Delhi District Court
Cc No.133/13 - Cbi vs . Mohd. Ahmed & Ors on 8 July, 2014
1
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08 (CENTRAL),
TIS HAZARI COURTS, DELHI.
CC No. : 133/2013
RC No. : SID 2006 E002
PS : CBI/EOU-VI/New Delhi
U/s : 120B r/w 465, 218 IPC and Section 13(2) r/w 13(1)(d)
PC Act 1988 and substantive offences thereof.
Unique ID No. 02401R1087682008
Central Bureau of Investigation
Versus
1. Mohd. Ahmed
S/o Shri Ashfaq Ahmed,
R/o K-22C, LIG Flats, Sheikh Sarai Phase-II, New Delhi.
2. Dr. Ram Narayan Kalra
S/o Late Shri Tulsi Dass Kalra
R/o A-77, Kirti Nagar, New Delhi - 110015
3. M/s Kalra Hospital Ltd.
Represented through Dr. Ram Narayan Kalra
S/o Late Shri Tulsi Dass Kalra
R/o A-77, Kirti Nagar, New Delhi - 110015
Date of FIR : 10.10.2006
Date of Institution : 13.08.2008
Arguments concluded on : 07.07.2014
Date of Judgement : 08.07.2014
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors
2
JUDGEMENT
1. As per case of prosecution, a preliminary enquiry No. PE SID 2006 E 002 was registered in CBI on 10.05.06 against Shri Vijay Kadyan, the then Executive Engineer, West Zone, MCD, Rajouri Garden on the basis of directions issued by the Hon'ble High Court of Delhi in WP (C) No. 4582/2003 (Kalyan Sansthan Social Welfare Association Vs. Union of India & Others) relating to allegations of misconduct, as large number of unauthorized constructions took place in Municipal West Zone of MCD on account of nexus within hierarchy in Engineering Department, builders as well as their political bosses. The said enquiry was conducted by Shri S.K. Peshin and on the basis of findings during Preliminary Enquiry, FIR (Ex.A1) u/s 120B, 193 IPC, Section 13(2) r/w 13(1)(d) of PC Act, 1988 was registered against Shri Vinod Kumar, AE, Shri A.P. Sharma, AE, Mohd. Ahmed, JE and owners of properties bearing no. J-117, Rajouri Garden, Z-6, Rajouri Garden, New Delhi and A-5, Kirti Nagar, New Delhi. The case was further marked for investigation to Inspector K.S. Lohchab. It may be further observed at this stage itself that separate chargesheets were filed by CBI in respect of cases pertaining to J-117, Rajouri Garden (i.e. CC No.134/13) and A-5 Kirti Nagar, New Delhi (CC No.133/13 i.e. the present case). No other officer from MCD except Mohd. Ahmed, JE alongwith owners of the respective properties have been arrayed as accused in respective chargesheets though Shri Vinod Kumar, AE, Shri A.P. Sharma, CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 3 AE were named in the FIR and the preliminary enquiry itself was registered against Shri Vijay Kadyan, EE, MCD, West Zone Rajouri Garden.
2. In brief, the contents of FIR which was registered on the basis of preliminary enquiry conducted by Shri S.K. Peshin may be noticed which forms the foundation of the investigation and chargesheet.
As per FIR, during course of enquiry it was revealed that Shri Vinod Kumar, the then AE, MCD West Zone in conspiracy with Shri A.P. Sharma, AE and Mohd. Ahmed, JE, MCD West Zone during the period from February 2003 to September 2004 abused their official position as public servants and caused pecuniary advantage either to themselves or to the owners of the properties by not taking any action for demolition in respect of unauthorized construction carried by the owners of property no. J-117, Rajouri Garden, Z-6, Rajouri Garden and A-5 Kirti Nagar, New Delhi.
It is further alleged in FIR with reference to chargesheet CC No.134/13 that Vinod Kumar, AE on the basis of report dated 09.07.03 submitted by Mohd. Ahmed, JE ordered for the demolition of unauthorized construction carried out at J117, Rajouri Garden, New Delhi on 09.07.03 as per policy of the department on account of the failure on the part of the owner/builder of the said building to respond to the show cause notice dated 24.06.03 and demolition notice dated 01.07.03. However, in furtherance of the conspiracy Mohd. Ahmed, JE did not demolish the unauthorized construction at J117, Rajouri Garden on 10.07.03, 29.07.03 and 22.08.03 and submitted a CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 4 false report as a token of having carried out partial demolition of the unauthorized construction in respect of room and mumty of a room at the third floor of the said property on 28.08.03 with assistance of police force. Further, this false report was submitted with a dishonest intention to save the said property from demolition. It was also revealed that on the said date, the demolition was carried out at J140 Rajouri Gardena and not at J117, Rajouri Garden, New Delhi. Shri Vinod Kumar to whom the said report was marked, directed to "try again" but no demolition after 28.08.03 was carried out in the property.
It is further alleged in FIR with reference to present chargesheet (CC No.133/13) that property no. A5 Kirti Nagar, New Delhi was booked under no. 65/03 on 10.02.03 by Mohd. Ahmed, JE for having carried deviation/excess coverage against the SBP at basement, GF, FF and SF in the rear. Accordingly, a show cause notice was issued by Shri A.P. Sharma to the owner on 10.02.03 and he also approved issue of demolition order on the owner on 18.02.03. Enquiry further revealed that vide order dated 26.02.03 based on the report of Mohd. Ahmed, JE the unauthorized construction was ordered to be demolished. However, in furtherance of the conspiracy between A.P. Sharma and Mohd. Ahmed with the purpose of causing pecuniary advantage either to themselves or to the owner of the said building i.e. A5 Kirti Nagar, New Delhi, the said demolition in respect of unauthorized construction was not carried out on 03.05.03 on account of non availability of force. Enquiry further revealed that Mohd. Ahmed in furtherance of conspiracy fabricated records showing CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 5 demolition with the help of the police force at the said property in respect of roof and SF in the rear set back and demolition of two partition walls with the help of police force and no bill for demolition charges was raised. As such, the FIR was registered on the basis of aforesaid enquiry proceedings for commission of offences punishable under Section 120B, 193 IPC and Section 13(2) r/w 13(1)(d) PC Act 1988 against Vinod Kumar, AE, A.P. Sharma, AE and Mohd. Ahmed, JE.
The facts relating to Z6 Rajouri Garden in FIR are not being adverted to since the same are not relevant for the disposal of chargesheets investigated in respect of J117 Rajouri Garden and A5 Kirti Nagar, New Delhi.
3. In the aforesaid background, on registration of RC (FIR) by CBI, the case was further investigated by PW23 Inspector K.S. Lohchab and chargesheet was filed u/s 173 Cr.P.C.
In nutshell, the case of prosecution on investigation, is that, accused Mohd. Ahmed (A-1) while acting in the capacity of a public servant and functioning as Junior Engineer (Bldgs.) in the office of Executive Engineers (Bldgs.) West Zone, Area of Municipal Corporation of Delhi during the period 2003-04 was responsible and duty bound to demolish all the unauthorized constructions which came to his notice in the various wards of West Zone of MCD, Delhi, for which he had to obtain the orders of Assistant Engineer (Bldg.) Department after carrying out the various formalities by way of issuing show cause notices and demolition notices as stipulated u/s CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 6 343 and 344 of DMC Act. Further, in his capacity as JE, West Zone, MCD, he was overall incharge of various construction activities falling within the jurisdiction of ward No. 23 of MCD, West Zone, which also included Kirti Nagar area.
It is alleged that residential property located at A-5 Kirti Nagar measuring about 1013 S. yard was purchased by Dr. R. N. Kalra jointly in his name and in the name of his wife Sanjita Kalra, Ms/ Kalra Hospital Ltd. through its Director Sh. Tulsi Das Kalra & Sh. Tulsi Das Kalra and Master Ankur Kalra through Sh. Tulsi Das Kalra (four sale deeds) in Sept/Oct 1999 from Shri Kanhiya Lal Jain of Sumer Mal Patwari Trust. Further, the building plan was got sanctioned by the above said owners from the MCD for the residential premises on 1.1.2002 and was issued on 14.5.2002. The property was booked on 10.2.03 for unauthorized construction vide No. B/UC/WZ/03/65 for deviation/excess coverage against SBP at basement, GF, FF and SF in the rear by accused Mohd. Ahmed, JE (A-1) and show cause notice dated 10.2.03 u/s 344(1) & 343 DMC Act was issued by Shri Anand Prakash Sharma, AE (B) in the name of owner/builder of A-5, Kirti Nagar. The same was served by way of affixation on 11.2.2003 by Mohd. Ahmed (A-1) but no response to this notice was received. Thereafter, a notice u/s 343 DMC Act dated 18.2.2003 was issued to the owner/builder to demolish the unauthorized construction within a period of six days and the same was served by way of affixation by accused Mohd. Ahmed on 19.2.2002 in presence of witnesses. Since, no response was received from the owner/builder, accused Mohd. Ahmed put up a note CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 7 recommending for issuance of demolition order in respect of the unauthorized construction carried out at A-5 Kirti Nagar beyond sanctioned building plan, vide his note dated 26.2.2003 and the same was approved on 26.2.03 by Sh. Anand Prakash Sharma, the then AE(B).
It is further the case of prosecution that on 23.4.04, Mohd. Ahmed, JE visited Police Station Kirti Nagar for getting assistance of police force from the police station and accordingly a police party headed by SI O. P. Yadav along with ASI, M. S. Malik, ASI, Ram Khilari with subordinate staff was deputed to assist Mohd. Ahmed in carrying out demolition of unauthorized property at double storey, Ramesh Nagar, New Delhi. Accordingly, accused Mohd. Ahmed took demolition action in double storey, Ramesh Nagar area on 23.4.04 but did not proceed to take demolition action at A-5, Kirti Nagar along with the police party deputed to assist him for causing demolition. Further, SI O.P. Yadav after returning from the spot got recorded a report in the daily diary of PS Kirti Nagar mentioning therein that he along with staff reported after demolition duty for which they were deputed vide DD No.16-B 23.4.2004 of Police Station Kirti Nagar and this report did not show that demolition action had been taken at A-5, Kirti Nagar by accused Mohd. Ahmed, JE.
It is further the case of prosecution that in furtherance of the conspiracy with Dr. R.N. Kalra, accused Mohd. Ahmed JE(B) fraudulently and dishonestly recorded a false report regarding demolition in the Demolition Register of MCD and Unauthorized Construction file for having carried out demolition on 23.4.04 at A-5 CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 8 Kirti Nagar, New Delhi though he did not receive the UC file of A-5 Kirti Nagar, as said file was not reflected in the File Movement Register. Further, there was no mention of property no. A-5, Kirti Nagar being demolished in the monthly Action Taken Report for the month of April, 2004 which was sent to SE (Bldg.) DC West Zone and DC Zones MCD Hqrs by EE, West Zone, Rajouri Garden, New Delhi though the report reflected that the unauthorized constructed in property nos. 28/10, Ramesh Nagar, E271/272, Ramesh Nagar, E205-206, Ramesh Nagar had been demolished during the month of April. Further, no demolition charges were claimed from the owners of the property No. A-5, Kirti Nagar as no entry was recorded in Demolition Charge Claim Register. Also, the Missilband Register maintained at MCD Office, Rajouri Garden did not carry any remark that property No.A-5 Kirti Nagar, New Delhi, was partly demolished on 23.4.2004.
As such, it is alleged that in furtherance of criminal conspiracy, accused Dr. Ram Narayan Kalra (A-2), M/s Kalra Hospital Limited through its Director Sh. Tulsi Das Kalra (A-3), carried out unauthorized construction on the said property during the year 2003 beyond sanctioned building plan issued by MCD, Building HQ, and accused Mohd. Ahmed (A-1), in furtherance of the conspiracy with the aforesaid owners allowed unauthorized construction beyond the sanctioned building plan upto third floor and made false record to reflect the demolition in property on 23.4.2004.
It is pertinent to observe that though name of AEs surfaced in FIR but in the chargesheet, it has been observed by the Investigating CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 9 Agency that during investigation evidence did not disclose any role of the part of Sh. Vinod Kumar and Shri Anand Prakash, both AEs, MCD and it came to light that Shri V.K. Jain at the time of issuing directions for making 'another attempt' had believed in good faith the version of partial demolition put forward in the concerned u/c file by accused Mohd. Ahmed and as such no ulterior motives could be attached to him. As regards the role of Shri Anand Prakash, AE it was observed that his role is limited up to the issuance of the show cause notice and the demolition notice, so far as this property is concerned. As such, the AEs A.P. Sharma and V.K. Jain have not been arrayed as accused, in the chargesheet.
4. Charge was framed against the accused by the ld. Predecessor on 01.06.12 under Section 218 r/w 120B IPC; and 13(1)(d)(i)(ii)(iii) of Prevention of Corruption Act, 1988 r/w 120B IPC r/w 465 IPC. Accused Mohd. Ahmed, JE was further charged for the substantive offences under Section 465, 218 IPC r/w Section 120B IPC and Section 13(2) r/w 13(1)(d)(i)(ii)(iii) of PC Act, 1988.
5. In support of its case, prosecution examined 22 witnesses, namely:
i. PW1 Shri Naresh Kumar, Sanctioning Authority ii. PW2 SI Ram Khilari iii. PW3 HC Dalbir Singh iv. PW4 HC Sunder Singh v. PW5 Shri Jagjit Singh Bedi, Architect vi. PW6 Shri Gaje Singh vii. PW7 Shri Moti Lal Sharma, OI(B) viii. PW8 Shri Gurcharan Singh Sachdeva, Architect CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 10 ix. PW9 Shri Naveen Garg x. PW10 Shri Mukhwant Singh, OI(B) xi. PW11 Shri Ashish Sharma, AE xii. PW12 Inspector Indrawati Rathore xiii. PW13 Shri Pradeep Mittal, OI(B) xiv. PW14 Shri Komal Prasad Sharma xv. PW15 Inspector Om Prakash (also examined as PW19) xvi. PW16 Shri Yashpal xvii. PW17 Shri Gulshan Kumar Sharma xviii. PW18 Shri Manoj Kumar Verma xix. PW19 Inspector Om Prakash xx. PW20 Shri R.K. Joshi, OI(B) xxi. PW21 Shri Gautam Chand xxii. PW22 Shri Bikramjeet Singh xxiii. PW23 DSP K.S. Lohchab (IO)
(a) PW23 DSP K.S. Lohchab (IO) deposed as to the conduct of investigation. He stated that he was posted in CBI EOU-VIII New Delhi during October 2006 as Inspector and the preliminary enquiry in this case was conducted by Shri S.K. Peshin, the then DSP on the basis of the directions issued by the Hon'ble High Court in WP (C) 4582/2003 Kalyan Sansthan Social Welfare Association vs. Union of India and others and FIR (Ex.PW23/A) (D1) was registered. He further stated that vide present RC, property no. A5 Kirti Nagar and J117 Rajouri Garden were investigated and separate chargesheets have been filed in respect of both the properties.
He proved the following documents:
● Letter dated 17.10.06 (Ex.PW23/B) (D2) to Dy. Commissioner West Zone MCD Rajouri Garden requesting therein for furnishing various documents.
● Production-cum-seizure memo Ex.PW20/A vide which on 26.10.06 CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 11 he had seized documents from Shri R.K. Joshi, OI(B), West Zone.
● Letter dated 17.10.06 (Ex.PW23/C) (D4) to Vigilance Officer, MCD Town Hall, New Delhi for constituting a committee of Engineers for preparation of plan showing the present status of the buildings bearing no. A5 Kirti Nagar, J117 Rajouri Garden and Z6 Rajouri Garden.
● Letter dated 16.05.07 (Ex.PW23/D) (D5) received from EE (B) (HQs), MCD Town Hall Delhi addressed to Dr. M.M. Oberoi, SP CBI EOU-VII New Delhi enclosing therewith existing building plan (Ex.PW8/1 & 2) of property no. A5 Kirti Nagar Nazafgarh Road.
● Letter dated 19.10.06 (Ex.PW23/E) to DCP West Zone, Delhi Police requesting for furnishing the certified copy of general diaries of various dates from PS Rajouri Garden and PS Kirti Nagar and also certified copy of demolition register maintained at PS Rajouri Garden and PS Kirti Nagar.
● Production-cum-seizure memo dated 02.02.07 (Ex.PW23/D) vide which he had seized documents from Shri Rajender Kumar Joshi, OI(B), West Zone.
● Letter dated 29.01.07 (Ex.PW23/F)(D9) issued under the signatures of Shri S.K. Peshin, the then SP CBI EOU-VIII New Delhi to the Assessor and Collector, West Zone, MCD Rajouri Garden New Delhi vide which the house tax assessment filed in respect of properties i.e. J117 Rajouri Garden, Z6 Rajouri Garden and A5 Kirti Nagar were requested to be furnished.
● Letter dated 27.02.07 (Ex.PW17/C) (D10) addressed to S.P. CBI EOU-VIII New Delhi received from the Assessor and Collector, West Zone, MCD Rajouri Garden New Delhi vide which the house tax assessment filed in respect of the properties i.e. J117 Rajouri Garden, Z6 Rajouri Garden and A5 Kirti Nagar were furnished.
● Production-cum-seizure memo dated 06.12.06 (Ex.PW20/C) (D7) vide which he had seized documents from Rajender Kumar Joshi, OI(B), West Zone.
● Production-cum-receipt memo dated 05.03.07 (Ex.PW17/A)(D11) CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 12 vide which he had seized documents produced by Gulshan Kumar Sharma, Head Clerk/ZI (A&C) West Zone, Delhi.
● Letter dated 01.06.07 (Ex.PW23/G) (D12) issued under the signatures of Shri S.K. Peshin, the then SP CBI EOU-VIII New Delhi to the Executive Engineer (B) (HQs), MCD Town Hall, Delhi for furnishing the report of the technical committee in respect of the properties i.e. J117 Rajouri Garden, Z6 Rajouri Garden and A5 Kirti Nagar.
● Technical report vide letter dated 24.08.07 (Ex.PW14/A) (D13) in respect of J117 Rajouri Garden (Ex.PW14/B); Z6 Rajouri Garden (Ex.PW22/A) and A5 Kirti Nagar (Ex.PW22/B) forwarded by Executive Engineer (B), HQs.
● Letter dated 13.07.07 (Ex.PW23/H) (D14) issued under the signatures of Shri S.K. Peshin, the then SP CBI EOU-VIII New Delhi to the Executive Engineer (B), MCD West Zone for furnishing the unauthorized construction files in respect of different properties.
● Production-cum-seizure memo dated 06.08.07 (Ex.PW20/F) (D15) vide which he had seized documents from Shri Rajender Kumar Joshi, OI(B), West Zone, MCD, New Delhi.
● Letter dated 17.08.07 (Ex.PW23/I) (D16) issued under the signatures of Shri S.K. Peshin, the then SP CBI EOU-VIII New Delhi to the Executive Engineer (B), MCD West Zone for furnishing the documents i.e. missalband register, demolition register, list of property in which Hon'ble High Court passed the orders for demolition along with date of orders which were passed during the period January, 2003 to 31.12.2004.
● Production-cum-seizure memo dated 13.09.07 (Ex.PW20/G) (D17) vide which he had seized documents from Shri Rajender Kumar Joshi, OI(B) West Zone, MCD New Delhi.
● Copy of receipt memo dated 12.04.07 (Mark PW23/J) (D17) vide which documents were handed over to Inspector Narender Mahto, CBI by R.K. Joshi, OI(B) West Zone Rajouri Garden, New Delhi which included UC files pertaining to 15 different properties mentioned therein, daily demolition register, missalband register CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 13 for the periods specified therein, original attendance registers of JEs for the periods specified therein, action taken report for the periods specified therein and demolition charge registers (photocopies) and log book of vehicles for the periods specified therein.
● Notice under section 91 Cr.P.C. dated 27.08.07 (Ex.PW16/A) (D18) issued to the Sub-Registrar Division-II, Janakpuri, New Delhi for the production of certified copies of the sale deeds relating to the sale of property J117, Rajouri Garden, Z6 Rajouri Garden and A5 Kirti Nagar.
● Production-cum-receipt memo dated 07.09.07 (Ex.PW16/C) (D19) vide which he had seized documents produced by Yash Pal Clerk in the office of Sub-Registrar-II, Janakpuri.
● Letter dated 07.09.07 (Ex.PW16/B) (D19) under the signatures of V.P. Jha, Sub-Registrar-II, Janakpuri addressed to him thereby enclosing certified copies of sale deeds Ex.A2/1(colly), Ex.PWA2/2 (colly), Ex.PWA2/3 (colly) and Ex.PWA2/4 (colly) {D19}.
● Letter dated 26.06.08 (Ex.PW6/1) (D20) under the signatures of N.K. Prakash, Addl. Dy. Commissioner (HQs) addressed to SP CBI thereby enclosing monthly action taken report of August, 2003 and April 2004.
● Letter dated 08.10.07 (Ex.PW23/J) (D21) under the signatures of EE (B) West Zone addressed to him thereby furnishing tenure of AEs, JEs and OI(B).
● Letter dated 06.11.07 (Ex.PW23/K) (D24) issued under the signatures of Shri S.K. Peshin, SP CBI addressed to Dy. Commissioner, MCD, Building Department, West Zone Rajouri Garden to ascertain as to who was duty bound to initiate proceedings for launching of prosecution for violation of the provisions u/s 461 DMC Act and what was the role to be played by JE and AE and also request was made to supply the details of proceedings of prosecution launched by MCD West Zone for the year 2003-2004.
● Letter dated 14.01.08 (Ex.PW23/L) (D25) under the signatures of Dy. Commissioner West Zone addressed to Sh. S.K. Peshin, the CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 14 then SP CBI EOU-VIII, New Delhi whereby it was intimated that it was the duty and function of the area JE(B) concerned to initiate prosecution action if he finds that any provision of the DMC Act has been violated and it was also intimated that prosecution may be undertaken under sections of the DMC Act such as section 332, 347 etc. Further, it was also intimated that section 461 of the DMC Act, is a general section for prosecuting a person violating the provisions of the DMC Act, and should be read with other sections of DMC Act that are being violated.
● Photocopy of list (Ex.PW23/L1 to L3) of the prosecution action decided by the Hon'ble Court from 1.1.03 to 31.12.04.
● Fax messages (Mark PW23/M colly) (D26) regarding detail of wards and attached colonies of MCD, Rajouri Garden, West Zone, from MCD West Zone which was marked to him by Shri S.K. Peshin, the then SP.
● Letter dated 27.12.06 issued under the signatures of Executive Engineer to SP, CBI, EOU-VIII (Ex.PW9/1 (D27) marked to him by the SP Shri S.K. Peshin whereby copy of sanctioned building plan of property no. A5, Kirti Nagar (Ex.PW22/C) was forwarded.
● Letter dated 16.12.06 issued under the signatures of SHO, PS Kirti Nagar New Delhi to SP, CBI, EOU-VIII (Mark PW2/1) whereby certified copy of general diary dated 23.04.04, PS Kirti Nagar and certified copy of Demolition Register dated 23.04.04 were forwarded, marked to him by the then SP Shri S.K. Peshin.
● Letter dated 23.11.07 (Ex.PW23/N) (D29) to SHO, PS Kirti Nagar thereby requesting to provide DD entry and Demolition Register or any other record for demolition duty on 03.05.03 by Shri Mohd. Ahmed, JE, MCD, West Zone or otherwise.
● Letter dated 15.11.07 issued under the signatures of SHO, PS Kirti Nagar addressed to SP, CBI, EOU-VI (Ex.PW12/1) (D30) whereby it was informed by SHO, PS Kirti Nagar that as per MCD demolition register, no requisition of police force was made by Shri Mohd. Ahmed, JE, MCD West Zone or from MCD department for 03.05.03 for demolition nor any departure/arrival of MCD staff had been made in the Roznamcha.
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 15 ● Letter dated 28.02.07 (Ex.PW12/DC) (D31) to SHO, PS Kirti Nagar vide which it was requested that Roznamcha containing the daily diary entries dated 23.04.04 and demolition register containing the details regarding demolition action taken on 23.04.04 may kindly be kept in safe custody for the purpose of their production during investigation for trial in the Court of law.
● Letter dated 22.12.04 (Ex.PW23/O) (D32) issued under the signatures of Additional Deputy Commissioner of Police, West District, New Delhi addressed to him informing that the copy of DD entry and demolition register of PS Kirti Nagar were enclosed therewith. Further, it was also informed vide aforesaid letter (Ex.PW23/O) that there was no entry regarding arrival and departure of police party deputed for demolition duty on 03.05.03 in any Roznamcha of PS Kirti Nagar.
● Demolition register for 2003 of PS Kirti Nagar.
● Sanction for prosecution of Mohd. Ahmed, JE (B) (Ex.PW1/A) received from the competent authority.
● Chargesheet (Ex.PW23/P) which was drafted and filed in the Court on 31.07.08.
He further deposed that during investigation, it was revealed that Mohd. Ahmed, JE, MCD West Zone in conspiracy with other co- accused had fabricated the entries in the UC file and Demolition Register with respect to demolition action taken in property in question.
(b) PW1 Shri Naresh Kumar, the then Additional Commissioner (Engineering), MCD (i.e. the competent authority) accorded sanction for prosecution of accused Mohd. Ahmed, JE and proved the sanction order Ex.PW1/A. CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 16
(c) PW16 Shri Yashpal posted in Sub-Registrar office-II, Janak Puri, New Delhi during the year 2007-08 had provided certified copies of certain properties to Inspector K.S. Lohchab, CBI.
He proved the following documents.
● Letter dated 27.08.07 (Ex.PW16/A) addressed to SR-II, Janak Puri by Sh. K.S.Lohchab, IO of the case received on 27.08.07 by him.
● Letter dated 07.09.2007 (Ex.PW16/B) vide which the requisite documents were provided under the signatures of the then Sub- Registrar Sh. V.P. Jha.
● Production-cum-receipt memo dated 07.09.07 (Ex.PW16/C) vide which the certified copies of sale deeds of property No.A-5, Kirti Nagar, New Delhi alongwith other properties were provided wherein certified copies pertaining to A-5, Kirti Nagar had been mentioned at serial no. 11, 12, 13, 14 with relevant particulars. ● Certified copy of sale deed mentioned at serial no.11 (Ex.PWA-2/1 colly) executed by M/s Sumer Mal Patawari Trust through its trustee Sh. Kanhaiya Lal Jain, S/o Late Sh. Sumer Mal Patawari in favour of Dr. Ram Narain Kalra on 24.09.1999 and registered vide document no. 7164, book no.01, volume no. 9356, pages 34 to 51 on 11.10.99 in respect of the plot of land bearing no.06, in Block-A, one fourth undivided portion measuring of total plot measuring 1013 Sq Yds in the residential colony known as Kirti Nagar.
● Certified copy of sale deed mentioned at serial no.12 (Ex.PW2/2 colly) executed by M/s Sumer Mal Patawari Trust through its trustee Sh. Kanhaiya Lal Jain, S/o Late Sh. Sumer Mal Patawari in favour of Sh. Tulsi Ram Kalra and Mast Ankur Kalra S/o Sh.
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 17 R.N. Kalra registered vide no. 7896 additional book no.01, volume no.9380 pages 114 to 131 on dated 01.11.1999 in respect of the plot of land bearing no.06, in Block-A, one fourth undivided measuring of total plot measuring 1013 Sq Yds in the residential colony known as Kirti Nagar.
● Certified copy of sale deed mentioned at serial no.13 (Ex.PW2/3) executed by M/s Sumer Mal Patawari Trust through its trustee Sh. Kanhaiya Lal Jain, S/o Late Sh. Sumer Mal Patawari in favour of Smt. Sanjita Kalra, W/o Dr. Ram Narain Kalra registered vide no. 7564 additional book no.01, volume no.9369 pages 33 to 50 on dated 22.10.1999 in respect of the plot of land bearing no.06, in Block-A, one fourth undivided measuring of total plot measuring 1013 Sq Yds in the residential colony known as Kirti Nagar.
● Certified copy of sale deed mentioned at serial no.14 (Ex.PW2/4) executed by M/s Sumer Mal Patawari Trust through its trustee Sh. Kanhaiya Lal Jain, S/o Late Sh. Sumer Mal Patawari in favour of M/s Kalra Hospital Ltd. through its director Shri Tulsi Dass Kalra registered vide no. 7261 additional book no.01, volume no.9359 pages 53 to 70 on dated 13.10.1999 in respect of the plot of land bearing no.06, in Block-A, one fourth undivided measuring of total plot measuring 1013 Sq Yds in the residential colony known as Kirti Nagar.
(d) PW2 SI Ram Khilari, PW3 HC Dalbir Singh, PW4 HC Sunder Singh and PW19 SI Om Prakash are the witnesses posted at PS Kirti Nagar at relevant time who had accompanied the demolition team on 23.04.04.
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 18 PW2 SI Ram Khilari stated that he was posted as ASI at PS Kirti Nagar between 2003 & 2005 and on 23.04.04, he alongwith SI OP Yadav and staff had gone to assist in demolition duty at Double Sotrey Ramesh Nagar. Further, HC Dalbir, HC Vijay Prakash, HC Sunder Singh, HC Darshan Singh and others had also accompanied him. He further stated that JE along with team carried demolition action on the roof of Double Storey at Ramesh Nagar on 23.04.04 which falls within jurisdiction of PS Kirti Nagar which lasted for more than 3-4 hours but did not recollect the exact block number where demolition action was carried. He further stated that thereafter the team also went to Kirti Nagar A Block and demolition was carried out for 30/45 minutes and finally reported at PS Kirti Nagar where SI OP Yadav had reported to the SHO. This witness was cross-examined on behalf of prosecution on the ground that he resiled from his statement u/s 161 Cr.P.C.
PW3 HC Dalbir Singh stated that he was posted at PS Kirti Nagar from 2001 to 2004 and on 23.04.04 he alongwith other staff of PS Kirti Nagar was on duty for law and order enforcement during demolition. Further, SI Om Prakash, ASI Ram Khilari, HC Sunder Singh and other staff personnel whose names he did not recollect had also gone for demolition duty. He further stated that they first went to DDA flats at Ramesh Nagar where demolition was carried out for about 2-2½ hours and, thereafter, went to Najafgarh Road near Kalra Hospital wherein MCD staff went to a building upstairs which was adjacent to Kalra Hospital while he remained downstairs. He further stated that he could not say what demolition was carried by MCD as CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 19 they waited for about 30/45 minutes and thereafter, came back to Police Station where proceedings were reported by the senior officer SI Om Prakash. This witness during recording of statement by the ld. Predecessor surprisingly was permitted to refresh his memory by going through his statement recorded u/s 161 Cr.P.C., at the request of ld. PP for CBI. He, thereafter, further deposed that the team had gone to Ramesh Nagar and thereafter to Kirti Nagar for demolition. This witness was also thereafter cross-examined by ld. PP for CBI on the ground that he resiled from his statement u/s 161 Cr.P.C.
PW4 HC Sunder Singh stated that he was posted at PS Kirti Nagar from 2002 to 2006 and on 23.04.04 he was on duty at PS Kirti Nagar from where he had gone for demolition action. Further, SI Om Prakash, ASI Ram Khilari, ASI Mahender Singh, HC Vijay Prakash, HC Dalbir and some other staff had accompanied on 23.04.04 and a departure entry was made in the roznamcha at PS Kirti Nagar. He further stated that on 23.04.04 they first went to Ramesh Nagar Double Storey and then to Kalra Hospital where he and other staff were left on the road so that they divert the traffic while MCD staff went inside the building. Further, MCD staff came back in about 30-45 minutes and he was diverting the traffic from 3:15 pm till about 4:00 pm. This witness was also cross-examined by ld. PP for CBI on the ground that the witness resiled from his statement u/s 161 Cr.P.C.
PW19 Inspector Om Prakash (also partly examined as PW15) stated that during 2003 to 2005, he was posted as SI at PS Kirti Nagar. The demolition programme was being undertaken in the CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 20 area of Double Storey Ramesh Nagar on daily basis on the directions of the Hon'ble High Court of Delhi which falls within the jurisdiction of PS Kirti Nagar. On 23.04.04 he accompanied MCD team for purpose of demolition action to be undertaken by MCD officials and the police officials included ASI Ram Khilari, HC Darshan Singh, HC Sunder Singh, HC Ishwar Singh, HC Vijay and others. Further, Mohd. Ahmed, JE was present on behalf of MCD along with other staff members and they had visited various properties for purpose of demolition but could not recollect the property numbers. He stated that the officials from PS Kirti Nagar had been deputed for providing protection to MCD officials and for maintenance of law and order.
He further stated that the DD entries were recorded in the Roznamcha at the time of leaving the police station and proved the attested copies of DD No.12B, 16B and 23B as Ex.PW19/A, Ex.PW19/B & Ex.PW19/C. He further deposed that DD No.12B dated 23.04.04 was recorded by lady Constable Saroj. As per the the DD entry, JE Mohd. Ahmed (B) West Zone, Rajouri Garden had visited PS Kirti Nagar and about 10.00 a.m., ASI along with labour staff proceeded for demolition at double storey, Ramesh Nagar. Further, DD No.16B dated 23.04.04 was also recorded by lady Constable Saroj at PS Kirti Nagar as per which SI O.P. Yadav had proceeded for demolition action along with staff at double storey, Ramesh Nagar. Further, as per DD 23B dated 23.04.04, he had reported back at PS Kirti Nagar at about 3:20 p.m. along with staff after performance of demolition duty and the said DD entry was also recorded by lady Constable Saroj. He CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 21 further stated that as per DD No.16B and 23B, he had visited for demolition action at double storey, Ramesh Nagar.
(e) PW12 Inspector Indrawati Rathore deposed that on 15.11.07, she was posted at PS Kirti Nagar as Additional SHO and vide letter dated 15.11.07 (D30) to CBI, she had informed inter alia that there was no requisition of police force made by Shri Mohd. Ahmed, JE, MCD, West Zone, nor by MCD for 03.05.03. She proved the following documents:
● Attested photocopies of the register maintained by the Reader of the PS Kirti Nagar in relation to demolition programme with arrival and departure entries as Ex.PW12/2 & 12/3. ● Photocopy of demolition register maintained at PS Kirti Nagar (Ex.PW12/4).
(f) PW7 Moti Lal Sharma stated that he was posted in the West Zone (B), MCD from May 2002 to November, 2004 as OI(B) and maintained record of unauthorized construction files i.e. UC file, missalband register, file movement register, demolition register and demolition charge recovery register which used to remain in his custody. He further explained the procedure with respect to the registration of FIR, issuance of notices u/s DMC Act and passing of demolition order and the manner of recording of entries.
He further stated that an entry is to be made in the demolition charge claim register by the OI(B) on the basis of report of JE and a letter is sent under the signatures of AE by OI(B) to the owner/builder for recovery of demolition charges. A copy of the CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 22 demolition charge recovery notice is sent to the House Tax Department of the MCD. Further, on each day the entries in the missalband register are closed under the signatures of Executive Engineer of the Zone.
He further deposed that the demolition programme is fixed by Executive Engineer with the approval of Dy. Commissioner and the monthly demolition programme used to be issued in the last week of a month by the Executive Engineer. Further, the Executive Engineer and AE fix the priority of the demolition action to be taken.
He further deposed that FIR dated 10.02.03 Ex.A1 (1) {D3} was registered in MCD by Mohd. Ahmed in respect of unauthorized construction at A5 Kirti Nagar which bears his signatures & of Anand Prakash, AE and the number of UC file was given by him. Further, notice u/s 344 (1) and 343 of DMC Act, 1957 was sent to owner/builder in respect of unauthorized construction at property no.A5 Kirti Nagar Ex.A1(2) [D3] and bears signatures of Anand Prakash, AE at point X. He further stated that as per noting dated 23.04.04 (Ex.PW1/D) (D3) under the handwriting of Mohd. Ahmed, JE, it was shown that demolition action was taken at A5 Kirti Nagar, New Delhi. Further, in demolition register Ex.PW7/2 {D-7(1)}, at page 123 entry dated 23.04.04 Ex.A1/39 mentioned demolition action taken at Kirti Nagar at point C to C1.
He further stated that as per demolition charge claim register Ex.PW10/3 {D-3(2)} there is no entry claiming demolition charges in respect of A5 Kirti Nagar, New Delhi. Further, as per the register CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 23 Ex.PW10/3, there was no letter sent to the owner/builder of A-5, Kirti Nagar, New Delhi claiming demolition charges and thus no demolition charges were claimed.
He further stated that Ex.PW7/3 {D-7(3)} (i.e.File Movement Register for movement of files) contains the entries in his handwriting. On 23.04.2004 as per the File Movement Rregister, Mr. R.P.S. Nain JE had taken a file in relation to property No. 25/3, Ashok Nagar and 25/2, Ashok Nagar, Delhi.
He further deposed that the entries in relation to the booking of unauthorized construction are made in the missalband register and after demolition action is taken, the entry is made in the misalband register in the last column. Further, entry dated 10.02.03 at Srl. No. 65 in missalband register (Ex.PW20/B1 to B4) in relation to property No. A5 Kirti Nagar is in his handwriting. He also clarified that though the said property was booked for unauthorized construction, there is no entry in relation to any demolition action taken.
He further deposed that the entire action taken in a month i.e, booking of unauthorized construction and demolition action, sealing action and police action taken is mentioned in the Monthly Action Taken Report. Further, the Monthly Action Taken Report is sent every month to the Head Quarters. The Monthly Action Taken Report for the month of April 2004 would have been sent in May, 2004.
He further stated that the Demolition Register was maintained by him during the year 2003-04 being posted as OI(B), West Zone, Rajouri Garden, MCD. Further, as per entry dated 23.04.04 in the Demolition Register (Ex.PW7/2-colly) maintained by CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 24 MCD, the demolition action was fixed in the area of PS Kirti Nagar by Shri Mohd. Ahmed, JE. Further, the entries had been made in handwriting and under signatures of Shri Mohd. Ahmed, JE at point A to A1.
He further deposed that as per file movement register (Ex.PW7/3-colly) maintained by him being the OI(B), West Zone, MCD, on 23.04.2004, there is no entry in respect of taking of UC file pertaining to A5, Kirti Nagar. Further, as per action taken report for the month of April, 2004 dated 07.05.2004 Ex.PW13/B bearing the signatures of Shri Vijay Kadyan, Executive Engineer at point A on each page, there is no reflection of demolition action taken at A5 Kirti Nagar in the month of April, 2004.
(g) PW10 Shri Mukhwant Singh deposed that he was posted during the period 2001-2006 as LDC/Record Keeper in the west zone MCD and during 2004-05 also had Addl. Charge as OI(Building). Further, he took charge from Moti Lal Sharma OI(B) and in the month of December 2005 handed over charge of OI(B) to R.K. Joshi.
He further explained the procedure as to booking of unauthorized construction, issuing of notices and passing of demolition orders by MCD.
He further stated that on the demolition being carried out, the entry is made by the JE concerned in the demolition register and in the missalband register. Further, missalband register contains entries in relation to FIRs lodged of unauthorized construction and also of the first notice and second notices. If the JE has mentioned the duration CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 25 of hours for which the demolition had been carried out, the notice of demolition charges is issued under the signatures of AE and prepared by OI(B). Also, OI(B) prepares the notice as per the amount written by the JE.
He further deposed that unauthorized construction file D-3(I) page 2 indicated that on 23.04.2004 demolition was carried out at A-5 Kirti Nagar, New Delhi. Further, page 8 of unauthorized construction file D-3(I) Ex.PW1/B indicated at portion C that JE Mohd. Ahmed under his signature at point D had mentioned that demolition action had been carried out. Also, page 123 of Demolition register D-7(I) Ex.A1/39 bears signatures of Mohd. Ahmed JE at point B. He further stated that page no. 88 to 92 of action taken report D-7(II) (Ex.PW 20/D-1 to D-20) bears signatures of Vijay Kadyan, Executive Engineer, West Zone at point A. He also clarified that action taken report is sent by dak on monthly basis to the Deputy Commissioner Zones, Deputy Commissioner (West Zone), Superintendent Engineer, Building Headquarters which contains the details of action taken, number of demolition action pending and the number of unauthorized construction booked. Further, in the action taken report for the month of April 2004, there was no mention of any demolition action in A-5, Kirti Nagar on 23.04.2004.
He further stated that Missalband Register
Ex.PW20/B3{D-3(III)} bears handwriting of Moti Lal Sharma,
OI(B), West Zone at point B, of Brij Pal Singh at point C and of then Executive Engineer at point D. Further, demolition charge register (Ex.PW10/3) D-3(II) in relation to notices issued for recovery of CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 26 demolition charge of unauthorized construction for the period 01.04.2004 to September 2005 is in handwriting of Moti Lal Sharma OI(B) from page 1 to 26 at point Z to Z-1.
He further stated that the demolition charge register Ex.PW10/3 D-3(II) in relation to notices issued for recovery of demolition charge of unauthorized construction for the period 01.04.2004 to September 2005 contains entries in his handwriting at srl. no. 102 at point Z to srl. no. 203. Further, the unauthorized construction property file issue register Ex.7/3 (colly) D-7(III) containing entries from 01.01.2003 to 27.09.2004 is in the handwriting of Shri Moti Lal Sharma, OI(B).
(h) PW20 Shri R.K. Joshi stated that he was posted from November 2005 till 31.03.2011 in the Building Department, West Zone, MCD as Officer In-Charge (Building) {OI(B)} and had handed over documents to CBI.
He further proved seizure memo dated 26.10.06 (Ex.PW20/A) (D3) whereby various documents were handed over to CBI i.e. ● Documents as contained in unauthorized construction file relating to property no. A5 Kirti Nagar [D3(I)] ● Attested copy of missalband register bearing his initials at point AX.
● Original demolition charge register Ex.PW10/3 {D3(2)}. ● Attested copy of action taken report for the month of February, 2003 to September, 2004 (Ex.PW20/D1 to D20).
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 27 He further stated that seizure memo dated 06.12.06 Ex.PW20/C (D7) bears his signatures at point A on each page (3 pages) and signatures of Inspector K.S. Lohchab at point B on each page. Further, vide aforesaid seizure memo (Ex.PW20/C), he had handed over attested photocopy of demolition register containing entry from 2.6.03 to 30.12.04 bearing page no. 1 to 252, attested copies from entry dated 2.6.03 to 31.03.04, entries dated 23.4.04 to 30.12.04 and attested photocopy of the demolition register page no. 1 to 252 Ex.PW7/2-colly (D7-I). Also, vide memo Ex.PW20/C, he had also furnished the attested copy of action taken report against Unauthorized Construction for the month of February, 2003 to September, 2004.
He further stated that Shri Vipin Kumar, AE(B) West Zone MCD had attested the action taken report for the months of February 03, March 03, April 03, May 03, June 03, July 03, August 03, Sept 03, October 03, November 03, December 03, January 04, February 04, March 04, April 04, May 04, June 04, July 04, August 04 and September 04.
He further proved the attested copy of the action taken report for the month of February 03 as Ex.PW20/D1, March 03 as Ex.PW20/D2, April 03 as Ex.PW20/D3, May 03 as Ex.PW20/D4, June 03 as Ex.PW20/D5, July 03 as Ex.PW20/D6, August 03 as Ex.PW20/D7, Sept 03 as Ex.PW20/D8, October 03 as Ex.PW20/D9, November 03 as Ex.PW20/D10, December 03 as Ex.PW20/D11, January 04 as Ex.PW20/D12, February 04 as Ex.PW20/D13, March 04 as Ex.PW20/D14, April 04 as Ex.PW20/D15, May 04 as CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 28 Ex.PW20/D16, June 04 as Ex.PW20/D17, July 04 as Ex.PW20/D18, August 04 as Ex.PW20/D19 and September 04 as Ex.PW20/D20. He further stated that vide seizure memo Ex.PW20/C he had also handed over attested copy of file movement register for the period 1.1.03 to 22.09.04 which bears signatures of Sh. K.D. Sharma, AE (B).
He also proved various other documents handed over to CBI i.e. ●Production-cum-seizure memo Ex.PW20/E (D8) dated 2.2.07 bearing his signatures at point A and signatures of Shri K.S. Lohchab at point B whereby documents mentioned at Srl. No.3 to 7 on Ex.PW20/E were produced by him.
●Production-cum-seizure memo dated 6.8.07 Ex.PW20/F (D15) bearing his signatures at point A and signatures of Shri K.S. Lohchab at point B whereby he had produced unauthorized construction file of different properties to IO.
●Production-cum-seizure memo dated 13.9.07 Ex.PW20/G (D17) bearing his signatures at point A and signatures of Shri K.S. Lohchab at point B whereby he had produced the documents mentioned therein to the IO. ●Lists of details of JEs and AEs posted in the different Wards w.e.f. 1.1.03 to 3.8.07 Ex.PW20/H1 and Ex.PW20/H2 bearing his signatures at point A and signatures of Shri J.S. Yadav, EE(B) at point B which was prepared on the basis of official record as to the posting of concerned officials.
(i) PW13 Shri Pradeep Mittal, OI(B) proved the following documents:
● Photocopies of the original demolition register for the period CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 29 01.4.04 to 10.03.05 {page nos. 119 to 152 of D-7(1)} (Ex.PW13/A).
● Attested photocopy of page nos. 88 to 92 (Ex.PW13/B) of monthly action taken report of unauthorized construction for the month of April 2004 dated 07.05.04 bearing signatures of Shri Kadyan, EE (B).
● Copy of file movement register 2004 (Mark PW13/A), original of which had been seized by the CBI.
(j) PW17 Shri Gulshan Kumar Sharma stated that he remained posted as House Tax Inspector in West Zone during 2006 and had provided documents referred in production-cum-seizure memo dated 05.03.07 to CBI. He further stated that vide production-cum-receipt memo dated 05.03.2007Ex.PW17/A (D11), he provided attested true copy of entry no. 2 dated 15.05.2002 (Ex.PW17/B), relating to property no.A5, Kirti Nagar, New Delhi as contained in Building Watch Register for the year 2002-03 maintained u/s 126 of DMC Act.
He further proved D10 containing attested copies pertaining to assessment of A5, Kirti Nagar as enclosed vide letter dated 27.02.2007 (Ex.PW17/C) written by Shri Rakesh Kumar, the then Assistant Assessor and Collector, West Zone Delhi.
He further stated that D10 containing pages from 1 to 187 were attested by Shri Rakesh Kumar, Assistant Assessor and Collector and the said document pertained to assessment of A5, Kirti Nagar.
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 30
(k) PW6 Shri Gaje Singh deposed that while he was posted at Headquarters, DC Zone, MCD during the period 2003 to 2006, the reports of unauthorized construction and encroachment used to come to the DC Zone from Executive Engineer (Building) of all Zones on a monthly basis, before the 10th of each month in a proforma in relation to the unauthorized construction and action taken by the department (e.g. Removal or demolition thereon). Further said reports were received directly from Executive Engineer (Building) and not through any channel and the same were compiled by him proforma-wise and zone-wise and used to get the compiled report signed by the Deputy Commissioner (Zone). Further, one folder was sent to the Additional Commissioner, MCD and one folder was retained for the record by the DC Zone. He further stated that the said reports were also put up in the meetings of monitoring committee. Further, CBI made enquiries in relation to the reports dispatched vide dispatch number 1010 and 442.
(l) PW21 Shri Gautam Chand deposed that from October 2002 till August, 2004, he was posted in MCD West Zone, Building Department as Assistant Engineer and was supervising JEs alongwith unauthorized construction in the Wards allocated to him. Shri Brij Pal Singh was Executive Engineer during October, 2002 and thereafter, Shri Vijay Kadyan joined as Executive Engineer during 2002 to 2004. Further, Shri Anil Kumar Mittal and Shri D.B.S. Hudda, were posted as Junior Engineers in West Zone, MCD besides Shri Ajay Kumar Shrotriya and Mohd. Ahmed, JEs.
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 31 He further stated that he had been looking after different wards which were allocated from time to time by the Executive Engineer within jurisdiction of West Zone, MCD including ward no. 123/124 pertaining to area of Kirti Nagar as AE during August, 2003.
He proved the following documents:
● Office order no. D/462/EE(B)/WZ/2003 dated 18.06.03 issued by Shri Vijay Kadyan, EE Ex.PW21/A1 (D8) with respect to posting of Shri Anand Prakash, as AE (B-1) and Shri Suleman Khan JE (B) in ward no. 25/26/123 and 124.
● Office order no. D/EE(B)/WZ/2003/1830 dated 01.01.04 issued by Shri Vijay Kadyan, EE Ex.PW21/A2 (D8) whereby Shri V.K. Jain was posted as AE (B) & Shri Mohd. Ahmed, JE (B-3) was assigned ward no. 123 & 124 and building plan of zone. ● Office order No.D/763/EE(B)/WZ/04 dated 01.07.04 issued by Shri Vijay Kadyan, EE Ex.PW21/A3 (D8) whereby Shri V.K. Jain was posted as AE (B-3) and Shri Mohd. Ahmed, JE (B) was assigned ward no. 123 & 124 and building plan of zone. He further stated that the aforesaid orders were also marked to OI(B) by the Executive Engineer (Building) and the same were maintained in the Area Distribution Register.
He further deposed with reference to tenure of various officers {i.e. AEs, JEs and OI(B)} as per Mark PW21/B1 to B9 enclosed with Letter no. D/2423/EE/B/WZ/2007 dated 08.10.07 addressed to Shri K.S. Lohchab, Inspector of Police by Executive Engineer (B) West Zone.
● Mark PW21/B5 whereby his tenure as AE(B) in respect of different CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 32 wards was reflected. He further stated that he was posted in Ward no. 123 from 23.10.02 to 06.11.02 and in Ward no. 124 from 23.10.02 to 06.11.02.
● Mark PW21/B6 whereby tenure of Mohd. Ahmed, JE(B) West Zone was reflected in ward no. 123 for the period 1.8.01 to 3.1.02, 16.2.02 to 18.06.03, 1.1.04 to 31.08.04, 09.08.05 to 21.02.06 and in Ward No.124 for the period 1.8.01 to 3.1.02, 16.2.02 to 18.06.03, 1.1.04 to 31.08.04, 09.08.05 to 30.11.05. ● Mark PW21/B2 whereby tenure of Sh. Vinod Kumar, AE in Ward No.124 was reflected for the period 01.09.04 to 24.01.06 and 16.02.06 to 21.02.06 and tenure of Shri A.P. Sharma, AE, West Zone in Ward No.124 was reflected for the period 07.11.02 to 31.12.03.
● Mark PW21/B7 whereby tenure of Sh. Ashish Sharma, JE (B), West Zone in Ward No.124 was reflected for the period 29.04.05 to 08.08.05.
● Mark PW21/B8 whereby tenure of Sh. Hasruddin Khan, JE(B), West Zone in Ward No.124 was reflected for the period 22.02.06 to 20.03.06.
● Mark PW21/B9 whereby tenure of Sh. Moti Lal Sharma, OI(B), West Zone was reflected for the period 24.05.02 to 30.11.04. ● Mark PW21/B9 whereby tenure of Sh. Mukhwant Singh, OI(B), West Zone was reflected for the period 1.12.04 to 15.11.05 and Shri R.K. Joshi OI(B), West Zone for the period 16.11.05 till date.
He further detailed the procedure with reference to booking of properties by MCD.
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 33
(m) PW18 Shri Manoj Kumar Verma deposed that in 2002 he was posted as Executive Engineer in Building Deptt. West Zone (MCD), Rajouri Garden, New Delhi. He further stated that EE is required to look into the cases/complaints of unauthorized constructions and also to supervise the action taken in respect of unauthorized constructions to the extent of 20% of the booked cases. Further, proposal for prosecution action under various sections of DMC Act is initiated by the concerned JE who puts up the said proposal mentioning the violations in respect of unauthorized construction before concerned AE and the said proposal as per the file is marked to the EE, SE and thereafter to the Deputy Commissioner of the Zone for recommendation and passing of the final order, if considered appropriate for prosecution. Thereafter, the proposal as per the file is forwarded to the Law Department for examination and then the matter is referred to the Prosecution Cell under Law Department of MCD for necessary action. The file after examination is returned back by the Law Deptt to the DC for signing/attestation of the complaint for launching of prosecution under relevant section of DMC Act and the case is thereafter prosecuted/filed by the prosecution branch of MCD in the court and the final outcome of the proceedings in the case are forwarded to the JE/record keeper of the concerned Ward/ Zone under the Building Department. He further stated that JE of the concerned Ward is responsible for initiating the proposal for prosecution in case of unauthorized construction.
(n) PW11 Shri Ashish Sharma deposed that he was posted as JE CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 34 from June, 2004 till February, 2006 in MCD, West Zone. At the time of his joining, Shri Vijay Kadyan was EE, Shri Vinod Kumar Sharma, Shri Gautam Chand and Shri Anand Praksah Sharma were the AEs. Further, Shri Mohd. Ahmed, Shri Rajesh Sharma, Shri Ajay Sharma and some other persons whose name he did not recollect were posted as JEs in West Zone, MCD.
He further identified signatures of Shri A.P. Sharma, AE on some of the documents in the Unauthorized Construction file. The witness was cross-examined by ld. PP for CBI on the ground that he resiled from his statement u/s 161 Cr.P.C. During cross-examination, he stated that he was unable to recognize signatures of Shri Mohd. Ahmed, JE due to lapse of time.
(o) PW9 Shri Naveen Garg deposed that in 2007, he was posted as AE in the Building Headquarters of MCD, Town Hall and his duties included scrutiny of building plans and attestation. Further, from 2006 to 2010 he remained posted as AE and EE at Town Hall. He explained the procedure with respect to sanction of building plans at Building Headquarters, MCD.
He further identified Ex.PW9/1 (D27) bearing signatures of Shri R.K. Gupta, SE vide which copy of sanctioned building plan of A5 Kirti Nagar, New Delhi was given to CBI and also enclosing therewith certified true copy of sanction letter sanctioning the building plan of A5 Kirti Nagar, New Delhi (Ex.PW9/2).
(p) PW14 Komal Prasad Sharma, AE in Building Headquarters, CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 35 East Delhi Municipal Corporation deposed that he joined MCD in 1993 as JE and his duties at the Building Headquarters included sanction of the building plan. He further explained the procedure for sanction of building plans.
He further stated that he had received instructions from EE to inspect the three properties mentioned at serial no. 1 to 3 at X to X1 of Mark PW14/1 alongwith the technical team comprising of AE, Zonal staff and the Architect Gurcharan Singh.
Further, he proved letter dated 24.08.07 (Ex.PW14/A) (D13) bearing signatures of M.R. Mittal vide which technical report in respect of properties A5 Kirti Nagar, Z6 Rajouri Garden and J117 Rajouri Garden, New Delhi was forwarded to SP, CBI. He also proved technical report (Ex.PW14/B collectively) in respect of Z6 Rajouri Garden, A5 Kirti Nagar and J117 Rajouri Garden.
(q) PW22 Shri Bikramjit Singh deposed that he was posted at MCD Building HQs. as Junior Engineer during the period 2005-06 and, thereafter, promoted as AE. He further explained the procedure regarding sanction of building plans at MCD Building Headquarters.
He further stated that he was one of the members of the team which was constituted on the request of the CBI for determining the present status of the properties under investigation by CBI. Further, JE/EE as well as Architects were the members of the aforesaid Committee and the plans were prepared by the Architect after inspection of property at site.
He further proved the following documents:
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 36 ● Letter dated 24.08.07 addressed to SP CBI by EE Building HQs, Shri M.R. Mittal (Ex.PW14/A) vide which technical report in respect of property no. J117, Rajouri Garden, Z6 Rajouri Garden and A5 Kirti Nagar was forwarded. ● Technical report in respect of J117 Rajouri Garden (Ex.PW14/B) bearing his signatures and signatures of Shri K.P. Sharma, JE which was prepared after inspection of the property.
● Report in respect of Z6 Rajouri Garden, New Delhi (Ex.PW22/A) bearing his signatures and signatures of Shri K.P. Sharma.
● Report in respect of A5 Kirti Nagar (Ex.PW22/B) bearing his signatures and signatures of Shri K.P. Sharma, JE.
He further stated that as per report (Ex.PW22/B) (in respect of A5 Kirti Nagar), the construction existing at site on the date of inspection of property in 2007 is reflected as basement, ground, first, second, third and fourth floor. Further, the permissible covered area as per MPD 2001 modified on 23.07.98, sanctioned area, existing area excess area, compoundable area as well as non compoundable area on the various floors had been reflected in the report (Ex.PW22/B). He further stated that as per the report, the non compoundable area on the basement was 34.99 sq. mtr., ground floor 128.17 sq. mtr., first floor 66.95 sq. mtr., second floor 62.76, third floor 67.26 sq. mtr. and fourth floor 117.05 sq. mtr. respectively. The report (Ex.PW22/B) was stated to have been prepared after inspection of site. Further, site plans CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 37 Ex.PW8/1 and Ex.PW8/2 showing the existing construction were prepared by G.S. Sachdeva, Architect who was a member of the team and had been engaged for the purpose of preparing the site plan.
He further stated that letter dated 27.12.06 (Ex.PW9/1) written by Shri R.K. Gupta, EE (B) HQs. to SP CBI enclosing therewith copy of sanctioned letter (Ex.PW9/2) alongwith certified true copy of sanctioned building plan (Ex.PW22/C) bears signatures of Shri Naveen Garg, AE who has signed the certified true copy.
He further proved circular dated 16.12.03 issued under the signatures of Shri Rakesh Mehta, the then Commissioner, MCD (Ex.PW22/D).
(r) PW8 Shri Gurcharan Singh Sachdeva, Architect deposed that he was engaged by MCD in March, 2007 to prepare the sketch of some structures that were in existence and had received a written requisition for the same from the SE Building Headquarters, MCD. Further, he prepared the building site plan of the existing structure of J-117, Rajouri Garden, Z-6 Rajouri Garden, A-5 Kirti Nagar and another building in Punjabi Bagh under the supervision of Shri Bikram Jeet Singh, Assistant Engineer, Building Department, MCD. He further stated that he had visited A-5 Kirti Nagar, New Delhi i.e. Kalra Hospital and prepared the fair sketch of the existing structure at spot (Ex.PW8/1). At the time when he had gone to the spot and seen the structure and prepared the plans (Ex.PW8/1 & Ex.PW8/2), the sanctioned plan had not been analysed.
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 38
(s) PW5 Shri Jagjit Singh Bedi deposed that he was a professional Architect registered since 1996 and in the year 2000 was practicing as an Architect. He further stated that he did not know Mr. Tulsi Dass Kalra but knew Dr. R.N. Kalra who was his client and came through one of his friends. Further, he had made the plans and sketches of property no. A5 Kirti Nagar, New Delhi for Dr. R.N. Kalra and got them sanctioned from MCD.
He further stated that the construction started in A5 Kirti Nagar around third week of May, 2002. He denied having prepared the plan A5 (page 9 annexed to D5) (Mark PW5/1). He also stated that till the time the roofs i.e. laying of RCC slabs A5 Kirti Nagar, New Delhi, the construction was according to the building plans and he was associated with the construction at A5 Kirti Nagar, New Delhi till about August, 2002. Further, he did not go to premises no. A5 Kirti Nagar regularly but went as and when called by Dr. R.N. Kalra and till the time he had gone to the site, the construction had probably been raised till 2½ floors.
6. In his statement u/s 313 Cr.P.C. accused Mohd. Ahmed, JE denied the case of prosecution and claimed that he had been falsely implicated in this case. He further denied having made any false entry in the MCD record qua demolition action taken in the property.
Accused further filed written statement u/s 313(5) Cr.P.C. that the property in question was booked by him for unauthorized construction and further the notices were issued under Section 343 & CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 39 344 DMC Act and, thereafter, a demolition order dated 26.02.03 was passed. He further submitted that on 03.05.03 action could not be taken due to non availability of police force and on 23.04.04 the part demolition action had been taken on the basis of which the entries had been made in UC file and Demolition Register. He further stated that the demolition charges were to be prepared by the OI(B) and in case some entries were left inadvertently or due to heavy work by the OI(B), the JE could not be held responsible. He also claimed that he had been made a scapegoat and the officers who did not take action after his transfer had not been even interrogated. Accused Mohd. Ahmed further examined DW1 Balbir Singh and DW2 Jai Bhagwan, Baildars in defence. DW1 Balbir Singh identified his signatures on the notice dated 10.02.03 under Section 344 (1) DMC Act Ex.A1(3) as well notice dated 18.02.03 under Section 343 DMC Act which were pasted at site as per instructions of Mohd. Ahmed, JE. He further stated that demolition action had been taken in the property in question by him along with other baildars as per instructions of JE but did not recollect the date or premises number.
Similarly, DW2 Shri Jai Bhagwan posted as Baildar in West Zone, MCD, Rajouri Garden deposed that he had visited the property in question for carrying demolition action but did not recollect the date. He also verified that the demolition action had been carried at A5 Kirti Nagar for about 1-1½ hours.
Accused Dr. R.N. Kalra denied the case of the prosecution and claimed that he had been falsely implicated. Dr. R.N. Kalra further CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 40 stated that the demolition action had been taken at A-5, Kirti Nagar on 23.04.04. He further stated that he had never met Mohd. Ahmed at any stage and was not involved in construction of the building as the same was being done under the supervision of Shri Jagjit Singh, Architect who was engaged by his father (since expired). However, no evidence in defence was led on behalf of accused Dr. R.N. Kalra.
7. Counsel for accused assailed the case of prosecution on various grounds as detailed below and Shri Y. Kahol, Advocate for accused Mohd. Ahmed also filed written submissions on record:
a) That the sanction order had been passed by PW1 Shri Naresh Kumar, Competent Authority against accused Mohd.
Ahmed, JE without application of mind.
b) That Mohd. Ahmed, JE had no occasion, motive or opportunity to obtain any pecuniary advantage and the Investigating Agency had malafidely implicated him ignoring the role of other JEs/AEs posted in West Zone, MCD.
c) It was also vehemently urged that there was no evidence to prove conspiracy between the accused and the same could not be inferred in the absence of any evidence to show meeting of minds. It was also submitted that no evidence had been led to show passing of gratification or meeting of accused at any point of time.
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 41
d) Counsel for accused Mohd. Ahmed, JE also urged that demolition charges were not to be claimed by Mohd. Ahmed since the same was the job of OI(B) and also no demolition charges were generally claimed for carrying out minor demolitions.
e) It was vehemently contended that the investigating agency had commenced the investigation only with the motive to fix Mohd. Ahmed, JE leaving aside the role of other officials i.e. AE, EE, SE or DC and the officials who were posted after his transfer.
f) It was submitted that the proceedings recorded by Mohd. Ahmed, JE in Unauthorized Construction File on 03.05.03 to the effect that demolition action could not be taken due to non availability of police force, could not be doubted as no evidence to the contrary has been collected during investigation. Further, the file was countersigned by Shri A.P. Sharma, AE on the same date itself with the remarks "try again".
It was also contended that entry dated 23.04.04 was also made in the Unauthorized Construction file as well as Demolition Register by Shri Mohd. Ahmed, JE after obtaining the file on 23.04.04 which was also countersigned by Shri V.K. Jain, AE who further remarked "try again" on the same date itself. It was submitted that the evidence on record CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 42 corroborated the fact that demolition action was carried on 23.04.04 and the inference had been wrongly drawn by the Investigating Agency that the entry of partial demolition action had been forged. It was further submitted that if the entry had been fabricated, Shri V.K. Jain, AE would also have been arrayed as an accused since he had countersigned and remarked "try again" on the same date. However, neither Shri Anand Prakash Sharma, AE nor Shri V.K. Jain, AE have been arrayed as accused nor cited as witnesses though their testimony was crucial to the case of prosecution. Reliance was also placed on statement of of PW7 Shri Moti Lal who admitted in several cases having missed the making of entries due to overload of work, in the File Movement Register and other record.
It was also submitted that the file never stood closed by mere entry dated 23.04.04 made in the UC file as well as Demolition Register whereby partial demolition action was taken by Mohd. Ahmed, JE. It was also contended that investigating agency has not booked the AE or any subsequent JE/AE posted after transfer of Mohd. Ahmed, JE for failing to take further demolition action though the unauthorized construction file (i.e. UC file) was never closed by mere part demolition action vide entry dated 23.04.04 in the UC file.
g) It was also contended that the inference could not be drawn that partial demolition action had not been taken on CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 43 23.04.04 on the basis of inspection conducted in 2007 by CBI reflecting the existing construction as it could not be ruled out that the repairs/renovation may have been carried of the portion which had been partially demolished, in the intervening period of about four years.
h) It was also urged that Mohd. Ahmed, JE had been posted in the concerned ward for the period 16.02.02 to 18.06.03, 01.01.04 to 31.08.04, 09.08.05 to 30.11.05 and the Investigating Agency had made him a scapegoat ignoring the role of the officials posted in the intervening period and after his transfer from the concerned ward though they failed to initiate any further demolition action. It was also contended that the file never stood closed by carrying of partial demolition action and the action could have been taken by the succeeding officials.
i)Reliance was also placed by Shri S.P. Minocha, Advocate on the judgement passed in Crl. M.C. No.2384/2011 & Crl. M.A. No.8693/2011 A.K. Ganju vs. CBI decided on 22 November, 2013 by the Hon'ble High Court of Delhi to contend that the CBI had no power to usurp the functions under the DMC Act and to investigate the matter of unauthorized construction in violation of MCD Bye-laws unless it is notified by the Central Government.
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 44
j) It was also submitted that there was no evidence to establish conspiracy between the accused. Counsel for accused further submitted that there could not have been any conspiracy with Mohd. Ahmed, JE in particular since different JEs/AEs were posted during relevant period and no evidence has been led on record to show the meeting of minds with Mohd. Ahmed, JE in particular or any other MCD official. It was also contended that there is absolutely no evidence to reflect that the accused was known to Mohd. Ahmed, JE or had ever met him or if any gratification had been passed. Reliance was also placed upon (2008) 10 SCC 394 Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra.
k) Counsel for accused Mohd. Ahmed, JE also relied upon John Pandian Vs. State Rep. by Inspector of Police, T. Nadu, MANU/SC/1025/2010 : 2011(1) JCC 193 in support of the contentions made by him.
On the other hand, ld. PP for CBI vehemently contended that the entry dated 23.04.04 in the demolition register was fabricated in conspiracy by Mohd. Ahmed, JE in order to help the accused and save the property from demolition. It was further contended that the contradictions in the testimony of witnesses were of minor nature and did not discredit the statement of the witnesses in entirety. Apart from above, reliance was also placed on the inspection report prepared by MCD officials in the year 2007 after the registration of FIR/RC by CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 45 CBI which reflected the unauthorized construction in the property. Reference was also made to the Building Watch Register (Ex.PW17/B).
8. I have heard Shri Y. Kahol, Advocate for accused Mohd. Ahmed, Shri S.P. Minocha, Advocate on behalf of accused no.2 Dr. Ram Narayan Kalra and accused no. 3 M/s Kalra Hospital Ltd. & ld. PP for CBI and perused the record.
Before deliberating upon the evidence on merits, the scope of Section 120B IPC may be briefly noticed, as the foundation of the prosecution case is that the entry dated 23.04.04 was forged by Mohd. Ahmed, JE in furtherance of conspiracy with co-accused and it was wrongly reflected that the demolition action had been partly taken in the property, to safeguard the same from demolition. It is also necessary to find out in this case as to whether the accused Mohd. Ahmed, JE abused his position and acted dishonestly or with a corrupt or oblique motive.
Criminal conspiracy has been defined in Section 120A of the Indian Penal Code and Section 120B provides punishment for the same. A conspiracy must be put to action, inasmuch as, so long a crime is generated in the mind of the accused, it does not become punishable. The offence is said to have been committed only when the thoughts take concrete shape of an agreement to do or cause to be done an illegal act or an act although not illegal by illegal means. The CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 46 gist of the offence of the conspiracy lies in agreement being the essential element and mere knowledge of the plan is not per se enough. It also needs to be taken into account that the acts or the conduct of the parties must be cautious and clear enough to infer their concurrence as to common design and its execution. Also the incriminating circumstances must form a chain of events from which conclusion about the guilt of the accused could be drawn.
For the purpose of bringing the charge of criminal conspiracy read with other sections for which the accused has been charged, the prosecution is required to show the circumstances on which it could be inferred that the accused had hatched a conspiracy. Though often the conspiracy is hatched in secrecy and for proving the offence direct evidence may not be possible to obtain but in aforesaid eventuality the circumstances need to be proved which may lead to an inference that the accused acted in conspiracy. It has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence.
The principles laid down for ascertaining the conspiracy as referred in para 40 & 41 of (2009) 8 Supreme Court Cases 617 State of Madhya Pradesh vs. Sheetla Sahai and Others may aptly be quoted:
"40. In Kehar Singh v. State (Delhi Admn.), this Court has quoted (at SCC p. 731, para 271) the following passage from CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 47 Russell on Crimes (12th Edn., Vol.1) The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.
41. In State (NCT of Delhi) v. Navjot Sandhu this Court stated the law thus: (SCC p.691, para 101) One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
9. Since accused Mohd. Ahmed is also alleged to have abused his position and by corrupt or illegal means obtained pecuniary advantage, it may be relevant to refer to observations made by the Hon'ble Apex Court in S.K. Kale vs. State of Maharashtra AIR 1977 Supreme Court 822 with reference to Section 5(1)(d) of the Prevention of Corruption Act, 1947. It was therein held that the abuse CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 48 of position in order to come within the mischief of the section must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It was further held that it is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
In the aforesaid context, since the conspiracy has been inferred on circumstantial evidence, it may be apt to refer to the observations of the Hon'ble Supreme Court in para 21 & 22 of S.P. Bhatnagar and Another vs. The State of Maharashtra AIR 1979 Supreme Court
826.
"21.................It would be well to bear in mind the fundamental rule relating to the proof of guilt based on circumstantial evidence which has been settled by a long line of decisions of this Court. The rule is to the effect that in cases depending on circumstantial evidence there is always the danger that conjecture or suspicion may take place of legal proof. In such cases the mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely it is, considering such matters, to over-reach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 49 render them complete.
22. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
10. Now, adverting to the charge-sheets filed by the prosecution, the evidence fairly needs to be assessed in the background that though the directions issued by the Hon'ble High Court in WP(C) 4582/2003 directed to probe the nexus of MCD officers including suspects with the hierarchy in the Engineering Department, builders and political bosses and on the basis of the same, Preliminary Enquiry was registered against Shri Vijay Kadyan, EE, West Zone but the investigation has been intentionally confined only to the role of Mohd. Ahmed, JE ignoring the responsibility of all other officials in hierarchy. The role of the other JEs, AEs, EE who failed to take any further CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 50 demolition action after transfer of Mohd. Ahmed, JE from concerned ward has been completely overlooked by the investigating agency and investigation has been focused only in respect of the entries of partial demolition action made by Mohd. Ahmed, JE. As per Ex.PW20/H2, Mohd. Ahmed, JE was posted in the concerned ward for the period 16.02.02 to 18.06.03, 01.01.04 to 31.08.04, 09.08.05 to 30.11.05, Shri A.P. Sharma, AE was posted in the concerned ward for the period 07.11.02 to 31.12.03 and Shri V.K. Jain, AE was posted for the period 01.01.04 to 31.08.04.
The Investigating Agency has overlooked the role of JEs who had been posted in the intervening period between 18.06.03 to 01.01.04 & 01.09.04 to 08.08.05. Further, the role of JEs/AEs/EE has not been investigated who had failed to initiate the demolition action against unauthorized construction after transfer of Mohd. Ahmed, JE from concerned ward on 30.11.05 though the UC file never stood closed vide entry dated 23.04.04. Further demolition action could be taken by the succeeding JEs/AEs under overall supervision of EE who were equally responsible to take the demolition proceedings to logical end, but have been left out by the Investigating Agency.
11. Reverting back to the facts of the case, it may be noticed that Shri Mohd. Ahmed, JE had booked the property for unauthorized construction by way of FIR (Ex.A1) on 10.02.03 which is not disputed. The unauthorized construction was reflected in the shape of deviation/excess coverage against sanction building CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 51 plan at basement, GF, FF & SF in rear as per FIR (Ex.A1). Thereafter, show-cause notice u/s 344 (1) r/w Section 343 DMC Act, 1957 dated 10.02.03 was issued to the Owner/Builder followed by notice under Section 343 DMC Act, 1957 dated 18.02.03 directing the Owner/Builder to demolish the unauthorized construction within six days under the signatures of Shri Anand Prakash Shrama, AE(B) as per record of MCD. The aforesaid notices were further served on the owner/builder of the property by way of affixation by Mohd. Ahmed, JE which were witnessed by Ramesh and Balbir, Baildars . The demolition order dated 26.02.03 was thereafter proposed by Mohd. Ahmed, JE and approved by Shri Anand Prakash Sharma, AE. The proceedings till aforesaid stage are not disputed by the Investigating Agency.
The controversy has been narrowed down by the Investigating Agency to entry dated 03.05.03 made on the demolition order dated 26.02.03 whereby it was observed by Mohd. Ahmed, JE "action could not be taken due to non availability of police force" which was further endorsed by Shri A.P. Sharma, AE with the remarks "try again" dated 03.05.03. The prosecution has further relied upon entry dated 23.04.04 whereby noting was made by Mohd. Ahmed, to the effect, "Demolition action has been taken with the help of police force. Roof at IInd floor in rear set back has partly demolished. Two nos partition walls also demolished. The demolition action has been taken for 1½ hours. The demolition charges maybe recovered from O/B".
The case of the prosecution is that the aforesaid entry dated CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 52 23.04.04 in UC file has been wrongly made since the UC file was not obtained by Mohd. Ahmed, JE as per File Movement Register and further the demolition action has not been disclosed to have been carried by the police officials during the course of investigation.
At the outset, it may be observed that so far as aforesaid entry dated 03.05.03 made in the UC file is concerned, the proceedings undertaken on aforesaid date cannot be disputed since the notice stands countersigned by Shri Anand Prakash Sharma, AE on 03.05.03 itself. In case there was any doubt as to the entry made by Mohd. Ahmed, JE, the same would also have been commented upon by Shri Anand Prakash Shrama, AE(B) but he countersigned the file and remarked "try again". Nothing adverse can be inferred on the basis of aforesaid noting since it has not been substantiated by any evidence on record if the action had been taken against any other property on aforesaid date and if the police force was available. Neither the aforesaid aspect has been investigated by the IO, if the requisition had been sent by department for police force and the same had been provided by the police authorities and the entry had been wrongly recorded. The inference drawn by the Investigating Agency that the action was intentionally not taken on 03.05.03 is not corroborated by the circumstances and evidence on record. In case any such entry was wrongly made, then obviously Shri A.P. Sharma, AE who was the officer concerned and was also responsible for demolition action would also have been chargesheeted by the investigating agency. In the facts and circumstances, merely on the basis of entry dated CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 53 03.05.03, it cannot be inferred that the same had been wrongly recorded and the demolition action was intentionally not carried out on 03.05.03.
12. The Investigating Agency has further disputed the entry dated 23.04.04 made by Mohd. Ahmed, JE in Unauthorized Construction file whereby it was recorded "Demolition action has been taken with the help of police force. Roof at IInd floor in rear set back has partly demolished. Two nos partition walls also demolished. The demolition action has been taken for 1½ hours. The demolition charges maybe recovered from O/B". The said entry dated 23.04.04 is alleged by prosecution to be concocted by Mohd. Ahmed, JE without actually carrying the demolition as no corresponding entry had been made in the Missalband Register and the charges had not been claimed for the alleged demolition action carried in the property. It is also alleged that the file was not reflected in the File Movement Register and demolition action was not reflected in the Action Taken Report for the month of April, 2004.
The aforesaid stand of prosecution has been vehemently refuted by counsels for accused and it has been pointed out that the demolition action in the property in question on 23.04.04 has been duly supported even by the police witnesses examined by the prosecution and it has not been established on record that Mohd. Ahmed, JE did not visit A5, Kirti Nagar on 23.04.04. In the aforesaid context, the testimony of PW4 HC Sunder Singh, PW2 SI Ram Khilari and PW3 HC Dalbir Singh appears to be relevant.
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 54 It may be seen that PW4 HC Sunder Singh posted at PS Kirti Nagar was cross-examined on behalf of prosecution on the ground that he resiled from his statement u/s 161 Cr.P.C. but his deposition is categorical to the effect that on 23.04.04 they first went to Ramesh Nagar Double Storey and then to Kalra Hospital. He further stated that they reached Ramesh Nagar at about 11/11.15am and remained till about 2/2.30p.m. and further reached Kalra Hospital at around 3p.m. He further deposed that at Kalra Hospital, the vehicle was stopped on the road and he and other staff were left on the road for diversion of traffic and the MCD staff went inside the building and the MCD staff came about 30/45 minutes. Further, the police officials were allowed to leave at about 4/4.15p.m. Even during cross- examination by ld. PP for CBI, the witness stuck to his stand and stated that he had only stated to CBI that at Kalra Hospital, he was on the road and was diverting the traffic and did not know about the demolition action carried at the hospital. The witness during his cross- examination also stuck to the stand of visiting Kalra Hospital. The overall reading of the testimony of PW4 reflects that the MCD officials had also visited A5 Kirti Nagar for purpose of demolition action and the stand taken by the prosecution that the property no A5 Kirti Nagar was not visited for demolition action stands dented. It may also be noticed that during cross-examination on behalf of accused, the witness also stated that his statement was recorded by the Investigating Officer on 10.12.07 by hand at Ramesh Nagar as well as at Kalra Hospital. It was pointed out by counsel for accused during cross-examination itself that he had only been provided with one CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 55 typed statement allegedly recorded u/s 161 Cr.P.C. and no handwritten statement had been provided which reflects that the proceedings appear to be padded by the Investigating Officer as no handwritten statement has been relied upon by the prosecution.
Next, the evidence of PW2 SI Ram Khilari from P.S. Kirti Nagar who had also accompanied the demolition team on 23.04.04 may be further considered. PW2 SI Ram Khilari during examination- in-chief deposed that the team which had accompanied to Ramesh Nagar had visited Kirti Nagar area and he remained downstairs alongwith one or two other staff personnel. He also stated that the team was at A Block where demolition was carried for 30/45 minutes. This witness was also cross-examined on behalf of prosecution on the ground that the witness resiled from his statement made u/s 161 Cr.P.C. However, during cross-examination by ld. PP for CBI, the witness stated that he remained downstairs and the JE and the team had gone up and later on the team came down and told the police officials that they could leave. Further, during cross-examination on behalf of accused, he stated that old construction at Kalra Hospital was in existence and further construction was in progress on which the number of the premises was not clearly visible. This witness also stated that MCD vehicle and MCD team were at the spot when he had left the spot. The testimony of this witness also substantiates the stand of the accused that the MCD officials did visit A5 Kirti Nagar for purpose of demolition action and belies the claim of the prosecution that the MCD team had not visited A5 Kirti Nagar as alleged in the CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 56 chargesheet. This witness also stated that his statement was recorded by Inspector K.S. Lohchab, IO in his handwriting and it was pointed out on behalf of accused that no handwritten statement of the witness had been provided by the prosecution but only a typed statement alleged to have been recorded u/s 161 Cr.P.C. was relied. In the facts and circumstances, the padding of proceedings by the Investigating Officer cannot be ruled out, as only the typed statements recorded u/s 161 Cr.P.C. have been relied upon. It needs to be impressed that the deposition of aforesaid witnesses who are police officials cannot be ignored and there does not appear to be any possibility that they may have been influenced by the accused.
It may further be observed that PW3 HC Dalbir Singh posted at PS Kirti Nagar on 23.04.04, who had also accompanied the demolition team deposed that the MCD staff after demolition at Ramesh Nagar went to Najafgarh Road near Kalra Hospital wherein the MCD staff had gone to a building upstairs while he remained downstairs. This witness examined prior to transfer of the case to this Court surprisingly during examination was permitted to go through his statement u/s 161 Cr.P.C. to refresh his memory and, thereafter, was cross-examined by the ld. Public Prosecutor on the ground that he resiled from his statement recorded u/s 161 Cr.P.C. Even during cross-examination, PW3 stated that he did not recall whether he had stated to the IO that there was no demolition action carried out at A5 Kirti Nagar on 23.04.04 and stuck to the stand that since the demolition team had gone up and he was standing downstairs, he did not recall if the demolition had been carried out. Testimony of PW3 CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 57 HC Dalbir Singh, also does not support the case of prosecution that the MCD team had not visited A5 Kirti Nagar. Thus witness appears to be under some confusion as to the number of premises visited at Kirti Nagar but it does not support the case of prosecution since the stand of the prosecution is that demolition action was only carried out at Double Storey Ramesh Nagar but the area of Kirti Nagar was not visited by the MCD team.
The carrying of demolition action on 23.04.04 has been further supported by DW1 Balbir Singh and DW2 Jai Bhagwan examined in defence on behalf of accused Mohd. Ahmed. DW1 Balbir Singh also happens to have witnessed execution/service of notices issued under Section 344 & 343 DMC Act and also clarified that the baildars used to accompany the JE for the purpose of demolition action. DW1 Balbir Singh categorically deposed that during the course of investigation, he was taken to the building adjacent to the hospital by the CBI officials and he had informed them that demolition had been carried in the aforesaid building by him along with other baildars as per directions of JE. He further stated that he was also called at CBI office during investigation and had informed the CBI that demolition action had been carried in the building wherein the notices had been executed on which he identified his signatures.
DW2 Jai Bhagwan examined in defence, also deposed that he was also taken by CBI officials to a hospital which probably was bearing premises number A5 Kirti Nagar. Further, during investigation he had informed the CBI officials that he had visited the CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 58 aforesaid property for purpose of taking demolition and had carried the demolition but did not recollect the date on which the demolition action was taken. He further stated that he had also accompanied the demolition team for taking action at 2/3 properties but did not recollect their numbers. He further stated that they had visited A5 Kirti Nagar in the post afternoon period for demolition and demolition at A5 Kirti Nagar was carried for about 1-1½ hours. On cross- examination by ld. PP for CBI, the witness stuck to the stand that they took demolition action for about 1-1½ hours at A5 Kirti Nagar and further stated that they had taken demolition action on the top floor by way of demolishing the wall and puncturing the roof.
The testimony of both the aforesaid two witnesses examined in defence could not be dented in cross-examination. For the reasons best known, these witnesses were not examined or relied upon by the prosecution and are the witnesses who generally accompany the MCD team for the purpose of carrying out demolition action.
13. I am constrained to observe that the Investigating Agency does not appear to have fairly investigated the case as Anand Prakash Sharma, AE has not been examined though he was posted at the time of booking of the property for unauthorized construction vide FIR dated 10.02.03 as well as the entry dated 03.05.03 was signed by him wherein it was recorded by Mohd. Ahmed, JE that demolition action could not be taken due to non availability of police force. The said entry was countersigned by Anand Prakash Sharma, AE with the observations "try again". Thereafter, the entry dated 23.04.04 as to CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 59 partial demolition action has been countersigned by Shri V.K. Jain, Assistant Engineer on 23.04.04 it self with the observations "try again". In case the aforesaid entry had been fabricated and the proceedings had not been carried out as recorded then Shri V.K. Jain, AE was equally a part and parcel of the alleged conspiracy but has been let off by the Investigating Agency. It is surprising that neither Shri A.P. Sharma, AE nor Shri V.K. Jain, AE who were posted during the relevant period have been arrayed as accused nor have been cited as witnesses. In case the proceedings as alleged in noting dated 23.04.04 in the unauthorized construction file had not been carried, then there could not have been any occasion for V.K. Jain to endorse the aforesaid noting made by the JE under his signatures with the remarks "try again". The fact that the file was also in possession of Shri Mohd. Ahmed, JE stands corroborated by the fact that the same has been signed by Shri V.K. Jain, AE on the same date and no adverse inference has been drawn against him by the Investigating Agency that the same had been antedated by him. In the aforesaid context, it has also been pointed out by counsel for accused that in the chargesheet in column no. 12 in the particulars of 'accused not sent for trial', only the name of one Vinod Kumar, AE and Anand Prakash Sharma, AE appears to have been reflected without even referring to Shri V.K. Jain, AE who was the concerned officer who had countersigned noting dated 23.04.04, disputed by prosecution. Shri Vinod Kumar, AE appears to be the concerned AE relating to proceedings with reference to property no. J117 Rajouri Garden which has been separately investigated and a separate chargesheet filed has been bearing CC No. CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 60 134/13.
In the aforesaid context, it is also relevant to point out that a corresponding entry relating to demolition carried out on 23.04.04 as reflected in Unauthorized Construction file also stands recorded in the Demolition Register maintained by MCD which appears to have been recorded along with the entries of demolition carried at Ramesh Nagar on 23.04.04. The said entry does not appear to have been antedated as the same appears to be recorded in continuity in same ink and there is no evidence to substantiate if the same may have been subsequently recorded.
14. In the aforesaid background, now the contention raised by ld. PP for CBI may be considered whereby it is contended that since the file pertaining to A5 Kirti Nagar was not reflected in File Movement Register, the same had not been taken on 23.04.04 and the entry had been subsequently forged and fabricated.
A bare perusal of Demolition Register which reflects the demolition action carried in various properties on 23.04.04 may be seen. The entry dated 23.04.04 in the Demolition Register maintained by MCD reflects that on aforesaid date the demolition action had been carried at 28/10, E271, E272, D205, E206 Ramesh Nagar along with A5 Kirti Nagar. It has come up in evidence on record and is also reflected in the File Movement Register that on 23.04.04 only the movement of file relating to 23/3 Ashok Nagar & 25/2 Ashok Nagar is reflected which had been obtained by Shri R.P.S. Nain, JE. The demolition action carried in the various properties at Ramesh Nagar CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 61 has not been disputed by the prosecution despite the fact that the movement of the files in the File Movement Register has not been reflected. As such, it appears that the movement of the files was either taking place without the same being recorded in the File Movement Register or the same may have been missed to be made by the OI(B). The adverse inference for the missing entry in File Movement Register cannot be stretched to conclude that the entry in the Unauthorized Construction file had been later on fabricated as the entry dated 23.04.04 in UC file also stands countersigned by Shri V.K. Jain, AE on the same date itself.
15. It is also imperative to notice that demolition action was not taken after transfer of Mohd. Ahmed, JE and during the intervening period when he was not posted in concerned ward. Obviously, the conspiracy would also have been with the JE/AE/EE posted during aforesaid period rather being only confined with Mohd. Ahmed, JE since the UC file did not stand closed vide entry dated 23.04.04. The evidence on the point of conspiracy is based only upon entry dated 23.04.04 as to partial demolition action which is alleged to be concocted but the same has not been conclusively proved to be fabricated on record. It may also be observed that there is absolutely no evidence on record to show passing of any gratification or if Dr. R.N. Kalra had met Mohd. Ahmed, JE in specific. PW23 Inspector K.S. Lohchab, IO of the case categorically admitted in his cross- examination dated 21.05.14 that no specific evidence came to his notice if co-accused had met Mohd. Ahmed, JE in specific.
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 62 For the purpose of offence of conspiracy, the evidence should clearly reflect the meeting of the minds between the accused for achieving the intended object which is completely missing in this case. It is also imperative to notice that by merely making entry dated 23.04.04 the property of the owner/ builder could not have been saved from further demolition action. The duty for further demolition action also lay on the shoulders of succeeding officers (JE/AE) under the supervision of other senior officers in hierarchy after transfer of Mohd. Ahmed, JE. The same could also have been taken in the intervening period by the succeeding JE when Shri Mohd. Ahmed, JE was not posted in the ward from 01.09.04 to 08.08.05 and after 30.11.05. If any such conspiracy existed, then the officers posted after transfer of Mohd. Ahmed, JE were also equally responsible for failing to take demolition action but have not been chargesheeted by the Investigating Agency. Even the concerned AE and EE have even not been chargesheeted.
In the facts and circumstances and evidence led on record, I am of the considered view that the circumstances relied by prosecution do not establish conspiracy beyond reasonable doubt or if the entry dated 23.04.04 had been concocted by Mohd. Ahmed, JE in conspiracy with co-accused. The root of the prosecution case, as such, appears to be on a slippery ground.
16. It may further be observed that mere reflection of movement of files by OI(B) in the 'File Movement Register' for purpose of demolition action on the date fixed for demolition does not appear to CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 63 be conclusive to determine that the demolition action had not been taken. The possession of the UC file being obtained by JE without entry in the File Movement Register is probable and no adverse inference can be drawn merely because the movement of file was not reflected in the File Movement Register as already observed in preceding paras. It may also be noticed that the custody of the files and demolition register maintained by MCD remains with OI(B) but no explanation has come as to how the files could have been accessed by Mohd. Ahmed, JE if the same remained in possession of OI(B). Further, no complaint was lodged by AE(B) or EE in case the demolition action had been wrongly shown by Mohd. Ahmed, JE in the file.
It may further be noticed that a mere non entry of the file in the File Movement Register or the Action Taken Report or the missalbandh register or demolition claim charge register does not automatically lead to an inference that the entries for partial demolition action had been forged by the JE. The same needs to be assessed in the light of other circumstances and evidence on record.
During cross-examination of Moti Lal {the then Officer Incharge (Buildings)}, it has been brought on record that various entries existing in the Demolition Register were not supported by corresponding entry in the Missalbandh Register, File Movement Register, demolition charge register which may be due to negligence or oversight by OI(B) but were not disputed or chargesheeted by CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 64 Investigating Agency. The aforesaid aspect has been admitted by PW Moti Lal in his cross-examination dated 22.05.14 wherein he stated "The entry in respect of property no. 14/9 Punjabi Bagh may have been missed to be entered in File Movement Register, Demolition Charges Register, Missalband Register and Action Taken Report due to overload of work." He further admitted the missing entries in respect of property no. E-57, Tagore Garden Extn. and stated "The aforesaid entries in respect of property no. E-57, Tagore Garden Extn. may have been missed in the File Movement Register due to overload of work". He further admitted missing entry in respect of property no. 3/71, Punjabi Bagh, 38/75 Punjabi Bagh and 66NWA West Punjabi Bagh and stated that "The entry in respect of aforesaid properties may have been missed in File Movement Register and Action Taken Report due to overload of work."
It is also pertinent to note that during cross-examination, PW Moti Lal admitted that the missing entries in the File Movement Register and the Action Taken Report may have been due to overload of work. In the aforesaid context, examination of PW7 Moti Lal dated 17.01.13 may be noticed wherein he stated, "Sometimes due to overload of work the entry in relation to demolition action may be overlooked to be written in the Missalband Register". He also admitted in his cross-examination dated 22.05.14 that "The entries wherein required to be made in Missalband Register, File Movement Register, Action Taken Report and Demolition Charge Claim Register, if missing, may be due to CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 65 overload of work."
As such, it cannot be ruled out that the entries may be missed in the monthly 'Action Taken Report' by OI(B) and it cannot be conclusively inferred that the entry dated 23.04.04 is forged and the demolition action had not been carried by the JE.
17. Ld. PP for CBI has next contended that since the 'demolition charges' were not raised in respect of the property in question and claimed from the owner, the entry for partial demolition action was forged.
The contention has been vehemently opposed by counsel for accused and it has been pointed out that it is the job of OI(B) to prepare the letter of demand/bill for the demolition charges as per the entries in UC file or in the Demolition Register and, thereafter, the said letter/bill is sent to the owner/builder under the signatures of AE. It is also contended by counsel for accused that JE has in fact no role to play in recovery of said charges.
In the aforesaid context, it may be noticed that PW1 Naresh Kumar admitted that it is the duty of OI(B) to claim the demolition charges to whom the file is marked by AE(B). He also stated, "It is correct that as the duration has been mentioned on Ex.PW1/B, it was for OI(B) to prepare the notice for recovery of demolition charges". In aforesaid context, PW7 Moti Lal also admitted in his examination- in-chief dated 05.01.13, "The only reason why the entry of demolition action taken in the demolition charge register Ex.PW10/3 is not CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 66 mentioned in Ex.PW10/1 (1 to 101 colly) for the date 23.04.2004 in relation to property A-5, Kirti Nagar, New Delhi is that there may have been an overload of work." PW 10 Shri Mukhwant Singh, OI(B) in the aforesaid context also stated in his examination-in-chief dated 08.11.12, "If the JE has mentioned the duration of hours for which the demolition had been carried out, the notice for demolition charges is issued under signatures of the AE and prepared by the OIB." Similarly, it has come up in cross-examination of PW11 Ashish Sharma and PW20 Gautam Chand that demolition charges are to be claimed by OI(B). Thus, it is evident that the role of OI(B) appears to be more crucial for the purpose of claiming the demolition charges and it cannot be held that entry dated 23.04.04 had been fabricated subsequently merely because demolition charges were not claimed.
18. Ld. PP for CBI has next relied upon the technical report (Ex.PW22/B) in respect of A5, Kirti Nagar prepared by the MCD team constituted in 2007 on the request of CBI along with one Gurcharan Singh Sachdeva (Private Architect) and contended that unauthorized construction reflected in the report leads to inference that the demolition action had not been carried on 23.04.04.
In the aforesaid context, it may be noticed that PW8 Gurcharan Singh Sachdeva stated in his examination-in-chief dated 08.11.12 that he had met Bikramjeet Singh and prepared the site plan of existing structure at J117, Rajouri Garden, Z6 Rajouri Garden and A5 Kirti Nagar under supervision of Bikramjeet Singh, AE, Building Department, MCD. However, PW22, Shri Bikramjeet Singh stated CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 67 during cross-examination that he had never visited A5 Kirti Nagar at the time of preparation of Technical Committee Report and in response to Court query further clarified that he had signed the Technical Committee Report (Ex.PW22/B) as put up by Shri Komal Prasad Sharma, concerned JE. As such, the presence of Bikramjeet Singh at the time of the preparation of the Technical Committee Report stands disputed. Even otherwise, I am of the considered view that aforesaid report may be relevant to show that the unauthorized construction had been carried in the property but merely on the basis of construction reflected in the report prepared in the year 2007 after registration of FIR by CBI, it cannot be inferred that entry regarding partial demolition action dated 23.04.04 in the UC file and Demolition Register is forged. It cannot be ruled out that the property may have been renovated or repaired after the said partial demolition action was carried on 23.04.04. The period during which the further unauthorized construction came up in the property has not been conclusively ascertained. In the facts and circumstances, it cannot be concluded on the basis of Technical Committee Report prepared in 2007 that the entry dated 23.04.04 had been forged by Mohd. Ahmed, JE though the fact that unauthorized construction was raised at the time of booking of FIR in the property cannot be doubted.
19. It may further be noticed that though the present case was registered on the basis of Preliminary Enquiry conducted by Shri S.K. CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 68 Peshin, the then DSP but his statement was never recorded by the Investigating Officer and has not been examined by the prosecution. In the aforesaid context, IO Shri K.S. Lohchab in his cross- examination dated 23.05.14 stated that he did not see the Preliminary Enquiry report conducted by Shri S.K. Peshin after the investigation was marked to him and neither recollected if he had made inquiry from Shri S.K. Peshin regarding the Preliminary Enquiry. The Investigating Agency appears to have lost sight of the fact that though the PE was conducted on the basis of directions issued by the Hon'ble High Court of Delhi in Writ Petition (C) 4582/2003 Kalyan Sansthan Social Welfare Association vs. Union of India to probe the nexus of MCD officers including suspects within the hierarchy in the Engineering department, builders as well as the political bosses and, thereafter, FIR/RC registered but unfortunately neither the role of AE, EE, SE and DC appears to have been investigated along with builders and politicians, nor any convincing reasons have been brought on record for overlooking the directions of the Hon'ble High Court. Even though A.P. Sharma, AE and V.K. Jain, AE are stated to have been joined during investigation by the IO but their statements have not been placed on record for the best known reasons. The AE(B) was also required to attend the daily demolition programme of their respective area to supervise the demolition action programme as per Ex.PW23/DA but the responsibility cast under law appears to have been ignored. As such, the prosecution has failed to prove on record that the entry dated 23.04.04 had been fabricated and partial demolition action had not been carried in the property in question.
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors 69 However, the acquittal of the accused does not protect the JEs/AEs/EE (other than Mohd. Ahmed, JE) from departmental action who failed to take complete demolition action in the property in question after the transfer of Mohd. Ahmed, JE from the concerned Ward.
20. For the foregoing reasons, the prosecution has failed to bring home the charge against all the accused beyond reasonable doubt. All the accused are accordingly acquitted of all the charges.
Announced in the open court on 08th July, 2014.
(Anoop Kumar Mendiratta) Special Judge (PC Act) CBI-08 (Central), THC, Delhi.
CC No.133/13 - CBI vs. Mohd. Ahmed & Ors