is an allegation as against accused no.1 and 2 that D Form was issued to M/s Ashoka Builders and Promoters, in violation of Circulars Ex.PW20/A and Ex.PW20/B on the day when it was applied for. PW22 also deposed that D Form is to be issued upon completion of all sanitary and water supply fittings. It came in the cross-examination of PW22 that there is no necessity that all the floors must have been constructed completely, before issuance of D Form. Having considered the entire evidence on the record, it is evident from the perusal of Circulars Ex.PW20/A and Ex.PW20/B as well as evidence of PW20 that D Form can be issued only after the inspection of building by the concerned JE and to satisfy that the building was being constructed as per the sanctioned plan. Admittedly in this case such procedure was not adopted by accused no.2 being JE at the relevant time. Nor it was ensured by accused no.1.
188. Much emphasis has been given to the fact that there was no necessity for completion of the construction by the stage of issuance of D CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 89 Form but it is also important that PW18, PW20 and PW22 have stated that issuance of D Form means that there was no deviation in the raising of construction against the sanctioned plan. Therefore, issuance of D Form assume importance. Fact remains in this case D Form was issued on 11.12.1989 the day when it was applied for. Therefore the plea taken on behalf of accused no.1 and 2 that accused no.2 had inspected the building before forwarding the case for issuance of D Form is outrightly incorrect and not proved on record. Fact remains that there is sufficient evidence on the record showing D Form was issued against the Circulars and rules of MCD.
189. Unfortunately beside the above said evidence of issuance of D Form at the instance of accused no.1 and 2, nothing has come on the record to show that such lapse on the part of accused no.1 and 2 was deliberate to favour accused persons. As discussed above for the purpose of convicting any public servant for offence u/s 13(1)(d) of the P.C. Act, the fact that there has been some dereliction of duty or lapse on his part, probably would not be sufficient unless there is some more evidence showing obtaining of undue benefits or bribe by that public servant. For establishing the charge u/s 13(1)
(d) of P.C. Act there must be an evidence of accused having obtained either for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means. In other words mere evidence of dereliction of duties, misuse of official position, would not be sufficient for proving the charge (para 115 in A.K. Ganju vs. CBI (supra), Subhash Parbat Sonavane (supra).
190. Unfortunately in this case there is no enough evidence as against accused no.1 and 2 showing receiving or obtaining any bribe or undue benefit for alleged issuance of any D Form by accused no.2 which was approved by accused no.1. In such circumstance I am of the view that accused no.1 and 2 CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 90 would certainly be entitled for benefit of doubt.
191. Coming now to the case of accused no.3, admittedly even as per prosecution case the allegations regarding issuance of D Form etc. is not as against accused no.3 who as per the record joined the concerned ward of G.K.-I, MCD South Zone only on 12.12.1989 and remained posted there for period less than one year. The allegations qua accused no.3 was with regard to taking belated actions against the builders, when completion certificate was applied for. I have already discussed above the evidence showing that it was accused no.3 who inspected the property in question and when he found the same to be incomplete, A3 recommended for refusal of grant of completion certificate vide Ex.PW12/I. This fact is not disputed even from the prosecution. Show cause notice was issued against M/s Ashoka Builders and Promoters on 09.04.1990 which is Ex.PW12/E (copy of the same is Ex.PW18/A). The overleaf record of the same show cause notice was withheld and came in the cross-examination of PW12 which is Ex.PW12/DC. Admittedly show cause notice was in the writing of accused no.3 Vinod Kumar. Overleaf of show cause notice dated 09.04.1990 Ex.PW12/DC also shows that it was Vinod Kumar who went at the site of the property in question to get the service of notice but builder refused to accept the notice. Thereupon said A3 got permission for affixation of notice and affixed it at the site on 11.04.1990 as it reflected from document Ex.PW12/DD.
192. It has also come on the record that when construction continued at the site, demolition notice dated 18.04.1990 was issued which is Ex.PW12/F (the copy of the same is Ex.PW18/B). Service of demolition notice was also refused by the builder at the site and then it was also affixed as reflected from document Ex.PW12/DE and Ex.PW12/DG. On 10.05.1990 it is A3 who put up a note Ex.PW12/DH stating that owner/builder has not CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 91 responded to the notice and construction being unauthorized against building bye laws.
193. From the additional file X it also came on the record that in the meantime suit no.201/1990 was filed at the instance of M/s Ashoka Builders and exparte stay order dated 12.04.1990 was passed. In the file X at page no.22 it came in the noting of A3 dated 06.07.1990 that under the garb of stay order, unauthorized construction is being raised in the property in question. Thereupon MCD approached the court for appointment of local commissioner. It came in the cross-examination of PW12 that when LC failed to visit the site, on behalf of MCD it is A3 who filed an application u/s 151 CPC and also filed affidavit for appointment of another LC which is Ex.PW12/DJ.
194. Above said facts and evidence clearly show that it was rather A3 being JE during relevant time took stern and appropriate steps to stop the unauthorized construction and to implement the provisions of DMC Act and other bye laws. Fact that there was any delay in taking of such steps by A3 have not been proved from the evidence of any of the witness examined on behalf of prosecution. Even otherwise it is very easy to blame a public servant that the official act ought to have been done in a particular manner than the manner it was actually done. In the absence of any evidence showing receiving of any pecuniary advantage or bribe etc., such blame or aspersion against a public servant to my mind does not establish the charge of 13(1)(D) of P.C. Act for the reasons and requirement of law as discussed above. Thus, for the reasons as discussed above, accused no.1, 2 and 3 stands acquitted from the charge u/s 13(1)(d) of the P.C. Act.
CC No.223/2019 (Judgment) CBI Vs. R.N. Rastogi & Ors. Page 92
195. However for the reasons as discussed above accused no.5 Yogender Gupta and accused no.6 Sudhir Gupta stands convicted for offence under Section 420 read with Section 120B IPC.
Announced in the open Court (Shailender Malik)
on December 15th, 2021 Special Judge (PC Act) CBI
Rouse Avenue Courts, New Delhi
CC No.223/2019 (Judgment)
CBI Vs. R.N. Rastogi & Ors. Page 93