Delhi District Court
C.B.I. vs . (1) Umesh Kumar Awasthi, on 11 September, 2012
IN THE COURT OF SPECIAL JUDGE (PC ACT) 01, CBI,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Special Judge (PC Act)
CC No.56/11
Unique Case ID No. 02406R0554472003
C.B.I. Vs. (1) Umesh Kumar Awasthi,
S/o Late Sh. SR Awasthi,
R/o B657, Delhi Govt. Flats,
Timarpur, Delhi.
(2) Smt. Mamta Awasthi
W/o Sh. UK Awasthi,
R/o B657, Delhi Govt. Flats,
Timarpur, Delhi.
RC No. : 7(E)/2000/CBI/SIUIX.
u/Ss : Sec. 120B IPC r/w Sec. 13(1)(e) r/w 13(2) of PC Act,
1988 and Sec. 109 r/w 120B IPC r/w Sec. 13(1)(e) r/w
13(2) of PC Act, 1988.
Date of Institution : 05.05.2003
Received by transfer on : 09.11.2011
Arguments Concluded on : 07.09.2012
Date of Decision : 11.09.2012
CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 1of 64
Appearances:
Sh. DK Singh, Ld. PP for CBI.
Sh. K. Madhavan, Sh. Maninder Dubey and Sh. RS Singhal, Ld. Counsels
for A1 UK Awasthi and A2 Mamta Awasthi.
JUDGMENT
1.0 Accused UK Awasthi and Mamta Awasthi have been tried for entering into a criminal conspiracy pursuant to which the disproportionate assets in the sum of Rs. 18,33706.31 were acquired and possessed during the check period 01.01.95 to 23.11.00. Accused UK Awasthi has also been separately charged for the offence u/S. 120B IPC and 13(1)(e) of the POC Act punishable u/S. 13(2) of POC Act. The accused Mamta Awasthi has been separately charged for entering into criminal conspiracy and abatement punishable u/S. 109 r/w Section 120B r/w Section 13 (1)(e) of the POC Act punishable u/S. 13(1)(2) of the POC.
FACTS:
1.1 Sh. UK Awasthi was born to Sh. Shiv Ram Awasthi, a practising Advocate in Kanpur, UP and joined Government service on 16.06.71 as an LDC in the Ministry of Home Affairs, New Delhi. Sh. UK Awasthi after serving with the Government of UP, joined the Weights and Measure Department of Government of Delhi on deputation as Sr. Meteorological Assistant on 03.03.79. On 23.10.85, he was permanently CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 2of 64 absorbed in the Weights and Measure Department. In December 1993, he was promoted to the post of Assistant Controller (Group B). In April, 1998, UK Awasthi was again promoted to the post of Deputy Director (Group A) on Adhoc basis initially for a period of six months which was extended from time to time thereafter.
1.2 Pursuant to the source information, RC No. 7(E)/2000/CBI/SIU.IX/N.Delhi was registered on 22.11.00 u/S 13(2) r/w Sec. 13(1)(d) and 13(1)(e) against the accused UK Awasthi alleging therein that during the period from 19952000, while the accused was posted as Deputy Director in Department of Weights and Measure, amassed huge assets in Delhi and Kanpur which were disproportionate to his known source of income. The accused had allegedly abused his official position as a public servant and obtained the illegal gratification from the owner of petrol pumps in Delhi. The check period was fixed from 01.01.95 to 23.11.2000. The investigation revealed that the accused had following assets at the beginning of check period: TABLE A S.No. Particulars Amount (Rs.)
1. Credit Balance in SB A/C. No. 13448 in the name of UK Awasthi 9,689.75 with United Bank of India, Timarpur, Delhi.
2. Credit Balance in SB A/C. No. 109 in the name of Mamta Awasthi 2,493.35 with SBI, Timarpur, New Delhi.
3. Credit Balance in SB A/C. No. 12864 in the name of Mamta 12,630.05 Awasthi with United bank of India, Timarpur, Delhi.
CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 3of 64
4. Credit Balance in SB A/C. No. 2755 in the name of Mamta 19,479.96 Awasthi in Central Bank of India, Sisamau, Kanpur TOTAL 44,293.11 1.3 During the check period, accused had following income from all known sources : TABLE B S.No. Particulars Amount (Rs.)
1. Salary of UK Awasthy 4,99,744.00
2. Salary of Ishu Upamanyu 1,27,933.50
3. Interest accrued in AB A/C. No. 13448 in the name of UK 2,604.01 Awasthy with United Bank of India, Timarpur, Delhi.
4. Interest accrued on SB A/C No. 109 in the name of Mamta 6,490.69 Awasthi with SBI, Timarpur, Delhi.
5. Interest accrued on SB A/C No. 128643 in the name of Mamta 3,815.00 Awasthi with United Bank of India, Timarpur, Delhi.
6. Interest accrued on SB A/C No. 2755 of Smt. Mamta Awasthi with 6,689.00 Central Bank of India, Sisamau, Kanpur.
7. Interest accrued on SB A/C No. 136195 of U.K. Awasthi at SBI, 479.74 Tis Hazari, Delhi. New A/C No. 1190/43395.
8. Interest accrued in PPF A/C. No. 1201 of UK Awasthi with United 9,639.94 Bank of India, Sisamau, Kanpur.
9. Interest accrued on SB A/C No. 4945 of Ishu Upamanyu with 5,996.00 United Mercantile Cooperative Bank, Sisamau, Kanpur.
10. Interest accrued on SB A/C. No. 231738 of Ishu Upamanyu with 7,415.59 UBI, Timarpur, Delhi.
11. Interest accrued on SB A/C. No. 7482 of Ishu Upamanyu with 23 United Mercantile Cooperative Bank, Sisamau, Kanpur.
12. Income from Interest free loan/gifts from relatives/friends 8,08,033.08 (AnnexureA&B)
13. Agriculture income from the ancestral land at Vill. Gujrai, Distt. 90,000.00 CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 4of 64 Kanpur Dehat, Transferred in the name of Ishu Upamanyu in the year 1995 (1995 to 2000) 14 Amount received in advance for the sale of agriculture land at Vill. 4,50,000.00 Gujrain in the name of Ishu Upmanyu TOTAL 20,18,863.82 Accused UK Awasthi incurred the following Expenditure during the check period:
TABLE C S.No. Particulars Amount (Rs.)
1. Expenditure towards payments of telephone bills of phone no. 11,119.00 2942604 installed at the residence of UK Awasthy at Timarpur, Delhi.
2. Expenditure towards electricity charges of the house of the accused 31,900.37 at Timarpur, Delhi.
3. Premium paid for insurance for scooter and car 10,134.00
4. Expenditure incurred by accused UK Awasthy towards payment of 3,830.00 house tax for his house at 164, Pankhi Road, Kalyanpur, Kanpur.
5. Expenditure incurred towards payment of electric bill for the meter 4,518.00 connection at his house at 164, Panki Road, Kalyanpur, Kanpur.
6. Expenditure incurred towards purchase of one B&W Videocon TV 3,600.00 in the name of his son Ishu Upamanyu.
7. Expenditure towards purchase of six ceiling fans at his house at 7,300.00 Kanpur
8. Expenditure towards furniture articles lying at his house 164, 1,27,432.00 Panki Road, Kalyanpur, Kanpur.
9. Expenditure towards purchase of one computer vide invoice dated 41,500.00 01/09/2000 from Anchal Computers Ltd., Shakarpur, Delhi.
10. Expenditure towards payment of fee for admission ofhis son Bharti 1,73,100.00 Vidhyapeeth College of Engg., Paschim Vihar, New Delhi
11. Expenditure towards purchase of LG Washing Machine Semi 8,800.00 CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 5of 64 Automatic from M/s. Navin Electronics, Model TownIII, Delhi.
12. LPG Connection in the name of his son Ishu Upmanyu purchased 2,232.15 from C.Lal & Sons, Kashmiri Gate, Delhi.
13. Minimum household expenses calculated @ 1/3rd of total income 1,66,581.33 of accused UK Awasthy
14. Expenditure towards payment of fee by the son of Mr. Awasthi to 6,500.00 APTECH Computers, Kamla Nagar, Delhi.
15. Expenditure towards payment of fee in favour of Patrachar 400.00 Vidhyalaya, Timarpur, Delhi.
16. Expenditure on household articles as per inventory prepared during 1,37,183.00 the searches on 23/11/2000 at the residence of accused at B657, Timarpur, Delhi taking into account only the articles purchased during the check period.
17. Expenditure on household articles as per inventory prepared during 26,600.00 the searches on 23/11/2000 at the residence of accused UK Awasthy at 164, Panki Road, Kalyanpur, Kanpur.
TOTAL 7,62,729.85 The investigation revealed that at the end of check period dated 23.11.2000, accused UK Awasthi, his wife Mamta Awasthi and son Ishu Upmanya were in the possession of the following assets : TABLE D S.No. Particulars Amount (Rs.)
1. Three storeyed building at 164, Kalyanpur, Kanpur, constructed 17,98,035.00 during AprilSeptember 2000 in the name of UK Awasthi (land inherited).
2. Construction cost on Industrial Plot No. C14 SiteIV Pnaki 4,61,000.00 Industrial Area, Kanpur, in the name of Ishu Upamanyu
3. Cost of plot no. C14, Panki Industrial Area, Kanpur (land cost). 4,27,408.01
4. Cost of Maruti Car No. DL 8CC4013 in the name of Ishy 1,10,000.00 Upamanyu purchased on 26/8/98.
5. Cost of Scooter no. DL15A6896 in the name of UK Awasthi 9,000.00 CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 6of 64
6. Credit Balance in SB A/C. No. 109 of Mamta Awasthy SBI 49,606.54 Timarpur, Delhi.
7. Credit Balance in SB A/C. No. 2755 in the name of Mamta 42,286.90 Awasthy in Central Bank of India, Sisamau, Kanpur.
8. Credit Balance in SB A/C. No. 12864 in the name of Mamta 19,945.32 Awasthy in United Bank of India, Timarpur, Delhi.
9. Credit Balance in SB A/c. No. 136195 New No. 01190/43395 of 2,100.08 UK Awasthy in SBI, Tis Hazari, Delhi.
10. Credit Balance in SB A/c No. 13448 of UK Awasthy in United 13,431.76 Bank of India, Timarpur, Delhi.
11. Credit Balance in PPF A/C No. 1201 of UK Awasthy in SBI Tis 59,639.00 Hazari Delhi.
12. Credit Balance in SB A/C. No. 231738 in the name of Ishu 48,151.77 Upmanyu with UBI, Timarpur, Delhi.
13. Credit Balance in SB A/C. No. 4945 of Ishu Upmanyu Union 12,005.07 Bank of India, Sismau Kanpur.
14. Credit Balance in SB A/c. No. 7482 in the name of Ishu Upmanyu 523.00 in United Mercantile Cooperative Bank Ltd., Kanpur.
15. FDR No. 1091503 to 1091505 all dated 12/04/98 in the name of 50,000.00 Smt. Mamta Awasthy at Union Bank of India, Sismau, Kanpur.
16. UTI Membership No. 4L9640041008211 dt. 19/11/96 in the name 30,000.00 of UK Awasthy regarding investment of Rs. 6,000/ per year w.e.f. 1996 to 2000.
17. IVP No. 56/B/090851 and No. 56/B/090852 both dtd. 13/12/95 for 1,000.00 Rs. 500/ each issued by the PO Chauki Zairib, Kanpur, UP.
TOTAL 31,34,133.39 1.4 Accused had received a net salary of Rs. 4,99,744.00 during
check period and therefore, household expenditure of the accused persons for the check period was calculated as Rs. 1,66,581/ @ 1/3rd of his salary.
CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 7of 64 The investigation revealed that coaccused Mamta Awasthi in conspiracy with accused UK Awasthi has shown big amount as gifts/loans from different relatives only to mislead and to justify the source of illgotten money of accused UK Awasthi. There was no explanation regarding the repayment of such loans. Accused Mamta Awasthi did not have any independent source of income. Investigation also disclosed that Ishu Upmanya son of the accused who had no known independent source of income has also been shown to have taken substantial amount in the form of gifts/loans from the different relatives/friends without any plausible explanation regarding the repayment of the same.
Investigation revealed that accused UK Awasthi had not intimated his department about the abovesaid transactions nor could he satisfactorily explain the source of acquisition of the assets acquired either in his name of in the name of members of his family. Sanction for prosecution was also granted against the accused UK Awasthi. Charge sheet u/S. 13(2) r/w Sec. 13(1)(d) and 13(1)(e) of POC Act, 1988 was also filed in the name of Mamta Awasthi and Ishu Upmanya.
CHARGE 2.0 Vide a detailed order dated 06.01.2012, accused Ishu Upmanya was discharged and A1 Umesh Kumar Awasthi and A2 Mamta Awasthi were charged for the offence u/S. 120B IPC r/w S. 13(1)(e) r/w Section CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 8of 64 13(2) of the PC Act. Accused UK Awasthi was separately charged for the offence u/S. 120B IPC r/w Sec.13(1)(e) r/w Section 13(2) of PC Act. Accused Mamta Awasthi has been separately charged for entering into criminal conspiracy and abatement punishable u/S. 109 IPC r/w Section 120B IPC r/w Section 13 (1)(e) r/w S. 13(1)(2) of the POC. Accused persons pleaded not guilty to the charge and claimed trial.
PROSECUTION WITNESSES 3.0 CBI examined 34 witnesses in support of its case.
3.1 PW1 Roshan Lal deposed that Ishu Upmanya had worked with Hero bricks and Strotton Pvt. Ltd. from the year 19992000. The salary details of Ishu Upmanya from May 99 to August 2000 were collected vide letter Ex. PW1/A and annexure Ex. PW1/B. 3.2 PW2 Sushil Kumar Agnihotri undertook the construction work alongwith Ajay Trivedi (PW22) of House No. 164, Kalyanpur, Pankhi Road, Kanpur, UP. Sh. Sushil Kumar Agnihotri stated that it was around 250 sq. yds. plot on which three rooms were constructed on the ground floor and there was open space in front. The construction on the ground floor was repaired and first and second floor were also raised. The accused had given CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 9of 64 the contract to PW2 Sushil Kumar Agnihotri and PW22 Ajay Trivedi only for providing labour and material was to be provided by the accused only. The witness stated that first and second floor were got constructed by the accused for the residence purpose. On the ground floor, a school under the name and style of "Jasper School" used to be run. The witnesses stated that day today construction work was used to be looked after by PW22 Ajay Trivedi. The construction work took place in 2000 and it took around 45 months. He further stated that accused had paid him Rs.2,90,000/ as labour charges through cheques in the name of Sagun Building Construction company, the detail of which are Ex. PW2/B. The witness has also submitted the detail of the material purchased for the construction which is Ex. PW2/A. As per Ex. PW2/A, the material in the sum of Rs. 3,84,330/ were purchased which included sand, stone, cement, wood, steel brick, electrical goods, paint, fabrication, glass and sanitary/plumbing material. The vouchers of the material purchased for the construction of building has been proved as Ex.PW2/C1 to C66. PW2 stated that all these materials were used to be purchased by PW22 Ajay Trivedi from the market and payments were used to be made by the accused only. The witness stated that to his estimate, there may be an expenditure of 11 lakhs on the entire construction including wooden work, electricity, plumbing, paint and purchase of all materials etc. In the crossexamination, the witness admitted that two rooms on the first floor were already existed when the construction work was started. It came in the crossexamination of this witness that CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 10of 64 accused had yet to pay Rs. 1,70,000/ to PW2 against the purchase of material from the market.
3.3 PW3 Sh. Mahender Kumar, retired officer from the office of Controllers Weights & Measure Department, proved the service book of the accused as Ex. PW3/A and Ex. PW3/B. Sh. Mahender Kumar proved the order dated 18/02/86 as Ex. PW3/C vide which accused was absorbed in Weight and Measure Deptt. of Govt. of Delhi w.e.f. 23/01/85. The order dated 18/12/1993 vide which the accused was promoted as Assistant Controller is proved as Ex. PW3/D. The witness submitted that thereafter accused was promoted as Deputy Controller on adhoc basis. The witness further submitted that the accused had submitted the family details in his department. The witness stated that accused had not intimated to the department regarding acquisition of any movable or immovable property nor did the witness find in the record any intimation regarding repair and constructions of ancestral house at Kanpur. The witness stated that vide letter dated 22.02.96 Ex. PW3/A, the accused had informed regarding transfer of the ancestral land in the joint name of his son and nephew. The witness also proved letter dated 10.01.96 of the accused regarding intimation of transfer of ancestral house at Kanpur in his name as Ex. PW3/F. CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 11of 64 3.4 PW4 Sh. Ajay Gupta remained Vice President of Delhi Petrol Pump Dealers Association from the year 1996 to 1999. He used to meet the accused regarding problems faced by the Petrol Pump dealers. The witness stated that accused had never asked for any personal favour. Sh. Ajay Gupta Stated that he had provided a carpenter namely Aas Mohammad to the accused for the purpose of wooden work and the carpenter was paid for his work by the accused only. The witness also stated that accused had bought a Maruti Car from his Manager Mr. Berry. However, he being not involved in the dealing, was not aware of the price of the car. Practically, this witness did not speak anything against the accused.
3.5 PW5 Sh. AP Sharma proved the salary statement of Ishu Upmanyu for the period May 1999 to September 2000 already proved by PW1 Sh. Roshan Lal.
3.6 PW6 Sh. Somnath Sharma forwarded the details of payment and bills from January 1999 to November 2000 totaling to Rs. 12,260/. Vide letter Ex. PW5/A, the information regarding telephone bills paid by the accused in respect of telephone no. 2942604 were furnished. It was informed that the detail of payment and bill issued for the period January 1995 to December 1998 were not available in the office due to CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 12of 64 computerisation. As per detail, the accused made a payment in the sum of Rs. 12,260/ for the period January 1999 to November 2000. 3.7 PW7 Sh. KK Mittal proved the letter Ex. PW7/A regarding expenditure incurred by the accused in respect of the electricity bill for the period February 1995 to October 2000. The accused had incurred an expenditure in the sum of Rs. 27,224/ on account of electricity charges during this period. The accused paid a sum of Rs. 4,676.37 in respect of remaining electricity charges incurred by the accused during the year 1995. 3.8 PW8 Satish Chandra proved to have given a loan of Rs. 20,000/ by cheque dated 26.05.1999 to Ishu Upmanya for the purpose of buying industrial plot. Sh. Satish Chandra stated that he was related to Ishu Upmanya and till August 2001, this loan amount was not returned. 3.9 PW9 Sh. Shyam Manohar Awasthi, first cousin of the accused stated that H.No. 164, Pankhi Road, Kalyanpur was constructed by Sh. Shiv Ram Awasthi, father of the accused in the year 198283, consisting of ground floor and two rooms on first floor. The accused also raised construction on the same property in the year 19992000. The witness stated that after the death of Sh. Shiv Ram Awasthi, he used to look after the agricultural land. The annual income from the agricultural land was stated CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 13of 64 to be Rs. 2830,000/ which was used to be shared equally by Ishu Upmanya and Saurav Awasthi. Sh. Shyam Manohar Awasthi stated that during the construction/renovation of Pankhi Road house, he used to buy the material for carpenter Aas Mohammad and had spent Rs. 60-65,000/ approximately for the payment of wooden material and labour charges. The witness further stated that the expenses made by him besides the loan of Rs.50,000/ were paid to him after the completion of construction of the house. 3.10 PW10 Sh. Chote Lal Awasthi also deposed on the similar lines regarding the annual income of Rs. 3035,000/ from the agricultural land. He also stated that after the death of Sh. Shiv Ram Awasthi, the land was transferred in the name of Ishu Upmanya and Saurab Awasthi. 3.11 PW11 Jitender Trivedi was dropped by prosecution. 3.12 PW12 Ram Kesh Sachan proved the details dated 25.05.00 regarding the sale of building material as Ex. PW12/A and Ex. PW12/B. It is pertinent to mention here that these bills are part of vouchers Ex. PW2/C1 to C66. The witness stated that the goods were collected by some Ajay Trivedi and the payment was made in cash.
CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 14of 64 3.13 PW13 Sh. Dev Narayan Shukla proved the bill no. 633 as Ex. PW13/A. The bill was relating to sale of goods (paint) to the accused in the sum of Rs.5,000/.
3.14 Similarly, PW14 Sh. Deepak Kumar Mandhani proved the bills of the bricks as Ex. PW14A1/A13. These were also part of the vouchers Ex. PW2/C1 to C66.
Both the witnesses i.e. PW13 and PW14 stated that the payments were made in cash by Ajay Trivedi.
3.15 PW15 Sh. Madan Singh Bhaduria had undertaken the job of fabrication and proved the bills Ex. PW15/A1 to A4. Payment was made by Ajay Trivedi in cash.
3.16 PW16 Smt. Sumati Mehta proved the sanction order against the accused as Ex. PW16/A. 3.17 PW17 Sh. Ajender Singh Rana, an official from Control and Measure Department, GNCT, Delhi was posted in Personnel Section in April 2000. He stated that he had put a stamp at portion A on the letter Ex. PW17/A and made an entry in the Diary register (W&M) PR Branch of CWM w.e.f. 25.11.99 (PW18/A) at Sl. No. 571 in his own handwriting in CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 15of 64 portion Ex. PW17/B. The witness stated that accused had also obtained his signatures of having received the letter. He further stated that he actually made the entry on 27.04.00 in the date 26.04.00 at the direction of the accused only and the accused kept the original letter for processing it further. The witness denied the suggestion that he had made the entry on 26.04.00 only.
3.18 PW18 Ms. Shiny Regimon, another witness from Control & Weight Measure Deptt. GNCT, Delhi was looking after the work of diary register in her department and her duty was to enter the letters received by her from various branches. The witness used to send the letter/communication to different departments/branches after putting diary no. She stated that register Ex. PW18/A used to be maintained by her. However, the witness stated that entry at Sl. No. 571 in portion Ex. PW17/B is not in her handwriting. Ms. Shiny Regimon stated that on 26.04.2000, she left the office at 5 p.m. and till that time this entry was not made and on 27/04/00 she made the first entry at Sl. No. 571A. The witness stated that after she used to leave the office or in her absence, her colleagues used to make the entry, if need arises.
3.19 PW19 Sh. Ganesh Kumar Dixit , PW20 Sh. Sudhir Kumar Shukla and PW21 Sh. Naresh Chand Tripathi were the witnesses of the CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 16of 64 same fact regarding the purchase of 5½ bigha of land from Ishu Upmanya for a sum of Rs. 6 lakhs. All the three witnesses stated that they paid a sum of Rs. 4.5 lakhs in the year 2000 and remaining sum of Rs. 1.5 lakhs was paid by cheque at the time of execution of sale deed on 21.04.2001. 3.20 PW22 Sh. Ajay Kumar Trivedi stated that he had undertaken the job of construction for the accused in the year 2000. The witness stated that initially they constructed a factory of Ishu Upmanya at the plot of around 450 sq.m. They also constructed house of Mr. U.K. Awasthi at 164, Pnakhi Road, Kalyanpur, Kanpur on a plot of 300 sq yards. In respect of the initial construction, the witness stated that the plot was constructed in three portions. In the front portion, there were two toilets alongwith the boundary. In the middle portion, there were three rooms, one verandah with a tin shed and in the back portion, there were three rooms, one store, one toilet, one kitchen, verandah and one courtyard. The back portion also had a staircase. The witness further stated that in the middle portion, the accused used to run a small school and since the defects had occurred in the roof of the middle portion, the accused wanted to get it repaired and wanted to raise construction on the floor. The witness stated that they did the job on the labour charges basis @ 50 per sq. ft. It was also agreed that PW2 and PW22 would arrange the material for which the payment would be made by the accused, however, the contract did not include the flooring, wood work, electricity and plumbing work. The witness stated that the boundary wall CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 17of 64 and the middle portion was demolished and the bricks were used in the new construction. The iron gates and windows were also used on the first floor. PW2 stated that he had raised a bill of Rs. 3,84,330/ on account of the material, out of which accused had paid Rs. 2,10,000/ The witness proved the statement Ex. PW2/A and the details of the labour charges in the sum of Rs. 3,27,500/ as Ex. PW22/A. Sh. Ajay Trivedi stated that the accused paid only Rs. 2,90,000/ through 13 cheques as reflected in Ex. PW2/B and that accused did not pay Rs. 37,500/. He further stated that material used to be brought by him only and the bills Ex. PW2/C1 to C66 were used to be issued in his name only. The witness stated that accused had got some material directly also for which the payment was made by the accused directly. The witness also stated that still accused had to pay Rs. 1,74,000/ to them. In relation to the construction of industrial shed, the witness stated that Ishu Upmanya had paid Rs. 95,000/ on account of labour charges and the payment on account of the material around Rs. 1,47,000/ were made to them. The witness further stated that a sum of Rs. 11 lakhs to 11.25 lakhs must had been spent on the construction work at 164, Pankhi Road, Kalyanpur, Kanpur.
In the crossexamination the witness admitted that amount of Rs. 1,74,000/ which were not paid by the accused is included in the amount of Rs. 11 lakhs to 11.25 lakhs. The witness admitted that site plan Ex. PW22/DA and DB are the correct siteplan before construction and after construction. The witness made certain corrections in Ex. PW22/DB CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 18of 64 indicated as "added by PW22". The witness stated in the crossexamination that for assessing the cost of construction, plinth area method, material and labour cost method and detailed or item wise calculation is used. 3.21 PW23 Sh. Tara Chand was part of the search team of CBI which was conducted at H.No. B657, Delhi Government Officers Flat, Timarpur, Delhi on 23.11.2000 and the witness proved the search memo as Ex. PW23/A. 3.22 PW24 VS Dixit had joined the search proceedings conducted by CBI at Kanpur and proved the search list as Ex. PW24/A and PW24/B. 3.23 PW25 Sh. Sudhir Kumar Sachdeva was also part of the search team at Timarpur house and proved the search memo Ex. PW25/A. 3.24 PW26 Sh. Gurmeet Singh , the then Inspr. CBI proved the seizure of documents from the bank and educational institute of Ishu Upmanya. The witness proved the seizure of the documents pertaining to A/C. No. 109 in State Bank of India, Delhi University Branch. It is pertinent to mention here that as per charge sheet A/c. No. 109 in the name of A2 Mamta Awasthi was existing even before the check period. At the end of the check period, there was credit balance of Rs. 49,606.34 and income on CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 19of 64 account of interest was calculated as Rs. 6490.69. PW26 also proved the seizure memo of bank challan dated 16.08.2000 regarding payment of Rs. 1,73,100/ as fee in respect of Ishu Upmanya, student of second year, Information Technology, Bharti Vidyapeeth, College of Engineering. The witness also proved the seizure of documents in respect of A/C. No. 12864 in the name of A2 Mamta Awasthi and ledger sheet of SB A/c. No. 13448 in the name of A1 UK Awasthi. As per charge sheet, both these accounts were also operated even before the check period and at the end of the check period in A/c. No. 12864 in the name of A1 Mamta Awasthi, there was credit balance of Rs. 19945.32 and in A/c. No. 13448 in the name of A1 UK Awasthi, there was a credit balance of Rs. 13431.76.
3.25 PW27 Sh. N.L. Banga proved the certified copy of statement of account of PPF A/c. No. 1201in the name of A1 UK Awasthi. The witness proved that as on 23.11.2000, there was closing balance of Rs. 59,639.44 which included interest in the sum of Rs. 9,639.94. The statement of account has been proved as Ex. PW27/A. Sh. NL Banga also proved the copy of statement of account of SB A/c. No. 43395 in the name of A1 UK Awasthi as Ex. PW27/B. The witness stated that as per statement of account, there was credit balance of Rs. 2100.08 which included interest in the sum of Rs. 479.74.
CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 20of 64 3.26 PW28 Sh. Anil Verma the then Regional Manager UPSIDC proved the letter dated 18.09.97 as Ex. PW28/A vide which plot No. C14, Industrial Area Panki, SiteIV, Kanpur was allotted to Sh. Sanjay Bajoria. The witness stated that subsequently vide letter dated 11.06.1999 Ex. PW28/B, the permission for transfer of abovesaid plot in the name of Ishu Upmanya was granted. The agreement between UPSIDC and Ishu Upmanya Ex. PW28/C was duly executed. The witness stated that Ishu Upmanya paid a total sum of Rs. 2,28,436.22 as communicated to CBI vide letter dated 14.08.2001 Ex. PW28/D. 3.27 PW29 Sh. Raj Kumar Gautam is the star witness of CBI. Sh. Raj Kumar Gautam, Junior Engineer (Civil) joined BSNL in February 1991 after having done diploma in Civil Engineering from Aligarh Muslim University having experience of construction of staff quarters and technical building. He had done valuation of the quarters for the purpose of rent, on the direction of his department. Sh. Raj Kumar Gautam stated that he had done valuation of the property of Sh. Awasthi at Kanpur during his deputation period with CBI. The witness stated that he was accompanied by Sh. S.K. Wadhwa, Advisor (Engineering) and Inspr. Bala Subrimaniam (Investigating Officer). At the time of inspection, one of the relative of the accused was present alongwith the accused. The witness collected all the information and gave a detailed valuation report dated 30.03.2001 Ex. CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 21of 64 PW29/A. In the crossexamination, the witness stated that for assessing the cost of construction, there are two methods namely plinth area method, which gives approximate cost of construction and another is detailed estimate method which gives more accurate value. He also admitted that while applying the plinth area method, the cost of construction is assessed on the presumption that fresh material has been used, however, if old material like brick, iron angle or slabs have been used, the cost of the same should be reduced from the cost of construction. The witness stated that he had followed the principles of valuations as laid down in the book, "Estimating and Costing" by B.N. Dutta. He admitted that the principles laid down in this book only helps in assessing the future cost of construction approximately and also guides about the existing cost. Interestingly, the witness stated that he had not read the latest addition of the book and he followed the principles laid down in the book which he had read during his studies. The witness was confronted with page 451 of the abovesaid book where it is mentioned that "plinth area estimate is only approximate, and is a preliminary estimate, to know the approximate cost before hand". The witness admitted that he did not have rough notes or the measurement books relating to the present valuation report. He stated that when he was relieved from CBI, he had left all the papers including one of the present case with the the then Executive Engineer and therefore had no knowledge about the availability of those documents. The witness stated that he made efforts to search the documents but could not find them. The witness admitted that CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 22of 64 measurement books are more authenticated and correct as compared to plinth area method. He stated that he had taken the measurements of the residential house of accused from plinth area and noted down the same in the loose sheets and the notes containing measurements were left with the CBI. The witness admitted that there were minor repairs relating to the already existing construction on the back side in the residential house. 3.28 PW30 Sh. Vijay Kumar proved the statement of account of Smt. Mamta Awasthi relating to Account No. 109 and proved that as per statement of account Ex. PW30/A, there was balance of Rs. 49,606.54 in October 2000; whereas on 01.01.95 i.e. starting of the check period, there was balance of Rs. 2493.35.
3.29 PW31 Ms. Sarita Shrivastava proved the letter Ex. PW31/A, as per which accused had joined UTI Ulip Scheme in November 1996 and had paid 6 installments of Rs. 6,000/ each. It is pertinent to mention here that during the check period, accused had made an investment in the sum of Rs. 30,000/ 3.30 PW32 Sh. M.L. Punjabi, an official witness from the office of the accused stated that he had dealt with the file of the accused at the time CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 23of 64 of pay fixation of accused. The witness found that file of the accused was put up after delay of three years.
3.31 PW33 Sh. VP Sharma, proved the salary statement of the accused from 23.10.82 to 31.10.00 as Ex. PW31/A1 to A9 alongwith covering letter Ex. PW31/B. 3.32 PW34 Inspr. RL Yadav, Investigating Officer deposed on oath that investigation of RC No. 7(E)/2000 was entrusted to him after initial investigation by Inspr. S. Balasubramany. Inspr. RL Yadav proved the FIR PW34/A and also proved seizure memo Ex. PW34/B which indicated around 29 transactions in A/C. No. 2775 in the name of Mamta Awasthi from the period 10.09.95 to 28.09.00. IO also proved the receipt memo Ex. PW34/C vide which various bills related to material purchased for construction of C164, Panki Road, Kalyanpur, Kanpur (UP) and C14, Pankhi Indistrial Area, site4, Kanpur, UP were purchased. Vide document Ex. PW34/D, the cheques issued by RP Tiwari in the name of Ishu Upmanya and Mamta Awasthi in the sum of Rs. 81,000/. Certified copy of ledger sheet of A/C. No. 685 from which the above said cheques were issued, was seized vide memo Ex. PW34/E. Vide receipt memo PW34/F, the certified copy of ledger sheet of A/C No. 11205 in the name of Smt. Geeta Pandey w.e.f. 1990 was seized. It is pertinent to mention here that as per annexure B, Mamta CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 24of 64 Awasthi had taken a loan of Rs. 20,000/ from Smt. Geeta Pandey on 02.07.2000 which is duly reflected in the statement of bank account. In Annexure A & B filed alongwith the chargesheet, IO had claimed that Ishu Upmanya had taken a loan of Rs. 45,000/ and Mamta Awasthi had taken a loan of Rs. 20,000/ from Sh. RP Tiwari. Mamta Awasthi had also received a gift of Rs. 16,000/ from Sh. RP Tiwari. Vide receipt Ex. PW34/F IO had seized ledger folio pertaining to Mamta Awasthi's account as on 31/12/94. Vide receipt memo Ex.PW34/G, the cheques issued by Sh. RS Tripathi in the sum of Rs. 20,000/ in the name of Ishu Upmanya, cheques issued by Ms. Sarla Tiwari in the sum of Rs. 15,000/ in the name of Ishu Upmanya and cheques issued by Sh. Krishna Swarop Tripathi in the sum of Rs. 40,000/ in the name of Ishu Upmanya were seized. It is interesting to note that the cheque no. 299358 dated 28.01.98, which has been seized by the IO under the same receipt memo does not bear any name, however, the IO has added this cheque in 'Annexure A' as loan having been taken from Sarla Tiwari. The certified copy of statement of account in respect of A/C. No. 609 of Smt. Sarla Tiwari, Sh. K.S. Tripathi and Poonam Tripathi, Sh. RS Tripathi and Sh. SC Tripathi were also seized vide the same seizure memo. Vide memo Ex. PW34/H, IO seized cheque no. 161476 dated 25.05.99 for Rs. 20,000/ drawn on A/c. No. 1245 of Sh. SC Tripathi in favour of Ishu Upmanya. Similarly, vide receipt memo PW34/J, cheque no. 816922 dated 31.05.99 for Rs. 20,000/ drawn on A/c No. 485 of Sh. RS Tripathi in favour of Ishu Upmanya and the certified copy of statement of account of Sh. RS CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 25of 64 Tripathi were also seized. Vide receipt memo Ex. PW34/K, DD No. 71312 dt. 07.08.2000 for Rs. 23,285.08/ drawn on A/c. No. 276 of Sh. KS Tripathi in favour of UPSIDC Ltd. was seized. In Annexure 'A' this amount has been shown as a loan having been taken by Ishu Upmanya. Vide seizure memo Ex. PW34/L, the statement of account of Sh. SS Pandey alongwith cheque of Rs. 20,000/ dated 04.06.99 in favour of Ishu Upmanya was seized. Vide seizure memo Ex. PW34/M, cheque of Rs. 50,000/in favour of Smt. Mamta Awasthi dated 15.07.00 was seized. This amount was reflected as loan taken by Mamta Awasthi from her nephew Sh. AS Awasthi. Vide receipt memo Ex. PW34/N, cheque bearing No. 102194 dtd. 11/7/2000 for Rs. 20,000/ drawn on A/c No. 7117 of Sh RN Pandey in favour of Smt. Mamta Awasthi was seized. Inspr. RL Yadav proved the search list dated 23.11.2000 in respect of search conducted at the residence of UK Awasthi for H.No. 657 B, Delhi Govt. Administrative Flats, Timarpur, Delhi as Ex. PW23/A and proved the seizure memo dated 27.11.2000 as Ex. PW34/O. IO submitted that he collected documents from Registrar of Society, Kanpur and proved a letter in this regard as Ex. PW34/P and after sanction for prosecution Ex. PW16/A was received, the chargesheet was filed. In the cross examination, IO admitted that during the course of investigation, accused gave his explanation in the form of statement No. I to VI and the same has been attached with the judicial file. IO proved the same as Ex.PW34/DA. It was admitted that in the chargesheet, IO had not mentioned about statement No. I to VI by the accused during the course of investigation. However, he stated CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 26of 64 that he gave the benefit of the same to the accused. IO admitted that he did not examine Sh. Vinod Kumar Tripathi, Dr. Prem Swaroop Tripathi, Ram Dutt Shukla, Dr. Ram Prakash Dixit and Sh. Praveen Tandon, who had filed their affidavit alongwith the explanation filed by the accused in the form of statement no. I to VI. Nor did the IO examine surveyor Sh. Rajesh Bhatia, who had conducted the valuation of the properties of the accused. IO admitted that he had investigated some aspects mentioned in the explanation and some of the aspects were not at all investigated as those had already been earlier investigated. IO admitted in the crossexamination that explanation regarding the loan from relatives has also been considered and the benefit of the same was duly given. Inspr. RL Yadav admitted that he relied upon the valuation of both the properties conducted by PW29 RK Gautam and did not refer the same to CTE or CVC. IO stated that PW29 RK Gautam did not hand over any measurement book or other notes while going back to his parent department from CBI.
3.33 PW35 DSP Rajesh Chahal had joined the search proceedings at residence of the accused at Kanpur and proved his signature on the search memo and the observation memo Ex. PW24/A and Ex. PW24/B respectively.
CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 27of 64 STATEMENT OF ACCUSED 4.0 In his statement u/S 313 Cr.PC, A1 UK Awasthi though admitted the search at his residence and stated that CBI did not prepare any inventory of the same. A1 admitted the search list of H.No. 657 Delhi Government Officers' Flat, Timarpur as correct. In respect of the transaction of A/C. No. 109 of Mamta Awasthi, accused stated that he used to receive salary in cash and used to handover the same to A2 and she used to deposit the same in abovesaid account and then used to withdraw for household expenses.
In respect of PW29 Raj Kumar Gautam accused stated that he conducted the inspection unilaterally and did not take into account his submissions. PW29 also took the measurements wrongly and had not joined the local PWD officials, in violation of CPWD Manual. Raj Kumar Gautam also did not take into account the facts that old material i.e. bricks and wooden doors and windows were duly used.
A1 further stated that assessment of PW29 was totally vague and cannot be relied upon. Accused stated that doors which were made of iron with teak design were wrongly taken as teakwood doors. In respect of payment regarding C14, Industrial Plot, the accused stated that he had made the payment only in the sum of Rs. 2 lacs against the payment of Rs. 2,28,436.22 . In respect of educational expenses of Ishu Upamanya, accused CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 28of 64 stated that study of his son was sponsored by his nephew Dr. Sushil Mishra. He further stated that since there was delay in the receipt of payment, he paid the fee of his son out of his account and later on after receiving the money from his nephew, that money was used for construction of the house. In respect of search conducted at the Kanpur residence of the accused, accused stated that he was not present and therefore, he does not know. In respect of construction of C164 Panki Road, accused stated that when the house was renovated, earlier ground floor remained as it was at the back portion. Front portion was demolished and usable items therefrom such as doors, windows, bricks etc. were used in the renovation. Two rooms and two stores in the first floor remained as they were and same did not need any renovation. The accused stated that some of his office colleagues were enemical to him, and while his case had gone to UPSC for promotion, false and frivolous complaints were lodged against him. Accused further stated that IO conducted unfair investigation with ulterior motive. The cash received by son and his wife A2 on the customary and religious occasions, were also treated as bribe money. IO did not take into account the valuation report of both the properties submitted by him.
4.1 Similarly, A2 Mamta Awasthi in her statement u/S. 313 Cr.P.C. deposed on similar lines. A2 stated that she had sold jewelery of Rs. 1,15,000/ to Mr. Praveen Tandon and she also spent Rs. 50,000/ lying CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 29of 64 with her. Accused stated that CBI illegally seized the FDRs and did not disclose the seizure of her locker.
DEFENCE WITNESSES 5.0 Accused persons examined 07 defence witnesses.
5.1 DW1 Sh. Vinod Kumar Tripathi stated that accused is his cousin. In the year 2000, Ishu Upmanya requested for finance of Rs. 1 lakh. DW! Vinod Kumar Tripathi had Rs. 17,500 with him. He arranged Rs. 78,500/ and gave Total amount of Rs. 95,000/ to Ishu Upmanya and this amount was returned to him in installment in the year 200506. The witness stated that he had filed an affidavit Ex.DW1/A in this regard before the IO. 5.2 DW2 Sh. Prem Swaroop Tripathi, an Associate Professor in Economics in DBS College, Kanpur stated that in the year 2000 he gave Ishu Upmanya, a loan of Rs. 60,000/ for building of house. The witness stated that he had submitted an affidavit Ex. DW2/A to IO regarding interest free loan given to Ishu Upmanya in cash. Perusal of the affidavit indicates that this cash was given after encashing of the FDRs.
CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 30of 64 5.3 DW 3 Sh. Rakesh Shukla also stated that his father late Sh. Ram Dutt Shukla had given a loan of Rs. 50,000/ to Ishu Upmanya in July 2000. The witness proved the death certificate of his father as Ex. DW3/B and affidavit filed by his father as Ex. DW3/A. 5.4 DW4 Sh. Praveen Tandon deposed on oath that he had purchased gold jewellery for Rs. 1,15,000/ from A2 Mamta Awasthi in the year 2000. He had also filed an affidavit Ex. DW4/A in this regard. 5.5 DW5 Dr. Ram Prakash Dixit also stated that he gave gift of Rs. 50,000/ to Ishu Upmanya and filed an affidavit Ex.DW5/A in this regard.
5.6 DW6 Sh. Rajesh Bhatia, Diploma Holder in Civil Engineering and degree in institution of Valuers from Delhi had conducted the value of property no. 164, Panki Road, Kanpur and C14 Industrial Area and proved the same as Ex. DW6/B and DW6/C. The witness stated that he had adopted the detailed estimate method for assessment of the value which is more than accused as compared to the plinth area method. The witness stated that plinth area method is adopted only for the buildings which are complete whereas in the present case both of the abovesaid buildings were incomplete. DW6 stated that in the present case as per valuation report Ex. PW6/C the CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 31of 64 valuation of property No. 164, Panki Road, Kalyanpur Kalan was Rs. 8,92,500/ and similarly, the valuation of property No. C14, Site IV, Panki Industrial Area, Kanpur was Rs. 2,98,800/ .
5.7 DW7 Sh. Dipankar Mishra proved the Revenue Record as Ex. DW7/A and DW7/B in respect of properties of the accused at Kanpur. ARGUMENTS 6.0 Sh. DK Singh, Ld. PP for CBI submitted that prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld. PP has submitted that the valuation report has duly been proved on record by the testimony of PW29 Sh. Raj Kumar Gautam. Accused did not raise any dispute regarding the valuation and therefore, now he cannot challenge the same. Ld. PP submitted that the accused persons were found in the possession of assets which were quite disproportionate to his income and therefore, they are liable to be convicted.
6.1 Per Contra, Sh. K. Madhavan, Ld. Counsel for both the accused submitted that the core of this case is the valuation of property No. 164, Panki Road, Kalyanpur, Kanpur and C14, Site IV, Panki Industrial Area, Kanpur. The valuation report proved by the prosecution is totally incomplete and totally silent about the dimensions and the rates. The witness CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 32of 64 himself is not sure about his report and therefore, cannot be believed. Ld. Counsel for the accused also emphasised that the investigation conducted by the IO is thoroughly unfair and has not taken into account the explanation of the accused. In support of his contention, Ld. Counsel for the accused has cited Rama Paswan & Ors Vs. State of Jharkhand, Crl. Appl. No. 544 of 2007, Equivalent Citation: 2007 CrLJ(SC)2750, Sajjan Singh Vs. State of Punjab, AIR 1964 SC 464, Krishnanand Agnihotri Vs. State of MP, (1997) 1 SCC 816 and Ashok Tshering Bhutia Vs. State of Sikkim, (2011) 4 SCC
402. FINDINGS 7.0 The accused persons have been charged for the offence u/S 13(1)(e) r/w 13(2) of the PC Act, 1988. The basic ingredients of Sec. 13(1)
(e) are as follows:
(i) accused is a government servant;
(ii) nature and extent of the pecuniary resources or property which were found in his possession;
(iii)what were the known sources of income of the accused i.e., known to the prosecution; and, CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 33of 64
(iv) the prosecution must prove quite objectively that such resources or property found in possession of the accused were disproportionate to his known sources of income.
If the prosecution succeeds in establishing the above said four ingredients, the offence u/S 13(1)(e) of the PC Act is complete if the accused is unable to account for such resources or property. Reference can be made to State of Maharashtra Vs. Wasudeo Ramachandra Kaidalwar AIR 1981 SC 1186 and M. Krishna Reddy Vs. State Deputy Superintendent of Police, Hyderabad, AIR 1993 SC 313.
CBI in its chargesheet has stated that accused had an income of Rs. 20,18,863.82 during the check period 1/1/95 to 23/11/2000 from all known sources. The term "all known sources" has come up for discussion in several judgments.
The offence of disproportionate assets defined in Sec. 13(1)(e) of the Prevention of Corruption Act, is committed when a public servant possesses pecuniary resources or property disproportionate to his known sources of income. In C.S.D Swami Vs. State, AIR 1960 SC 7, the Hon'ble Supreme Court held that the expression "known sources of income" must have reference to sources known to the prosecution on a thorough investigation of the case. It was not, and it could not be, contended that CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 34of 64 "known sources of income" means sources known to the accused. It is pertinent to mention here that the explanation to Sec. 13 (1)(e) was added only in the year 1988 which reads as under:
"Explanation: For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."
Thus, it is seen that, now for a source of income to qualify as a known sources of income for the purposes of Sec. 13(1)(e) of the Prevention of Corruption Act, 1988, it is essential that it should satisfy the following two conditions, namely:
1. it should be a lawful source of income, and
2. the receipt of income from such a source should have been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to the concerned public servant. As a natural corollary, it immediately follows that:
(a) any income received from a source which is not lawful cannot be considered for inclusion in the expression known sources of income for the purposes of Sec. 13(1)(e) of the said Act, even if such an income was actually received by the concerned public servant;
(b) any income, even though received from a lawful source, cannot likewise be considered for inclusion in the expression known sources of income for the aforesaid purposes, if the receipt of such income has not been intimated in accordance with the provisions of CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 35of 64 any law, rules or orders for the time being applicable to the concerned public servant.
In N. Ramakrishnaiah Vs. State of AP, 2009 CriLJ 1767, also it was held as under:
"Section 13 of Prevention of Corruption Act, 1988 (in short the 'Act') deals with various situations when a public servant can be said to have committed criminal misconduct. Clause (e) of Subsection (1) of the Section is applicable when the public servant or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account of pecuniary resources of property disproportionate to his known source of income. Clause (e) of Subsection (1), of Section 5 of the Old Act was in similar lines. But there have been drastic amendments. Under the new clause, the earlier concept of "known sources of income"
has undergone a radical change. As per the explanation appended, the prosecution is relieved of the burden of investigating into "source of income" of an accused to a large extent, as it is stated in the explanation that "known sources of income" mean income received from any lawful sources, the receipt of which has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. The expression "known source of income" has reference to sources known to the prosecution after thorough investigation of the case. It is not, and cannot be contended that "known sources of income"
means sources known to the accused. The prosecution cannot, in the very nature of things be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of Section 106, of the Indian Evidence Act, 1872 (in short, the 'Evidence Act').
The emphasis of the phrase "known sources of income" in Section 13(1)
(e) (old Section 5(1)(e)) is clearly on the word "income". It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The term "income" by itself, is classic and has a wide connotation. Whatever comes in or is received is income. But, however, wide the import and connotation of the term "income", it is incapable of being understood as meaning receipt having no nexus to one's labour, or CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 36of 64 expertise, or property, or investment, and being further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term "Income". Therefore, it can be said that, though "income" in receipt in the hand of its recipient, every receipt would not partake into the character of income. For the public servant, whatever return he gets of his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft crime or immoral secretions by persons prima facie would not be receipt for the "known source of income" of a public servant.
The legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily" and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance."
7.1 In the present case, it is not disputed that accused was a public servant during the relevant period. The prosecution has also detailed the income of the accused from known sources of income during the check period. The crucial question for determination is that whether accused had disproportionated income at the end of the check period, and if yes, whether accused has been able to satisfactorily account for the such possession. There are four important components to ascertain the culpability u/S 13(1)
(e) of the POC Act, 1988:
A) Assets at the beginning of the check period. B) Income during the check period from the known source of income. C) Expenditure during the check period. D) Assets acquired at the end of the check period. CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 37of 64 A) ASSETS AT THE BEGINNING OF THE CHECK PERIOD: 8.0 Prosecution has claimed that accused persons were in
possession of assets in the sum of Rs. 44,293.11 at the beginning of the check period. In respect of SB A/c No. 13448, SB A/c No. 109 and SB A/c No. 1264, the prosecution has examined PW26 Sh. Gurmeet Singh and PW30 Sh. Vijay Kumar. However, in respect of SB A/c No. 2755, the prosecution has not led any evidence. However, since it was for the prosecution to prove the same and they have failed to lead the evidence, the same cannot be read against the accused. Thus, at the minimum the income at the beginning of the check period has to be taken as Rs. 44,293.11. However, the accused has submitted that the accused had assets in the sum of Rs. 2,23,848.76 at the beginning of the check period. Besides, the credit balance in the saving bank accounts as shown by the prosecution in Table A, the defence has submitted that A2 Mamta Awasthi and Ishu Upmanya (son) had cash with them in the sum of Rs.20,000/ and Rs. 6,000/ respectively. However, no evidence in this regard has been produced and in absence of any material on the record, the same cannot be accepted. Besides this, the defence has submitted that A2 Mamta Awasthi had gold jewellery in the sum of Rs. 1,15,000/ which was sold on 1/5/2000 in the sum of Rs. 1,15,000/ to DW4 Praveen Tandon. In addition to this, the defence has submitted that there were 07 FDRs in the Central Bank of India in the sum of Rs. 38,555/ and the documents regarding this are available with the IO. However, the CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 38of 64 defence has not led any cogent and creditworthy evidence on record to prove that there were 07 FDRs in the name of accused and his family members and therefore, this plea of the defence cannot be accepted.
In respect of the jewelery of Rs. 1,15,000/, DW4 Praveen Tandon appeared as a defence witness and stated on oath that he had friendly relation with the family of the accused and purchased gold jewellery in the sum of Rs. 1,15,000/ from A2 Mamta Awasthi consisting of 02 kangans and one sitarami (idol) weighing approx. 200 gms in the year 2000. The witness had also filed affidavit Ex.DW4/A during the course of investigation. The witness also produced the photocopy of his cash book Mark X so as to prove his averment. IO in his cross examination has admitted that he did not examine Praveen Tandon whose affidavit was filed by the accused alongwith his explanation in the form of statement No. I to VI. However, no documentary evidence has been filed by the defence in order to prove that A2 Mamta Awasthi sold gold jewellery to DW4 Praveen Tandon to the tune of Rs. 1,15,000/. It is pertinent to mention here that DW4 Praveen Tandon himself in his testimony stated that he had friendly relations with the family of the accused. Hence, the possibility cannot be ruled out that the witness was inclined to give a version favourable to the accused. No other cogent evidence has been led by the defence in this regard. Hence, this plea of the defence cannot be accepted. Thus, in view of the discussions made herein above, I consider that the asset at the beginning of the check period can be safely taken as Rs. 44,293.11.
CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 39of 64
B) INCOME DURING THE CHECK PERIOD FROM KNOWN
SOURCES OF INCOME:
9.0 In order to prove the income, the prosecution has examined
PW1 Sh. Roshan Lal, PW5 Sh. AP Sharma, PW9 Sh. Shyam Manohar Awasthi, PW10 Sh. Chotey Lal, Pw19 Sh. Ganesh Kumar, PW20 Sh. Sudhir Prakash Shukla, PW21 Sh. Nareshchand Tripathi and PW33 Sh. VP Sharma. The testimony of all these witnesses have been discussed in detail, suffice it to say that PW1 Sh. Roshan Lal and PW5 Sh. AP Sharma have been examined to prove the salary of Sh. Ishu Upmanya. PW9 Sh. Shyam Manohar Awasthi and PW10 Sh. Chotey Lal have been examined so as to prove the agricultural income of the accused during the check period. PW19 Sh. Ganesh Kumar, PW20 Sh. Sudhir Prakash Shukla and PW21 Sh. Nareshchand Tripathi have been examined to prove the receipt of Rs. 4,50,000/ in advance for the sale of agricultural land at Village Gujaria in the name of Sh. Ishu Upmanya and PW33 Sh. VP Sharma has been examined so as to prove the salary of the accused during the check period. PW34 Sh. RL Yadav, IO in his testimon6y has also proved substantially the income from interest free loan from relatives / friends as shown in Annexure A & B. Besides this, PW27 Sh. NL Banga, bank official also proved the interest accrued in SB A/c No. 43395 and interest accrued in PPF A/c No. 1201. Except these above said witnesses, the prosecution has not examined CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 40of 64 any other witness so as to prove the income of the accused. During the course of arguments, Ld. PP for CBI pleaded that since the remaining income has not been proved the same cannot be taken into account for determining the disproportionate assets of the accused. Per Contra, Sh. K. Madhavan, Ld. Counsel has said emphatically that once the prosecution has set up a case and has admitted in the chargesheet regarding the income of the accused, it cannot take its foot back and say that since it has not been proved, the same cannot be considered while quantifying the disproportionate assets. 9.1 The prosecution sets up its case in the chargesheet and on the basis of its case, the Court takes the cognizance and then after enquiry, frames the charge against the accused persons. The accused faces the trial on the basis of charge thus framed against him or after the charge is framed the accused is expected to meet the charge only, unless and untill it has been modified, amended or set aside otherwise. The question is that whether the prosecution can withdraw from the case set up by it in the chargesheet. I consider that once the prosecution has set up its case, it is estopped from saying that since the same has not been proved it cannot be considered by the Court. The basic principle of appreciation of evidence is that the party who pleads a fact is liable to prove the same. If the party who has come up with the case fails to prove it, it cannot claim at a later stage that since this has not been proved, it be read against the opposite party. The defence in its written arguments has taken a plea that the income of the accused was Rs. CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 41of 64 27,69,854.25. The accused has taken the objection only regarding the item No. 7, 8, 9 and 12 of the table 'B' indicating the income of the accused during the check period. Item No. 7, 8 and 9 speaks about the interest accrued by the accused in the SB A/c No. 136195 and SB A/c No. 4945 (Ishu Upmanya) and PPF A/c No. 1201. Incidentally, the prosecution has proved the interest accrued by the accused in SB A/c No. 136195 and PPF A/c No. 1201 through the testimony of PW7 Sh. KK Mittal. However the prosecution has not led any evidence regarding the interest accrued in SB A/c No. 4945 of Ishu Upmanya. It is pertinent to mention here that accused has also not led any evidence so as to prove that the income shown by the prosecution under these heads is incorrect. If the accused claims that the income was more than as shown by the prosecution, the onus shifts upon the accused to prove the same. In absence of any such evidence, the plea of the accused regarding enhanced income on account of interest accrued in the aforesaid accounts cannot be accepted.
9.2 The substantial difference of income as claimed by the accused is on account on income from loans / gifts received from relatives etc. Prosecution has shown the income as Rs. 8,08,033/ in its chargesheet whereas the accused has claimed that the income from loans / gifts from relatives etc was Rs. 11,07,059.08. Inorder to fill in this gap, the defence has examined DW1 Sh. Vinod Kumar Tripathi, DW2 Sh. Prem Swaroop Tripathi, DW3 Sh. Rakesh Shukla and DW5 Dr. Ram Prakash Dixit. DW1 CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 42of 64 Sh. Vinod Kumar Tripathi deposed on oath that he had given a loan of Rs. 95,000/ to Ishu Upmanya. Similarly, DW2 Sh. Prem Swaroop Tripathi stated that he gave a loan of Rs. 60,000/ to Ishu Upmanya. DW3 Sh. Rakesh Shukla stated that he had given a loan of Rs. 50,000/ to Ishu Upmanya in July, 2000. DW5 Dr. Ram Prakash Dixit stated that when Ishu Upmanya completed his Diploma in Mechanical Engineering and joined B.Tech in IT, he gave him a gift of Rs. 50,000/ in the year 2000. All these witnesses combined together have deposed regarding a sum of Rs. 2,55,000/. It is also pertinent to mention here that all these witnesses had also given their affidavits during the course of investigation and these affidavits were filed by the accused alongwith his Statement I to VI before the IO. Investigation Officer in his cross examination admitted that he did not record the statement of the persons whose affidavits were filed by the accused alongwith his explanation in the form of Statement I to VI. However, he admitted that the explanation regarding the loans from relatives have also been considered by him and benefit of the same was duly given. If we go through the testimony of the defence witnesses as discussed above and peruse the affidavits, all of them have stated that these amounts were given by them to Ishu Upmanya in cash. If we peruse the affidavits, Sh. Vinod Kumar Tripathi had made this payment on 15/8/2000, Sh. Prem Sarup Tripathi gave interest free loan to Ishu Upmanya on 21/6/2000. Sh. Ramdutt Sharma also gave interest free loan to Ishu Upmanya on 16/7/2000 and Sh. Ram Prakash Dixit gifted a sum of Rs. 50,000/ on 13/8/2000. It is pertinent CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 43of 64 to mention here that the check period was from 1/1/95 to 23/11/2000. If we see the date of advancement of loan /gift and the end of the check period, there is a close proximity between the two. It is pertinent to mention here that in such like cases, normally the public servant gets an inkling that something is going to happen, and therefore, the possibility cannot be ruled out that some cover up exercise is done. Besides this, as I have discussed, all the payments were made in cash.
9.3 Section 269(SS) of the Income Tax Act, 1961 prohibits taking or accepting any loan or deposit from any other person otherwise by an account payee cheque or an account payee bank draft, if the amount of such loan or deposit exceeds Rs. 20,000/. The penalty for violation of this has been prescribed in Sec. 271 (D) of the Income Tax Act. Similarly, Sec. 269 (T) of the Income Tax Act, 1961 prescribes mode of repayment of loan or deposit. Sec. 269(T) also provides that no person is permitted to repay any loan or deposit to any other person otherwise by an account payee cheque or an account payee bank draft drawn in the name of the person who had made the loan or deposit if the amount of such loan or deposit (together with interest thereon) exceeds Rs. 20,000/. It is also pertinent to mention here that the loan / gift which have been accepted by the IO during the investigation were mostly through cheque / drafts. I consider that in view of the proximity of the time between the alleged date of loan / gift and the ending point of the check period, the plea of the accused regarding CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 44of 64 enhancement of income on account of loan / gift from the relatives / friends cannot be accepted. CBI during the course of investigation has rightly given the benefit from interest free loan / gift from relative / friend to the accused during the check period. The accused has also not placed any other reliable material on record to show that income was more than shown during the check period. Thus, in view of the discussion made herein above, I consider that income of the accused can be taken as Rs.20,18,863.82p.
C) EXPENDITURE DURING THE CHECK PERIOD: 10.0 Prosecution has claimed that accused had incurred an
expenditure of Rs. 7,62,729.85 during the check period. The expenditure has been depicted in Table C and the same has not been reproduced herein for the sake of brevity. The disproportionate assets of a public servant during the check period is calculated on his known sources of income and the resources or property found in his possession. The genesis of such cases are that if a public servant continues to practice corruption for a long period of time, the ill gotten money so collected by him starts getting reflected in his assets and his lifestyle. The standard of living of such a person would go up and his expenses on various items may go up astronomically. Thus, the expenditure is a significant criteria in calculating the extent of disproportionate assets. In Sajjan Singh Vs. State of Punjab, AIR 1964 SC 464, the Apex Court held that one cannot live on nothing, however, frugally the accused might have CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 45of 64 lived. In this case while no general principle was laid down by the Supreme Court regarding extent of expenses to be considered on facts, expenses were considered to be approximately 1/3rd of the total income of the accused. 10.1 While calculating the expenditure incurred by the accused during the check period there can be two kind of expenses , verifiable and nonverifiable expenditure. If the prosecution has alleged some expenditure on the part of the accused which are verifiable in nature, the prosecution is bound to prove the same. In respect of the second category of expenditure which may be known as non verifiable expenses, the general principle as laid down in Sajjan Singh's case (supra) can be applied. However, if we take 1/3rd of the total income then it would be unjust to take into account the other verifiable expenditure also. Even in respect of non verifiable expenses, the prosecution is bound to bring on record some basis on which the allegation of the prosecution could rest for recording such expenditure. Reference can be made to Madhab Chandra Talukdar Vs. CBI, 2008 CrLJ 181. It is also pertinent to mention here that in Krishnanand Agnihotri Vs. State of MP, AIR 1977 SC 796, certain expenditure relating to clothing was admitted by the accused but his defence was that part of this amount had already been considered as a part of his household expenses determined separately. The Supreme Court accepted the said defence and deducted the relevant part CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 46of 64 from the total expenditure of the accused holding that the same cannot be taken into account twice over.
Coming to the facts of the present case, the prosecution has only proved the expenditure as depicted in item No. 1, 2, 10 and 13. The expenditure on account of payment of telephone bill of phone No. 2942604 installed at the residence of A1 UK Awasthi at Timarpur, Delhi in the sum of Rs. 11,119/ has been proved by PW6 Sh. Somnath Sharma.
Similarly, expenditure towards electricity charges at the house of accused at Timarpur, Delhi has been proved by PW7 Sh. KK Mittal and his testimony has remained unassailed and unchallenged.
In respect of expenditure towards payment of fee for admission of Ishu Upmanya in Bharti Vidyapeeth Engineering College, the prosecution has examined PW26 Sh. Gurmeet Singh. He produced the document regarding payment of the fee and this fact has also not been challenged by the accused.
The prosecution has also added the expenditure in the sum of Rs. 1,27,432 towards furniture articles lying at his house No. 164, Pankhi Road, Kalyanpur, Kanpur and expenditure of household articles as per inventory prepared on the basis of searches at the residence of accused at B657, Timarpur, Delhi in the sum of Rs. 1,37,183/. Taking into account the only articles purchased during the check period, the prosecution has also added a sum of Rs. 26,600/ as an expenditure on household articles as per inventory prepared during the searches on 23/11/2000 at the residence of A1 CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 47of 64 UK Awasthi at 164, Pankhi Road, Kalyanpur, Kanpur. In respect of the household expenses, IO has stated that the accused has received a net salary of Rs. 4,99,744/ and on the basis of guidelines, household expenses of the accused for the check period has been calculated at 1/3rd of his salary income i.e. Rs. 1,66,581.33. It is surprising to note that in respect of the expenditure, prosecution has examined the witnesses only in respect of item No. 1, 2 and
10. Besides, this the search memo / inventory / observation memo have been proved so as to prove the item No. 8, 16 and 17. Except this, the prosecution has not led any evidence so as to prove the expenditure for the reasons best known to them. The expenditure during the check period is an important component to assess the assets, as the expenditure is deducted from the income so as to find out that what was in the hand of the accused to have its savings or to procure the assets.
10.2 Sec. 101 of the Indian Evidence Act, specifically provides that the party who desires any Court to give any judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. It further provides that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustration 'A' of Sec. 101 Indian Evidence Act also provides that if 'A' desires the Court to give judgment that 'B' shall be punished for a crime which 'A' says 'B' has committed, 'A' must prove that 'B' has committed the crime. In the context of the present case, the prosecution wants this Court to CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 48of 64 give a verdict that accused had a lesser amount in his hand in the form of assets at the end of the check period as compared to which actually he was having. It is also the golden principle that in a criminal trial prosecution is duty bound to prove its case beyond reasonable doubt and it cannot take benefit of the weakness of the case of the defence. It may be mentioned that if the burden of proof lies on a party, that party must fail, if it, does not discharge the burden by giving evidence. In the criminal trial, the onus of proving the general issue never shifts and it lies upon the prosecution to prove, by relevant evidence and beyond reasonable doubt, the guilt of the accused. There is an old maxim "In dobio secundum reum potius quam secundum actorem litem dari operter"(where the case is doubtful, the benefit should be given to the defendant rather than the plaintiff.) The prosecution for the reasons best known to them have not led any substantial evidence to prove the majority item of expenditure as depicted in Table C. Therefore, I consider that regarding the items in Table C, of which the prosecution has not led any evidence, cannot be read against the accused.
In respect of item No. 13 relating to minimum household expenses calculated at 1/3rd of the total salary of the accused, in the sum of Rs. 1,66,581.33, the accused in his written synopsis has claimed that this be taken as Rs. 1,48,600/. However, the accused has not led any evidence as to why this amount be taken as Rs. 1,48,600/. It is also pertinent to mention here that prosecution also disappointed the Court by not leading any CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 49of 64 evidence as to how this figure was raised. Though in the chargesheet it has been stated that this amount has been taken as 1/3rd of the salary income of the accused but during the trial, the prosecution did not speak even a single word regarding this. If we take Sajjan Singhs case (supra), such expenses can be taken as 1/3rd of the total income of the accused, but in that case other expenses cannot be taken into account because then it will be a case of double calculation. Therefore, going by the analogy in Sajjan Singh's case (supra) that a person cannot live on nothing, this amount of Rs. 1,66,581.33 is taken as minimum household expenses calculated at 1/3rd salary income of the accused.
Now, we are left with item No. 8, 16 & 17. These have been proved by the witnesses PW23 Sh. Tarachand, PW24 Sh. VS Dixit and PW25 Sh. Sudhir Kumar Sachdeva. These witnesses were part of the raid proceedings and are signatory to the search memo / inventory / observation memo. The accused was duly present at the time of raid at his official accommodation B657, Timarpur, Delhi and his relatives were present at the time of raid at his Kanpur house. The accused has not raised any objection regarding the same. In the cross examination also there is no material so as to challenge the valuation of household articles found at the time of the search. Thus, item No. 16 and 17 are taken as correct in the expenditure of the accused.
CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 50of 64 In respect of item No. 8, i.e. expenditure towards furniture articles lying at C164, Pankhi Road, Kalyanpur, Kanpur in the sum of Rs. 1,27,432/, I consider that this amount cannot be added in the expenditure of the accused for two reasons. Firstly, it is a matter of record, and not disputed by either of the party that a school was running in the same premises. This school was running even before the check period. This is not the positive case of the prosecution that these furniture articles were purchased by the accused during the check period. The document filed by the prosecution itself shows that this school was earlier run by late father of the accused. The documents Ex.P37/1 to P37/5 on record were seized by the IO vide memo Ex.PW34/D. Therefore, it cannot be ruled out that this furniture was already lying at the school premises. Even otherwise, the prosecution was duty bound to prove the expenditure on furniture by way of positive evidence. Thus, I consider that Table C is required to be redrawn on the basis of proved evidence led by the prosecution.
TABLE C (post evidence)
S.No. Item No. Particulars Amount (Rs.)
1. Item I (item 1 in the Expenditure towards payments of telephone 11,119.00
expenditure bills of phone no. 2942604 installed at the
mentioned in the residence of UK Awasthy at Timarpur,
chargesheet) Delhi.
2. Item - II (item 2 in Expenditure towards electricity charges of 31,900.37
the expenditure the house of the accused at Timarpur, Delhi.
mentioned in the
chargesheet)
3. Item - III (item 10 in Expenditure towards payment of fee for 1,73,100.00
CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 51of 64
the expenditure admission ofhis son Bharti Vidhyapeeth
mentioned in the College of Engg., Paschim Vihar, New Delhi
chargesheet)
4. Item IV (item 13 in Minimum household expenses calculated @ 1,66,581.33
the expenditure 1/3rd of total income of accused UK Awasthy
mentioned in the
chargesheet)
5. Item - V (item No. Expenditure on household articles as per 1,37,183.00
16 in the expenditure inventory prepared during the searches on
mentioned in the 23/11/2000 at the residence of accused at
chargesheet) B657, Timarpur, Delhi taking into account
only the articles purchased during the check
period.
6. Item - VI (item No Expenditure on household articles as per 26,600.00
17 in th expenditure inventory prepared during the searches on
mentioned in the 23/11/2000 at the residence of accused UK
chargesheet) Awasthy at 164, Panki Road, Kalyanpur,
Kanpur.
TOTAL 5,46,483.70
Thus, the total expenditure during the check period can be taken as Rs. 5,46,483.70 D) ASSETS ACQUIRED AT THE END OF THE CHECK PERIOD:
11.0 Prosecution in its chargesheet has claimed that accused had assets in the sum of Rs. 31,34,133.39 at the end of the check period as shown in Table D in the earlier part of my judgment and the same has not been reproduced for the sake of brevity. Regarding this list also at the outset it may be mentioned that the prosecution has not led any evidence regarding CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 52of 64 item No. 4 i.e. Maruti Car No. DL8C C4013, item No. 5 scooter No. DL15 6896, item No. 7 credit balance in SB A/c No. 2755 in the name of A2 Mamta Awasthi, item No. 12 credit balance in SB A/c No. 231738 in the name of Ishu Upmanyu, item No. 13 credit balance in the SB A/c No. 4945 in the name of Ishu Upmanyu, item No. 14 credit balance in SB A/c No. 7482 in the name of Ishu Upmanyu and item No. 15 FDR No. 1091503 to 1091505 dtd. 12/4/98 in the name of A2 Mamta Awasthi. Since the prosecution has not led any evidence regarding the above said items of Table D, the same cannot be considered for the purpose of calculating the disproportionate assets.
In respect of the remaining items i.e. item No. 6 regarding credit balance in A/c No. 109 of A2 Mamta Awasthi, item No. 8 credit balance in SB A/c No. 12864 in the name of A2 Mamta Awasthi, item No. 9 regarding credit balance in SB A/c No. 136195 new No. 01190/43395 of A1 UK Awasthi, item No. 10 regarding credit balance in SB A/c No. 13448 of A1 UK Awasthi, item No. 11 credit balance in A/c No. 1201 of A1 UK Awasthi, item No. 16 UTI membership No. 4L9640041008211 dtd. 19/11/96 in the name of A1 UK Awasthi regarding investment of Rs. 6,000/ per year for the year 1996 to 2000, prosecution has duly examined PW30 Sh. Vijay Kumar, PW26 Sh. Gurmeet Singh, PW27 Sh. NL Banga and PW31 Ms. Sarita Srivastava, respectively.
In respect of item No. 17 IVP No. 56/B/090851 and No. 56/B/090852 both dtd. 13/12/95, also prosecution has not led any evidence. CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 53of 64 There are only three contentious issues in the assets at the end of the check period i.e. item No. 1, 2 and 3 and these are entitled to be discussed separately.
(1 & 2) House No. 164, Kalyanpur, Kanpur and Industrial Plot No. C14, Site IV, Panki Industrial Area, Kanpur:
CBI has added a sum of Rs. 17, 98,035/ as asset at the end of the check period of H. No. 164, Kalyanpur, Kanpur on the basis of valuation report Ex.PW29/A. CBI examined PW29 Sh. Raj Kumar Gautam so as to prove the report regarding valuation of properties No. 164, Kalyanpur, Kanpur and C14, Site IV, Panki Industrial Area, Kanpur. As per report Ex.PW29/A, Sh. Raj Kumar Gautam held that the valuation of 164, Kalyanpur, Kanpur on account of cost of construction on the plot has been worked out on approved CPWD Plinth Area rate to be Rs. 20,44,500/. The valuer gave 4% rebate on account of the fact that work was got executed through labour rate contract and material was partly arranged by the owner and partly by the contractor on owner's behalf. The valuer held that the net cost of construction comes out to Rs.19,62,700/.
In respect of property No. C14, Sector IV, Panki Industrial Area, Kanpur, the valuer held the cost of construction to be Rs. 4,61,000/ after giving 4% rebate. At the outset it is not explained that how the cost of construction of 164, Kalyanpur has been taken as Rs. 17,98,035/ in the chargesheet as compared to Rs. 19,62,700/ assessed by the valuer. There is CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 54of 64 no explanation either in the chargesheet or in the evidence of the prosecution that what is the basis of taking the value less as assessed by the valuer. If we peruse the report of PW29 Raj Kumar Gautam, it is clear that the valuer was Jr. Engineer (Civil) with the CBI. He took into account the plea of the accused as well as the contractor and thereafter, assessed the value on the basis of CPWD plinth area rate. It is an admitted fact that this valuation does not include the cost of land. It is interesting to reproduce the concluding lines of this report dtd. 30/3/2001 which reads as under:
"it will not be out of place to mention that in CBI/AC, criteria for valuation of properties is based on approved plinth area rates with appropriate cost index enhanced or deducted to bring it to mid period of construction is quite approximate as it is based on plinth area rates and not on detailed evaluation. If more detailed valuation is required, the case may please be referred to CTE/CVC."
Similar observations have been made by the valuer while concluding his report regarding C14, Sector IV, Panki Industrial Area, Kanpur. In the cross examination, PW29 Raj Kumar Gautam admitted that he does not have any rough notes or the measurement book relating to the valuation report. The witness stated that when he was relieved from CBI, he had left all his papers including one of the present case with his Executive Engineer. The witness also stated that he had taken the measurement of the residential house of accused from plinth area and noted down the same in the loose sheets. It also came in his cross examination that while applying the plinth area method, the cost of construction is assessed on the presumption CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 55of 64 that fresh material has been used, however, if old material like brick, iron angle and slabs have been used, the cost of the same should be reduced from the cost of construction. IO in his cross examination simply stated that he only relied upon the valuation of PW29 Sh. Raj Kumar Gautam of both the properties and did not refer the same to CTE or CVC for further valuation. IO also stated that PW29 Raj Kumar Gautam did not hand him over any measurement book or other notes while going back to his parent department from CBI. It is an admitted fact that some construction was already existing at 164, Kalyanpur, Kanpur. It is also a matter of record that alongwith the report Ex.PW29/A, there is no document indicating any calculation. There is not even an iota of evidence so as to show what were the basis of reaching to the valuation as shown in the valuation report Ex.PW29/A. Ld. PP argued very emphatically during the course of arguments that if accused had any doubt over the valuation report, he should have raised the plea for the fresh valuation. Ld. PP stated that since accused did not raise any dispute, the valuation report of CBI is entitled to be admitted. I consider that this plea of the Ld. PP does not hold any force. The copy of the valuation report was supplied to the accused only after the chargesheet was filed. There was no occasion for him to challenge the valuation report during the course of investigation. It is surprising that the valuation officer himself is writing in the report that the report is quite approximate and if more detailed valuation is required, it may be referred to CTE/CVC. As per CPWD Manual, 2012 proved on record as Ex.PW29/DC, the valuation on the plinth area or length CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 56of 64 is only for making preliminary estimate. This manual provides that this preliminary estimate is made only for accord of Expenditure Sanction. Professor BN Dutta in his 26th revised edition of Estimating and Costing in Civil Engineering Ex.PW29/DA has mentioned that plinth area estimate is calculated by finding plinth area of the building and multiplying the plinth area rate. Thus, atleast the valuer was duty bound to furnish to the court about the plinth area measurements and plinth area rates. I consider that report Ex.PW29/A does not inspire the confidence of the court and cannot be accepted.
Accused in his defence has examined DW6 Sh. Rajesh Bhatia so as to prove the valuation report of 164, Kalyanpur, Kanpur and C14, Sector IV, Panki Industrial Area, Kanpur. Sh. Rajesh Bhatia, Diploma holder in Civil Engineering and degree holder from Institution of Valuers from Delhi and earlier had worked for around 22 years in CPWD and Income Tax Department. He started his own profession of Civil Engineering since 1996. Sh. Rajesh Bhatia stated that he has given the valuation report of property No. 164, Kalyanpur, Kanpur and C14, Sector IV, Panki Industrial Area, Kanpur at the request of the accused. He proved the complete valuation report alongwith Annexure Ex.DW6/B and Ex.DW6/C. The witness stated that he had adopted the detailed estimate for assessment of the value which is more accurate as compared to the plinth area method. He further stated that the plinth area method is adopted only when the building is complete. However, in the present case, both the buildings were incomplete. As per CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 57of 64 Ex.PW6/C, the valuation of property No 164, Panki Road, Kalyanpur, Kanpur was Rs. 8,92,500/ and the valuation of property No. C14, Site IV, Panki Industrial Area, Kanpur was Rs. 2,98,800/. In the cross examination, CBI chose not to cross examine this witness regarding the valuation given by the defence witness. The method of valuation has not been challenged by the CBI in the cross examination. I have gone through the valuation report proved by the defence as Ex.PW6/B and Ex.Pw6/C. Both the valuation reports are detailed in nature and gives all the dimensions and the basis of calculation. It has also duly annexed siteplan with the same. The CBI in its cross examination has not challenged the measurements and the rate given in the report. The initial burden was on the prosecution to prove the valuation claimed by them in the chargesheet, however, they failed in the same. The accused by filing the valuation report on record has taken this onus and by way of testimony of DW6 Rajesh Bhatia has successfully proved the same. I consider that the valuation report filed by the defence is more accurate and plausible as compared to the report filed by the prosecution. Thus, the valuation of property No. 164, Kalyanpur, Kanpur is Rs. 8,92,500/ and construction cost of C14, Site IV, Panki Industrial Area is taken as Rs. 2,98,800/.
Ld. Defence counsel has submitted that out of the valuation, the amount not paid by the accused as admitted by PW22 Ajay Kumar Trivedi and PW2 Sushil Kumar Agnihotri be deducted. I consider that the evidence regarding this is not cogent and creditworthy. It does not appeal to the reason CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 58of 64 that in the 10 years accused who had sufficient source of income would not pay this amount and PW2 Sushil Kumar Agnihotri and PW22 Ajay Kumar Trivedi would also remain silent and would not take any steps for recovery of this amount Thus, the cost of construction is taken as Rs. 8,92,500/ and Rs.2,98,800/.
(3) Cost of plot No. C14, Panki Industrial Area, Kanpur:
The CBI in its chargesheet has mentioned the cost of plot No. C14, Panki Industrial Area, Kanpur as Rs. 4,27,408.01. In respect of this, prosecution has examined PW28 Sh. Anil Verma who was the then Regional Manager, UPSIDC. Sh. Anil Verma specifically stated that Ishu Upmanya had made a total payment in the sum of Rs. 2,28,436.22 against the above said plot and he communicated this fact vide letter dtd. 14/8/01 (Ex.PW28/D). There is no other evidence on the record so as to prove that cost of plot No. C14, Panki Industrial Area was Rs. 4,27,408.01. I have perused the letter Ex.PW28/D in which out of total payment of Rs.
2,28,436.22, payment of Rs. 21,028.21 has been made on 9/5/01 i.e. after the check period. Thus, the cost of plot of land can be taken as Rs. 2,07,408/.
11.1 In view of the discussions made here in above, Table D is to be redrawn which is as follows:
CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 59of 64 TABLE D (post evidence) S.No. Particulars Amount (Rs.)
1. Three storeyed building at 164, Kalyanpur, Kanpur, constructed 8,92,500.00 during AprilSeptember 2000 in the name of UK Awasthi (land inherited).
2. Construction cost on Industrial Plot No. C14 SiteIV Pnaki 2,98,800.00 Industrial Area, Kanpur, in the name of Ishu Upamanyu
3. Cost of plot no. C14, Panki Industrial Area, Kanpur (land cost). 2,07,408.00
4. Credit Balance in SB A/C. No. 109 of Mamta Awasthy SBI 49,606.54 Timarpur, Delhi.
5. Credit Balance in SB A/C. No. 12864 in the name of Mamta 19943.32 Awasthy in United Bank of India, Timarpur, Delhi.
6. Credit Balance in SB A/c. No. 136195 New No. 01190/43395 of UK 2,100.08 Awasthy in SBI, Tis Hazari, Delhi.
7. Credit Balance in SB A/c No. 13448 of UK Awasthy in United Bank 13431.76 of India, Timarpur, Delhi.
8. Credit Balance in PPF A/C No. 1201 of UK Awasthy in SBI Tis 59,639.00 Hazari Delhi.
9. UTI Membership No. 4L9640041008211 dt. 19/11/96 in the name of 30,000.00 UK Awasthy regarding investment of Rs. 6,000/ per year w.e.f.
1996 to 2000.
TOTAL 15,73,429.44 11.2 Section 3 of the Evidence Act defines "Proved" as follows:
"Proved". A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
Further, S.114 of the Evidence Act reads as follows:
CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 60of 64 "114. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
Thus, the fact is said to be proved when after considering the matters before it, the Court believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In coming to its belief the Court may presume existence of any fact which it thinks likely to have happened having regard to the natural course of event, human conduct and public and private business, in relation to the facts of each case. I consider on the basis of material on record that assets at the end of the check period, as claimed by the prosecution, cannot be deemed to have been proved. 12.0 The basic premises of the offence u/S 13(1)(e) is that the prosecution is required to establish that the pecuniary assets acquired by the public servant are disproportionately larger than his known source of income and it is for the public servant to account for such excess. The offence becomes complete on the failure of the public servant to account for or explain such excess. This Court after appreciating the evidence on record and taking into account the explanation offered by the accused, has reached to certain figures as mentioned in Table A to D. The final calculations can be made as follows:
CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 61of 64 TABLE A Assets at the beginning of the check period 44293.11 ..........
TABLE B Income of the accused during the check period 20,18,863.82 .........
TABLE C Expenditure of the accused during the check period 5,46,483.70 ..........
TABLE D
Assets at the end of the check period 15,73,429.44
.........
TABLE E
A. Assets acquired during the check period: 15,29,136.33
Assets at the end of check period: (Table D) 15,73,429.44
Assets at the beginning of check period: (Table A) () 44,293.11 15,29,136.33 B. Expenditure during the check period (Table C) 5,46,483.70 C. Total 20,75,620.03 D. Income during the check period (Table B) 20,18,863.82 E. Assets Disproportionate (CD) % of DA = 2.8% 56,756.21 F. % of disproportion E/D*100=2.8% CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 62of 64
13.0 In Krishnanand Agnihotri Vs. State of MP, AIR 1977 SC 796, the Apex Court found that against an aggregate surplus income of Rs. 44,383.59 which was available to the appellant during the period in question, the appellant possessed total assets in the sum of Rs. 55,732.25. The assets possessed by the appellant were thus, found in excess of the surplus income available to him. However, since the excess was comparatively small - less than 10% of the total income of Rs. 1,27,715.43, the Apex Court did not think it right to hold that the assets found in the possession of the appellant were disproportionate to his known sources of income, so as to justify the raising of presumption. Similarly, in Ashok Tshering Bhutia Vs. State of Sikkim, 2011 (4) SCC 402, the Apex Court after taking into account all the evidence, found that only a sum of Rs. 2.7 lakhs remains unexplained. Relying upon State of Maharashtra Vs. Pollonji Darabshaw Daruwalla, AIR 1988 SC 88, wherein it was inter alia held as under:
" ...........on a consideration of the matter, it cannot be said that there is no disproportion or even a sizeable disproportion. .... There are also other possible errors in the calculations in regard to point (c). The finding becomes inescapable that the assets were in excess of the known sources of income.
But on the question whether the extent of the disproportion is such as to justify a conviction for criminal misconduct........ A somewhat liberal view requires to be taken of what proportion of assets in excess of the known sources of income constitutes "disproportion" for purposes of S. 5(1)(e) of the Act."
The Supreme Court inter alia held that the alleged unexplained income is marginal / paltry sum which every government employee can save CBI Vs. Umesh Kumar Awasthi & Anr. CC No. 56/11 Page 63of 64 every year. In the present case the extent of disproportionate income is meagre which is not sufficient to record the conviction. Hence, A1 Umesh Kumar Awasthi and A2 Mamta Awasthi are acquitted of the charge u/S 120B IPC r/w S. 13(1)(e) r/w Section 13(2) of the PC Act and u/S. 109 IPC r/w Section 120B IPC r/w Section 13 (1)(e) r/w S. 13(1)(2) of the PC Act, 1988.
Accused persons are on bail. Sureties are discharged. Bail bond / surety bond cancelled. Original documents, if any, on record may be returned to them against proper acknowledgment.
13.1 In terms of section 437(A) Cr.P.C., accused persons are directed to furnish bail bond in the sum of Rs.20,000/ each with one surety each in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bonds shall be in force for 6 months. 14.0 File be consigned to RR.
Announced in Open Court (Dinesh Kumar Sharma )
on 11.09.2012 Spl. Judge (PC Act) : CBI01
Saket Courts : New Delhi.
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