Delhi District Court
C.B.I. vs . Ashok Kumar Gupta Etc. on 22 April, 2010
CBI No. 78/2008
C.B.I. Vs. Ashok Kumar Gupta Etc.
22-04-2010
Present : Sh. V.K. Sharma, Ld. Senior PP for the CBI
Accused No. 1 to 3 are present on bail
Shri Udit Barathi, AR of accused No. 4 M/s Sea
Shell Marketing Pvt. Ltd.
Ld. Sr. PP has made the clarifications. Put up for
order today i.e. on 22-04-2010 at 4:00 p.m.
(RAJNISH BHATNAGAR)
SPECIAL JUDGE 01 CBI
ROHINI COURTS : DELHI
22-04-2010
4:00 p.m.
Present : Sh. V.K. Sharma, Ld. Senior PP for the CBI
ORDER
1. The Ld. predecessor of this court while hearing the arguments on charge felt necessary to summon the IO for consideration of role of Ved Prakash Chaudhary. This observation was made by the Ld. predecessor vide order dated 7-3-2009. Thereafter on 19-01-2010 a report regarding the role of Ved Prakash Chaudhary wasfiled by the CBI.
2. Before adverting any further let me first narrate the facts of the case which in brief are as follows : -
3. During the course of investigation it has been revealed CBI No. : 78/08 Page No. : 1 (Total No.of pages: 15) that during the year 2003-04 Sh. Ashok Kumar Gupta, Sh. Anil Kumar and Pawan Kumar Jain while posted and functioning as Executive Engineer, Assistant Engineer and Junior Engineer respectively in Building department of MCD, South zone, New Delhi entered into a criminal conspiracy with each other and with Sh. Ved Prakash Chaudhary, M.D. M/s Sea Shell Marketing Pvt. Ltd. with intention to facilitate Sh. Ved Prakash Chaudhary in completion of unauthorized construction of a commercial complex at Khasra No. 218/3/1 Min, Mehrauli, Gurgaon Road, New Delhi, by abusing their official position.
4. During the course of investigation relevant record was collected and witnesses were examined. The investigation conducted by CBI has revealed that a piece of agricultural land at Khasra No. 218, Sultanpur Village, Main M. G. Road, Mehrauli was sold by Sh. Prehlad Kumar Suri in favour of M/s Seashell Marketing Pvt. Ltd. Vide sale deed dated 04.09.1996 for a sum of Rs. 19 lacs. Sh. Vinod Dhawan and his wife were the directors of M/s Seashell Marketing Pvt. Ltd. and Sh. Dhawan had signed the sale deed. Sh. Vinod Dhawan, when examined during investigation stated that the directorship of the company was transferred by them to Sh. Ved Prakash Chaudhary and his wife on 30.05.2003 for a consideration of Rs. 41 lacs towards cost of the land.
5. Investigation has also revealed that sometime during 2003, construction activities were started on the said plot. This fact is established from the records of Building Department of CBI No. : 78/08 Page No. : 2 (Total No.of pages: 15) MCD as well as from a Building Watch Register maintained by Tax Department of MCD. On the other hand, no building plan was ever got sanctioned by the owner. Vide letter dated 25.07.2003, SHO PS Mehrauli had also informed DC, MCD, South Zone about this unauthorized construction. From the contents of this letter it was clear that the construction activities were being done by Sh. Ved Prakash Chaudhary S/o Sh. Daya Ram. On receipt of this letter, this property was booked for unauthorized construction by Sh. P. K. Jain (A-3) on 01.08.2003. He booked the property for unauthorized construction on the ground and first floor.
6. Subsequently on 19.08.2003, Sh. P. K. Jain (A-3) proposed for issue of demolition order as the owner/builder did not respond to demolition notice dated 08.08.2003. Subsequently the matter was kept in abeyance and another note for sealing proceedings dated 12.11.2003 was initiated by Sh. P. K. Jain (A-
3). Sh. Anil Kumar (A-2), AE(B) vide note dated 12.11.2003 has proposed for initiating proceedings u/s 345-A of DMC Act i.e sealing of the unauthorized construction. This note of Sh. Anil Kumar (A-2) was recommended by Sh. Ashok Kumar Gupta (A-
1), the then EE(B) on 12.11.2003 and was also endorsed by Sh. B. R. Verma, SE. Sh. A.K. Singh, the then DC being the authority competent to issue sealing orders has approved the same on 18.11.2003. Thereafter a sealing order was passed on 29.12.2003 by Sh. A. K. Singh, the then DC.
7. It has also been revealed during investigation that although a demolition-cum-sealing programme was prepared by CBI No. : 78/08 Page No. : 3 (Total No.of pages: 15) Sh. Ashok Kumar Gupta, Ex. Engg. in consultation with Sh. Anil Kumar, AE and Sh. Pawan Kumar Jain, JE, during the month of December, 2003, however, this property was not included in the said programme without any valid justification.
8. This property was booked for a second time for unauthorized construction at 2nd floor. A second demolition order was passed by Sh. Anil Kumar (A-2) on 05.02.2004. Legally and procedurally it was incorrect to issue another notice once the demolition orders were issued earlier. Issuance of a second notice benefited the owner by delay of action. Investigation has revealed that in spite of being a commercial property, this property was not included in the demolition programme for the month of February and March, 2004. On the other hand, a fresh note dated 03.02.2004 was initiated by Sh. P. K. Jain (A-3). This note was initiated by him for contemplating sealing proceedings u/s 345-A of DMC Act. As described above, Sh. Anil Kumar (A-2), Ashok Kumar Gupta (A-1) and Sh. B. R. Verma, SE recommended for sealing the premises which was approved by Sh. A. K. Singh DC on 11.02.2004. A show cause notice was issued to Sh. Ved Prakash Chaudhary by Sh. A. K. Singh, DC on 11/23.02.2004. Thereafter a sealing order was passed on 11.03.2004.
9. Investigation has revealed that Sh. Ashok Kumar Gupta, Ex. Engg., Anil Kumar, AE and Pawan Kumar Jain, JE of MCD (South Zone) did not take any steps to seal / demolish the property and allowed it to be constructed further. Contrary to the CBI No. : 78/08 Page No. : 4 (Total No.of pages: 15) norms, the said property was booked for the third time on paper for unauthorized construction of 3rd floor on 16.02.2004 by Sh. P. K. Jain (A-3). This time also he described about the earlier bookings, however, he did not mention about the details of construction. After following procedural formalities, demolition order was passed by Sh. Anil Kumar (A-2) on 03.03.2004. This property was again left out of the demolition programme for the month of April and May, 2004. On the other hand, Sh. P. K. Jain initiated a note dated 05.03.2004 recommending action u/s 345-A of DMC Act-1957. Sh. Gupta (A-1) on 11.03.2004 forwarded this proposal to Sh. Verma, SE. Sh. Verma, SE not satisfied with the proposal gave his remark on 15.03.2004 "The unauthorized construction mentioned in the proposed show cause notice is vague and contains reference to previous files. The Status report above does not give any reference to previous files. EE(B) should look into it and take appropriate action".
10. In response to the queries of Sh. Verma SE, the matter was further processed by Sh. P. K. Jain, JE(B), (A-3), who submitted a note dated 27.03.2004. In the said note he described about previous bookings and sealing orders. The file was thereafter submitted to DC. Sh. A. K. Singh, DC observed that there was gross inaction and directed the SE to examine the matter carefully and submit the report. Later on, the whole exercise was repeated and finally the orders to issue show cause notice for sealing was passed by Sh. A. K. Singh, DC On 18.05.2004. Soon thereafter, Sh. A. K. Singh, DC was transferred CBI No. : 78/08 Page No. : 5 (Total No.of pages: 15) in July, 2004 and Sh. K. K. Mishra took over the charge of DC. He also made some queries and ultimately he approved the proposal for sealing the premises on 10.09.2004. While passing sealing order he had given a note directing SE for taking necessary action against the erring engineers who did not execute the sealing orders/demolition orders passed earlier. Investigation has revealed that the concerned file regarding follow up action against the erring Engineers was missing from the office and in fact no action has been initiated against anyone.
11. It has also been revealed that finally due to intervention of Hon'ble High Court of Delhi, demolition action on the said property was taken on 28.02.2006, 01.04.2006, 03.04.2006 and 07.04.2006 and the structure existing thereon was demolished.
12. On 16.10.2005 a General Power of Attorney was executed by M/s Sea Shell Marketing Pvt. Ltd. (A-4) through its Director Mr. Ved Prakash Chaudhary in favour of Sh. Rajesh Bhatia declaring him lawful General Attorney in respect of 55% undivided share of property of Khasra No. 218/3/1, Village Sultanpur, Tehshil Hauz Khas, Mehrauli, New Delhi. Sh. Rajesh Bhatia had paid Rs. 61 lacs as consideration of the said property.
13. Investigation has also revealed that Sh. Ved. Prakash Chaudhary (A-4) had already transferred the title of half portion of said property on 16.10.2005 vide GPA to Sh. Rajesh Bhatia, however, he also entered into a lease agreement dated 15.11.2005 with IHHR Hospitality Pvt. Ltd. Through its Managing Director Sh. Ahok Khanna for entire second floor of building in CBI No. : 78/08 Page No. : 6 (Total No.of pages: 15) question at a monthly rent/lease charges of Rs. 3,50,000/- w.e.f. 15-11-2005 for a period of 6 years and obtained a sum of Rs. 10,50,000/- as 3 months advance / security deposit through cheques.
14. Now the role of Ved Prakash Chaudhary is to be seen in the entire episode. The relevant period during which the unauthorized construction was going on is 2003-2004. During this period Sh. Ved Prakash Chaudhary was the MD of M/s Sea Shell Marketing Pvt. Ltd. As per the charge sheet, it is alleged that the engineers of building department of MCD, South Zone had entered into a criminal conspiracy with each other and with Ved Prakash Chaudhary, M.D. of M/s Sea Shell Marketing Pvt. Ltd. with an intention to facilitate Ved Prakash Chaudhary to complete unauthorized construction of a commercial complex at Khasra No. 218/3/1 Min, Mehroli Gurgaon Road, New Delhi by abusing their official position.
15. It is also alleged that Sh. Vinod Dhawan and his wife who were the directors of M/s Sea Shell Marketing Pvt. Ltd. transferred the director ship of the company to Ved Prakash Chaudhary and his wife on 30/05/2003 for a consideration of Rs. 41 Lakh towards the cost of the land. Investigation has further revealed that the construction on the plot had started some time in the year 2003 without any sanction plan, by its owner and vide letter dated 25/07/2003, SHO PS Mehrauli had informed the D.C about this unauthorized construction being done by Ved Prakash Chaudhary. This property was lateron booked several times and CBI No. : 78/08 Page No. : 7 (Total No.of pages: 15) ultimately demolished as is apparent from the charge sheet.
16. On 11-/23/02/2004 show cause notices were issued to Ved Prakash Chaudhary by DC and thereafter the property was sealed on 11-3-2004.
17. As per revenue records of Tehsil - Hauz Khas, Mehrauli the said property existed in favour of M/s Sea Shell Marketing Pvt. Ltd., 71, Amrit Nagar, New Delhi through its Director Sh. Vinod Dhawan bearing Khasra No. 218/3/1 Min vide Khatoni No. 591/138 Min. measuring one beegha.
18. During July, 2003, it was noticed by Halqua Patwari that construction of building was being carried out on the said land. As per section 81 of Delhi Land Reforms Act, 1954 no building construction on agricultural land was authorized. Halqua Patwari submitted a report to this effect to SDM (Revenue Asstt.).
19. Keeping in view the said report, a restraint order was passed by the Court of Revenue Assistant on 10-09-2003. As per the report on the notice, the said notice was received on 17-09- 2003 by one Ms. Gunjan, an employee of M/s Sea Shell Marketing Pvt. Ltd on the directions of Chaudhary Ved Prakash. It has been found during the investigation that the party did not comply with the directions, therefore an order dated 17-5-2004 was passed by the Court of Revenue Assistant and the said land was vested in Gaon Sabha and the party (A-4) was ejected thereby.
20. Mr. Ved Prakash Chaudhary had executed GPA as MD of the company on 16-10-2005 in favour of Sh. Rajesh Bhatia CBI No. : 78/08 Page No. : 8 (Total No.of pages: 15) declaring him lawful general attorney in-respect of 55% undivided share of property of Khasra No. 218/3/1 Village Sultan Pur, Tehsil Hauz Khas, Mehrauli, New Delhi. A sum of Rs. 61 Lakh as consideration for the said property was paid by Sh. Rajesh Bhatia.
21. It is also alleged against Ved Prakash Chaudhary that he had already transferred the title of ½ portion of the property on 16-10-2005 vide GPA to Sh. Rajesh Bhatia. However, he also entered into an lease agreement dated 15/10/2005 with I.H.H.R. Hospitality Pvt. Ltd. through its MD Sh. Ashok Khanna for entire second floor of the building at a monthly rent of Rs. 3,50,000/- w.e.f 15/11/2005.
22. The documents relevant in the present case are D-4 which is Pratham Suchna Pativedan bearing No. 16985 regarding booking of Unauthorized construction at Khasra No. 218, Main MG Road, New Delhi. D-11 is the complaint dated 25-07-2003, regarding unauthorized construction on land pertaining to Ved Prakash Chaudhary. D-69 is cheque No. 171530 dated 4-4-2003 for Rs. 26 lakh issued from the account No. 640769-001 of Ved Prakash Chouhdary in favour of M/s Sea Shell Marketing (P) Ltd. D-70 is the copy of statement of account showing above said payment. D-14 is the building watch register which shows that unauthorized construction started during May 2003 and owner of the said property was Ved Prakash Chaudhary. D-16 and D-17 are the registered letter dispatch register which shows that show cause notices were sent through registered post to Sh.
CBI No. : 78/08 Page No. : 9 (Total No.of pages: 15) Ved Prakash Chaudhary. D-52 is the Agreement to sell and purchase dated 9/7/03 in original pertaining to property at plot No. 218/3/1, Sultanopur, Mehrauli, New Delhi made between M/s Sea Shell Marketing Pvt.Ltd. through its Managing Director Sh. Ved Prakash Chaudhary and Sh. Rajesh Bhatia. D-54 is the General Power of Attorney in original executed on 16/6/05 by Sh. Ved Prakash Chaudhary, Director, M/s Sea Shell Marketing Pvt. Ltd in favour of Sh.Rajesh Bhatia. D-55 is the will in original executed on 16-6-2005 by Sh. Ved Prakash Chaudhary, Director M/s Sea Shell Marketing Pvt. Ltd. in favour of Sh. Rajesh Bhatia.
23. Apart from this documentary evidence, there are oral testimonies of PW 1, PW 3, PW 8 and PW 19 to the effect that the property was of Ved Prakash Chaudhary and the entire construction work was being done at his behest.
24. Sh. Ved Prakash Chaudhary at the relevant period i.e when the construction started was the Managing Director of M/s Sea Shell Marketing Pvt. Ltd. From the material on record i.e documents referred to herein above and the statement of the witnesses, it is crystal clear that Ved Prakash Chaudhary was raising the unauthorized construction as alleged, payments were made by him through his own account, he sold the property to Rajesh Bhatia and also rented out the property. He is the one who has reaped the benefit, arising out of the transactions.
25. Company is a juristic person and it cannot act on its own and cannot indulge in the violation of laws of the land. There has to be someone behind those acts. It can only act through CBI No. : 78/08 Page No. : 10 (Total No.of pages: 15) someone in flesh and blood i.e the persons who are controlling its affairs like MD and Directors. When such a situation arises than the corporate veil has to be lifted in order to find out as to who are the real persons who had indulged in the unlawful activities. When we look into the the present case, we find that Ved Prakash Chaudhary, as Managing Director of the company was at the helm of its affairs and was totally controlling the company and all the illegal construction, sale purchase and letting out was done by him. So it does not lie in the mouth of Ved Prakash Choudhary that the construction was done by the company or the company entered into criminal conspiracy with co-accused, when it is clear from the facts alleged that all the illegal construction was raised by him.
26. In my opinion, there is enough primafacie material to summon Ved Prakash Chaudhary as an accused in this case. This is as far as the facts are concerned, now it is to be seen whether at this stage when the cognizance against some of the accused persons have been taken, can Ved Prakash Chaudhary be summoned as an additional accused.
27. The legal position as far as this proposition is concerned is as follows : -
In Babu Lal Versus State of M.P. 2005 Vol. IV RCC, Hon'ble Supreme Court has held that :
"under section 193 Cr.P.C. Summoning of a person as additional accused and challan put by police before commencement of the trial, the trial court is competent to CBI No. : 78/08 Page No. : 11 (Total No.of pages: 15) add additional accused on the basis of materials submitted by the police. Though provision of section 319 of the code will not be applicable but powers under section 193 Cr.PC is available for summoning of accused."
28. In case titled as Swil Ltd. Vs. State of Delhi and others 2001 (6) SCC 670 our Hon'ble Supreme Court has held that:
"At the stage of taking cognizance of the offence, provision of section 193 Cr.PC would be applicable. As per provision the Magistrate could take cognizance of an offence and not the offender. For that purpose he is required to consider the FIR and the statements recorded by the police officer and other documents tendered along with the charge- sheet. There is no bar under section 190 Cr.P.C. that once the process is issued against some of the accused, on the next date the Magistrate cannot issue process to some other person against whom there is some material on record but his name is not included as an accused in the charge-sheet."
29. The law laid down by the Apex Court in case titled as Nisar and Another Vs. State of UP 1995 Cr.L.J. 2118 "that power to take cognizance of offence as a court of original jurisdiction available-once case is committed to court of Sessions by a Magistrate in such case the court of Sessions can summon the person whose complicity in commission of any crime can prima facie be gathered from material available on record."
30. In 1993 Cr.L.J. 1700 Kishan Singh and others Vs. CBI No. : 78/08 Page No. : 12 (Total No.of pages: 15) State of Bihar wherein it was held that"
"Power of summon additional accused no evidence led before the court and trial not commenced- person not named in the police report as accused, though cannot be summoned under section 319 court has power to do so under section 193 on the basis of documents on record and Session Court has full power to summon additional accused by invoking 193 Cr.PC."
31. In Amit Jain Vs. State and others reported in 2008 vol. 4 JCC page 2368 wherein our own High Court has held that:
"Section 190 cognizance is taken of the offence and not of an offender - the Magistrate has power and jurisdiction to take cognizance of the offence against any other person who had not been sent by police as an accused person if from the evidence collected by the police or the material or information placed before him. It appears to the Magistrate that prima facie an offence has been committed by such person." "There is no bar under section 190 Cr.PC that once a process is issued against some accused on the next date the magistrate can issue process to some other person against whom there is some material on record but his name is not included as an accused in the charge sheet."
32. Apex Court relying the precedent in Raghuvans Dubey 1967 (2) SCR 423 wherein the law laid down as follows:
"in our opinion once cognizance of offence has CBI No. : 78/08 Page No. : 13 (Total No.of pages: 15) been taken by a Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of offence; it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the person sent up by the police, some other person are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceedings initiated by his taking cognizance of an offence."
33. In view of the precedents referred hereinabove and the material available on record in the form of documents, statement of the witnesses, there is enough material to summon Ved Prakash Chaudhary as an additional accused. In view of this issue summons to Ved Prakash Chaudhary for the next date of hearing.
34. But before parting with this order, I would like to refer to the report dated 19-01-2010 filed by the CBI which really makes a reading :-
"The construction on the aforesaid land was carried out in the name of company and all the benefits were deposited in the account of the company that the company has its separate personality/entity besides its directors. During the course of investigation, no evidence came on record which primafacie prove any forgery on the part of Sh. Ved Prakash Choudhary who is having a different personality besides its company. The name of Sh. Ved Prakash Choudhary was figured in the charge CBI No. : 78/08 Page No. : 14 (Total No.of pages: 15) sheet to prosecute the company M/s Sea Shell Marketing Pvt. Ltd through him because the company was the real beneficiary".
35. From the tenor of this report, it appears as if there is some shielding game going on. I am really amazed to read this report and is unable to fathom that a company can do illegal activities and reap benefits for itself. It is pertinent to note that at that time there were only two directors i.e. Sh. Ved Pal Choudhary and his wife. If one goes by this analogy (i.e. report dated 19-01-2010) then it would be very easy for any one to form a company, violate the laws of the land and put entire blame on the company. But this can't be.
36. The Ld. predecessor of this Court has also passed an order on 26-09-2008 observing that there was ample material to proceed against Joginder Singh, A.E, MCD. The Ld. Predecessor had passed specific directions to that effect vide this order dated 26-09-2008 but till date there is no compliance of the said order. A copy of the order dated 26-09-2008 be sent to Director CBI for compliance and report.
37. Now issue summons to Ved Prakash Chaudhary for 13-05-2010.
(Announced in the open Court on 22/04/2010.) (RAJNISH BHATNAGAR) SPECIAL JUDGE 01 CBI ROHINI COURTS : DELHI CBI No. : 78/08 Page No. : 15 (Total No.of pages: 15)