Delhi District Court
Cbi vs . Dharamvir Khattar & Ors. Page 1 Of 179 on 17 December, 2015
1
IN THE COURT OF JITENDRA KUMAR MISHRA
SPECIAL JUDGE (PC ACT) CBI, KKD COURTS :
EAST DISTRICT : DELHI
Unique ID no. 02402R0717132005
AC No. 14/11/05
RC No. 39(A)/03
IN THE MATTER OF :-
Central Bureau of Investigation (CBI)
VERSUS
1. Sh. Dharamvir Khattar
S/o Late Sh. Hari Chand Khattar
R/o 54, Sukhchain Marg, Phase-1, DLF Gurgaon, Haryana.
(President Bhairon Mandir Samiti,
Plot No. 1, Prasad Nagar, Institutional Area,
New Delhi.
...... (A - 1)
2. Sh. M.K. Sharma (JE, DDA)
S/o Late Sh. Saidev Sharma
R/o H. No. 4, Maheshwari Apartment,
Sec. - 1, Rohini Delhi - 84. ...... (A - 2)
3. Sh. K.M. Johri (AE, DDA)
S/o Sh. S.N. Johri
R/o F-1/24-B, MIG Flat, Hari Nagar,
New Delhi. ...... (A - 3)
Date of Institution : 30.08.2005
Date when Judgment is reserved : 26.11.2015
Date of Judgment: : 10.12.2015
CBI Vs. Dharamvir Khattar & Ors. Page 1 of 179
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J U D G M E N T
1 Facts of the case of prosecution in brief are that on the basis of source information case RC No. 39(A) of 2003 was registered by the CBI on 11.07.2003 with the allegation that accused Dharamvir Khattar entered into a criminal conspiracy with Sh. S. K. Mittal and P. L. Garg, both JEs of the DDA and other unknown DDA officials and attempted to cheat and cause pecuniary loss to the Govt. Exchequer by using premises of Bhairon Mandir Samiti (hereinafter referred to as "BMS") and Hari Chan Parkash Wanti Trust as hotel as against the agreed religious purposes, for which the land have been allotted by the DDA. The investigation in respect of Hari Chand Parkash Wanti Trust, which had been allotted a plot for religious purpose at 2, Khel Gaon Marg, New Delhi was separately conducted.
2 It is further case of the prosecution that during the course of investigation, it was found that on 17.01.1986 plot bearing no. 1, Kalindi College Road, East Patel Nagar, Institutional Area, Prasad Nagar, New Delhi measuring 600 sq. yards was allotted to CBI Vs. Dharamvir Khattar & Ors. Page 2 of 179 3 BMS for religious purpose through accused Dharamvir Khattar. Allotment for religious purpose was made on the basis of false declaration filed by accused Dharamvir Khattar. The building plans were also got sanctioned on the basis of false declaration. As per the sanctioned building plan, the BMS was to construct a basement for storage purpose, ground floor; having certain rooms, toilets, etc. mezzanine floor consisting of four store rooms, first floor and second floor. The actual construction carried out was totally in contradiction to the sanctioned building plan in as much against the mezzanine floor consisted of four store rooms, staircase, first floor and second floor, accused Dharamvir Khattar constructed full four storeys in addition to the ground floor. Accused Dharamvir Khattar had applied for sanction of the building plan on 11.03.1986. Form C was issued by building section of DDA to BMS on 26.02.1988. From D was issued on 22.04.1988 and the Occupancy Certificate was issued on 25.08.1988.
3 As per case of the prosecution, accused Dharamvir Khattar entered into a criminal conspiracy with accused K. M. Johri and in pursuance thereof, he inspected the premises of BMS and CBI Vs. Dharamvir Khattar & Ors. Page 3 of 179 4 dishonestly submitted a false NOC report form on 16.08.1988 that there was only ground floor, mezzanine floor consisting of just four store rooms, first floor and second floor apart from basement though no mezzanine floor consisting of four store rooms were constructed in the building. According to the case of prosecution, during investigation it was revealed that from the year 1988, accused Dharamvir Khattar started misusing the unauthorisedly constructed premises as a restaurant named "Atithi". In the year 1992-93 Delhi Fire Service and MCD found at the time of inspection that the aforesaid building was named as "Atithi Guest House" and not "Bhairon Mandir Samiti". Delhi Fire Service also mentioned in its report that premises consisted of a restaurant, reception office, kitchen on the ground floor and well furnished 8 guest rooms each on the rest of the floors. It is further case of the prosecution that JE S. Phogat inspected the site on 17.8.93 and reported that a hotel in the name of "Basera' was being run on plot no. 1, Prasad Nagar, New Delhi allotted to BMS. Even in the year 1997 unauthorized construction and misuse of premises was continued due to complicity of accused Dharamvir Khattar with accused M. K. Sharma, JE of the DDA. Accused M. K. Sharma was required to CBI Vs. Dharamvir Khattar & Ors. Page 4 of 179 5 make a report regarding construction of a hotel on the plot allotted for temple in Institutional Area, Prasad Nagar. However, in his report dated 1.5.98 he reported that the building has been constructed upto top floor with basement and mezzanine floor. He further reported that the mezzanine floor was being used for Mandir and Kirtan activities and on the other floors there were number of rooms. He again reported on 9.6.98 that building plan was sanctioned by DDA vide letter no. F.13(31)/86/Bldg/172 dated 11.3.86 and the occupancy certificate has been issued upto 2 nd Floor, with basement and mezzanine floor. He made a false report by hiding the fact that there was no mezzanine floor and that instead of first and second floor, there were 1 st, 2nd , 3rd and 4th Floors. It is case of the prosecution that number of persons and travel agencies were using the hotel at plot no. 1, Prasad Nagar, Institutional Area, New Delhi to accommodate their guests. 4 It is further case of the prosecution that accused H. C. Sharma who was the General Manager of the Hotel, in conspiracy with accused Dharamvir Khattar was misusing the plot for commercial purposes which was allotted for religious purpose. The CBI Vs. Dharamvir Khattar & Ors. Page 5 of 179 6 prosecution alleges that there was a bar cum restaurant in the hotel and number of foreign tourists used to occupy the said hotel. The hotel had a banquet hall where birthday/wedding functions were frequently organized by the residents of the area. Accused Dharamvir Khattar in conspiracy with accused K. M. Johri and accused M. K. Sharma also caused a wrongful loss of Rs.2,62,810/- to the DDA as the ground rent for the plot was also not paid for several years.
5 On completion of investigation, charge-sheet was filed before the Court. Copies of documents were supplied to the accused persons in compliance with provisions of Section 207 Cr.PC.
CHARGE 6 Charge for offences punishable under Sections 420 IPC and Section 120B IPC read with Section 13(2) read with Section 13 (1) (d) of PC Act were framed against Dharamvir Khattar (A-1).
Charge for offences punishable under Sections 120B IPC read with Section 13(2) read with Section 13 (1) (d) of PC Act CBI Vs. Dharamvir Khattar & Ors. Page 6 of 179 7 and substantive offence under Section 13 (2) read with Section 13 (1) (d) of the PC Act were framed against K. M. Johri (A-2).
Charge for offences punishable under Sections 120B IPC read with Section 13(2) read with Section 13 (1) (d) of PC Act and substantive offence under Section 13 (2) read with Section 13 (1) (d) of the PC Act were framed against K. M. Johri (A-3) vide order dated 23.09.2006, to which all the accused persons pleaded not guilty and claimed trial. Prosecution was called upon to lead evidence.
PROSECUTION EVIDENCE 7 In order to prove its case, prosecution examined following witnesses:-
PW1-Sh. K. K. Gupta - R/o 277 MIG DDA Flat,
Prasad Nagar, Phase-I, New
Delhi-5
PW2-Sh. S. R. Kailey - R/o 255 MIG Flat, Prasad Nagar,
New Delhi.
PW3-Sh. Sukhbir Phogat- Junior Engineer (Civil), DDA,
Vasant Kunj, New Delhi.
PW4-Sh. Brijinder Rai - ADGP, Haryana Police (Rules),
Panchkula
CBI Vs. Dharamvir Khattar & Ors. Page 7 of 179
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PW5-Sh. P. S. Uttarwar- Govt. Servant R/o 7/13, DDA
Officers Flats, Bhagwan Dass
Road, New Delhi-01
PW6-Sh. S Thangraj - Private Job, R/o H. No.15, 1st
Main, Shivaganga Layout, Outer
Ring Road, Mahadev Pura,
Bangalore-560048
PW7-Sh Hari Kishan - Divisional Officer, Delhi Fire
Service
PW8-Sh. V. Kanan - Employee of M/s Supreme
Universe Destination
PW9-HC Rajender Prasad- Anti Corruption Branch, Govt. of NCT PW10-Sh. S. Kannu Samay- Manager, Corporation Bank, Karur Branch, Tamil Nadu.
PW11-Sh. Amar Chaterjee- Deputy Resident Commissioner, Govt. of Bihar, Bihar Bhawan, New Delhi.
PW12-Sh. Akhlesh Kumar Barnwal- Retired from Govt. of UP.
PW13-Sh. R. P. Nanda - Retired from DDA.
PW14-Sh. Avdesh Kumar - Resigned as Asstt. Director
(Planning) DDA
PW15-Sh. V. Edward Johonson- Retd. Chief Manager of Syndicate Bank, K. G. Marg, New Delhi.
PW16-Sh. R. S. Yadav - R/o H. No. B-1233, Gali CBI Vs. Dharamvir Khattar & Ors. Page 8 of 179 9 No.35, Sant Nagar Burari, Delhi.
PW17-Sh. J. B. Sharma- Photographic Officer, DDA, Vikas Sadan, INA, New Delhi.
PW18-Sh. Tapan Mandal - Director (Planning) DDA. PW19-Sh. R.Laxmi Narayappa- Manager, SBI, Mysore, CCPC, Banglore, India.
PW20-Sh. N. V. N. Krishnan- DSP, CBI AC-II, New Delhi.
PW21-Sh. Umesh Vashisht- Ex. Inspector CBI, ACB
PW22-Sh. Rajiv Kr, Rishi - Inspector CBI, BS & FC
PW23-Sh. R. P. Gola - Retd. Supt. From MCD
PW24-Sh. Prem Nath - Inspector CBI, ACB
PW25-Sh. Nirbhay Kumar - SP, EO-II, New Delhi
PW26-Sh. Madhukar Gupta- Retd. IAS
PW27-Sh. Manish Garg - Additional Director (Edu.),
Govt. of NCT
PW28-Sh. R. C. Sharma - Inspector CBI, ACB, New
Delhi.
PW29-Sh. Jitendra Pandey - R/o WZ-196/B/1, Gali
No.2A, Virender Nagar,
Janakpuri, New Delhi.
Prosecution evidence was closed vide order dated.
14.10.2015.
CBI Vs. Dharamvir Khattar & Ors. Page 9 of 179
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STATEMENT UNDER SECTION 313 CRPC
8 Statement under section 313 Cr.P.C. of all the accused
persons recorded. In statement under Section 313 CrPC, accused persons denied all the incriminating material appearing in evidence against them and claimed innocence.
DEFENCE EVIDENCE 9 In their defence, accused persons examined Insp. Arjun Singh as DW1, Sh. S. K. Arora as DW2 and Sh. Sanjay Upadhaya as DW3. Defence evidence in the present matter was closed on 24.11.2015.
APPRECIATION OF EVIDENCE :
10 PW-1 is a retired Air Force Officer. Ms. Alka Goel was his daughter and function of her ring ceremony was performed in the year 1993 at Atithi. The basement of this building was used by him for function of ring ceremony and was attended by the relations of boy and girl side. Nominal Charges may be Rs.5000/- to Rs.6000/- was paid by him. The building was falling in East Patel CBI Vs. Dharamvir Khattar & Ors. Page 10 of 179 11 Nagar but he could not say if its number 1, East Patel Nagar.
During cross-examination on behalf of A1, this witness further stated that Atithi is at a distance of 500 yards from his house. He had seen the sign board Atithi on the right hand corner. The front of this building is towards the east. He did not know if Atithi is not a Hotel. No receipt of payment was issued to him. He did not see any temple in Atithi. He had brought soft drinks from the outside and the halwa was prepared and served in Atithi. He did not know if Atithi was running by BMS or if Atithi is a Dharamshala.
This witness was not cross-examined by A2.
During cross-examination on behalf of A3, nothing substantial has been challenged to this witness.
During entire cross-examination, it is admitted case of A1 that there was existence of Atithi though it is claimed that it was running by BMS and is a Dharamshala. It is also not disputed that the ring ceremony was performed, as per testimony of PW1, in the year 1993. Witness stated that nominal charges were paid by him. However, nothing has been suggested during cross-examination that Rs.5000/- - Rs.6000/- were paid by him not as charges but as CBI Vs. Dharamvir Khattar & Ors. Page 11 of 179 12 donation and receipt was issued to PW1. No such receipt book has been brought on record. Therefore, there is no serious dispute raised against the testimony of PW1 by accused persons. 11 PW-2 was retired as Dy. GM, MTNL in the year 2001. He was living in Flat no. 225 since the year 1997. Sh. Rajinder Singh Arora was his neighbour. He had performed function of betrothal ceremony of his daughter in the basement of Atithi sometime in the year 1992. He stated that the building may have been constructed in the year 1987 or 1988. This is a five storey building since the very beginning and never seen any temple in the compound of this building. He identified photograph of this building as Ex PW2/A. He did not know if Atithi was later on known as BMS. He had not seen any religious activity in Atithi.
During cross-examination on behalf of A1, it is stated by PW2 that since there is a intervening wall between his flat and Atithi, he could not say whether any function used to be held there or not. There are two temples near Atithi but he could not tell their names. Kirtan used to perform in said temples. He further stated that people used to discuss that a building used to be constructed CBI Vs. Dharamvir Khattar & Ors. Page 12 of 179 13 and that is how he knew about construction of the building. It took two years in constructions of the said building. There is no building on the back of Atithi. He denied the suggestion that Atithi is a Dharamshala. He has further stated that he never heard that any Dharamshala was running in Atithi.
There is no challenge to the testimony of this witness on behalf of A2.
During cross-examination on behalf of A3, it is stated that building may have been constructed in the year 1988-89. He denied the suggestion that unauthorized construction was made after the year 1989-90. He stated that he used to seek building from outside but he entered the building for the first time when he attended function of sagai ceremony. He denied the suggestion that building was completed in one row. He further stated that he was noticing the building since its construction had started. He neither admitted or denied that if any additions were made in this building in 1992-93. He further stated that he had given the period only by approximation but he could not tell if construction of building was started in the year 1987.
Thus, it is clear that from the entire examination and CBI Vs. Dharamvir Khattar & Ors. Page 13 of 179 14 cross-examination of PW2 that existence of PW2 at the address mentioned, has not been disputed. Therefore, it proves that PW2 is a witness who is living at the address mentioned in his testimony. The function as held in the basement of Atithi has also not been disputed. The testimony of PW2 is also not challenged wherein it is stated that this is a five storey building since the very beginning. He has clearly stated that it took about 2 years in completion of this building. He also differentiated between religious functions and social activities on the one hand and others on the other hand. He denied the suggestion that Atithi is Dharamshala. He also stated that construction took place in the year 1987.
During arguments, it is submitted on behalf of A3 that witness is not able to tell the date when the construction of this building was started or completed as witness has denied the suggestion that construction was made after the year 1989-90 but specifically he stated that construction took place in the year 1987-
88. Ex PW2/A is perused wherein it is specifically mentioned that there was no temple existing in the premises of Atithi hotel. Moreover, photograph which is part of the statement of Ex PW2/A wherein ground floor, first floor, second floor, third floor and fourth CBI Vs. Dharamvir Khattar & Ors. Page 14 of 179 15 floor are clearly visible. Therefore, testimony of PW2 remained almost unblemished in as much as the ring ceremony and betrothal ceremony of the daughter of PW2 has not been challenged. It is also not challenged that this five storey building was constructed since the very beginning. No where it is challenged that the building was not constructed upto five storey since very beginning. The only suggestion given on behalf of A3 was that the unauthorized construction was made in the building after the year 1989-90. It is also suggested to PW2 that building was completed in one row.
Another challenge has been given to PW2 that additions were made in the building in the year 1992-93 but it is not challenged that the building was constructed in one row. Therefore, the testimony of PW2 could not be demolished by either of the accused.
12 PW-3 stated that he was posted as JE (Civil) in Institutional Building Section of DDA from August, 1993 to May 1994. His duty was to pursue building permits and to submit CBI Vs. Dharamvir Khattar & Ors. Page 15 of 179 16 Inspection reports. In addition he was also expected to submit any special report asked for by any officer. He was expected to inspect the buildings for which form C, form D, completion certificate/occupancy certificate had been applied by any party. He had to serve show cause notice/sealing cum demolition order in concerned cases. He was directed by Sh. P. S. Uttarwar, Deputy Director, Institutional Area (Building) to make inspection of institutional buildings in the area of Prasad Nagar and to submit his report regarding the same. He inspected 4-5 Institutional plots where buildings were constructed by allottee. He had inspected the premises BMS only from outside. On inspection, it was found that in the building basement, ground floor, first floor, second floor, third floor and fourth floor were constructed. He was not permitted to inspect the building from inside. Thereafter, he observed the building from outside and recorded his notings at the spot in his diary and prepared his report alongwith rough sketch in his office. Photocopy of same are Ex PW3/A1 and Ex PW3/A2. Both these documents were objected by learned counsel being photocopy as their originals were not proved. Reports were prepared in his handwriting.
CBI Vs. Dharamvir Khattar & Ors. Page 16 of 179 17
On 18.8.1993, Sh. Ripin Prakash, AE (C) again inspected the same area in his presence and submitted his report in his handwriting. Said report is Ex PW3/B. Witness identified handwriting and signatures of Sh. Ripin Prakash. This document is objected by learned defence counsel.
On 5.11.93 he pasted the show cause notice on plot no. 1, Prasad Nagar, Institutional Area and submitted his report which was in his handwriting and same is Ex PW3/C (Objected by learned defence counsel). He contacted the dealing assistant of Institutional Land, DDA. He told that building file has already been sent to DDA, L & I, Building. It is further stated by him that he submitted note sheet in his hand-writing and same is Ex PW3/D. Sh. Anand, his AE marked the file to him vide his endorsement from portion B to B for necessary action. Same is Ex PW3/D1. Thereafter, he prepared his detailed report Ex PW3/D2 in his office. The unauthorized construction was noted at the spot, as mentioned in his report from Sl. No. 1 to 6 of Ex PW3/D2. He had taken photograph after pasting show cause notice. Those photographs are Ex PW2/A and Ex PW3/E1 to Ex PW3/E4 and negatives are Ex PW3/F. He further identified the file regarding plot no. 1, Prasad CBI Vs. Dharamvir Khattar & Ors. Page 17 of 179 18 Nagar Ex PW3/G (colly whole file). He dealt with this file and therefore he identified the notings of this file.
He further shown note dated 23.10.1993 of Mr. P. S. Utarwar regarding plot no. 1 of Institutional area allotted to Bhairo Ji Mandir Samiti vide file no. F8(25)84/IL and lease also executed on 17.01.86. As per noting of P.S. Uttarwar "that the use of the building is contrary to allotment i.e. institutional, you are requested to examine and take necessary action for mis-use if any".
He further shown note dated 27.10.93 of Mr. P.S. Uttarwar and the note is sent to Sh. J.P.N Grover, JD (Institutional Land), DDA. The copy of said note is Mark PW-3/Z. This witness was cross-examined at length by counsel for A1 wherein it is admitted by this witness that his statement was recorded by the CBI. He further stated that whatever he had stated to the CBI that was recorded in his statement. He further stated that he had read his statement there and then only which was found correct as per his narration. He remembered that he had visited property no. 1, Institutional Area, Prasad Nagar, 3-4 times but seen from inside only once. When he had visited inside of the premises, he had noted down about the construction. CBI Vs. Dharamvir Khattar & Ors. Page 18 of 179 19
During further cross-examination, he stated that he was refused to enter the said premises by the staff present there. He did not disclose his identity. He had spoken to guard to allow him enter the premises which the guard told him that he would not allow it. The guard called someone from inside, the said person also did not allow him to inspect the premises. After one or two days, he again visited the premises with his immediate boss. Again, they were not allowed to enter into the premises. Sh. P.S. Uttarwar, Dy. Director, (L & I, DDA) had not specifically told him that some construction activities were going on in property No. 1, Prasad Nagar, Institutional Area. He admitted that he told to CBI at the time of recording of his statement U/s 161 Cr.P.C. that the said statement was based upon Ex. PW-3/G (colly whole file).
Upon specific question, this witness further stated that document D-11, D-12, D-13, D-14, D-15, D-20, D-21 and D-22 were shown by IO at the time of his examination U/s 161 Cr.P.C. He further stated that he told that at the time of his examination under Section 161 CrPC about D-11, D-12, D-13, D-14, D-15, D-20, D-21 and D-22 to IO but IO did not mention in his statement. He further denied the suggestion that he had not visited property in CBI Vs. Dharamvir Khattar & Ors. Page 19 of 179 20 question i.e. 1, Prasad Nagar, Institutional Area with AE Ripin Prakash.
He further admitted during cross-examination that when he visited the premises 3-4 times, he had noticed a signboard of "Bharaon Mandir Society". Vol. 'Basera Bharon Mandir Society'. Besides 'Basera', he had noticed that it was mentioned in the Board that Basement for Banquet Hall, Ground Floor for Restaurant and Offices and Guest House for Upper Floors. The 'Basera' mentioned in the board was noticed in his first visit and remaining things were noticed in the year 1994 at the time of detailed inspection.
He has further stated that inference from the word 'Basera' was drawn as Guest House from the people met at the spot. Those people did not disclose their names. He had enquired from Guard, staff working inside and all of them disclosed that it is/was a Guest House. He had admitted that premises was leased for religious and Dharamshala purposes. A suggestion was given to the witness that no notice was available on Court record but witness sought permission to see court record. Learned defence counsel did not object and after seeing the entire file, notice was found in the Court file and same was Ex PW3/D2. Witness stated CBI Vs. Dharamvir Khattar & Ors. Page 20 of 179 21 that it is the same notice which he had pasted at the premises. Dy. Director Sh. P. S. Uttarwar had issued the said notice. Photographer had taken photograph of the pasted notice in his presence. He further denied the suggestion that he never noticed any guest house in the said premises.
During cross-examination on behalf of A2, witness stated that DDA has various branches like Building Section, Institutional Land and Enforcement Department and others. Each and every department/Section has its own duties fixed by the Department. Misuse of the building is to be verified and checked by the Institutional Land and Enforcement Department. Building Section is duty bound to verify unauthorized construction.
During cross-examination on behalf of A3, this witness stated that he could not tell the extent of construction existing on the property in question as on 23.8.98. He denied the suggestion that he deliberately not told the CBI that unauthorized construction was going in the building in the year 1993.
Ex PW3/J is perused. It is page 6 of Ex PW3/G (colly whole file). In Ex PW3/J, it is noted at point C "this is a case of unauthorized construction". Ex PW3/D1 which is noting made by CBI Vs. Dharamvir Khattar & Ors. Page 21 of 179 22 PW3 where it is clearly mentioned that building plan was sanctioned with 33 % coverage and 100 FAR in which mezzanine floor and basement is not counted. It is also mentioned in the noting that building plans were sanctioned/completion issued for ground floor + first floor + second floor + mezzanine + basement (only for storage) where as existing are basement + ground floor + first floor + second floor + third floor + four floor + store and toilet at terrace floor.
Ex PW3/D2 wherein it is clearly mentioned that there are following main unauthorized construction:-
a. basement, one was shifted in front of set back and side set back/open space and being mentioned as Banquet Hall/ like that b. Ground floor has been shifted on side open space changing the envelope and planning and being maintained as restaurant/office/like that.
c. Instead of mezzanine, regular first floor has been constructed and shifted on side open space changed the planing and envelope being used as guest house etc. d. Second floor, third floor and fourth floor same as first floor.
e. On terrace store and toilet etc. has been constructed.
f. Temporary/permanent structure in rear and side front set back.CBI Vs. Dharamvir Khattar & Ors. Page 22 of 179 23
He had further noted that as far as coverage, there are extra coverages on each sanctioned/completion floor. He further observed that as far as floors are concerned, third floor, fourth floor, store and toilet at the terrace are unauthorised.
During cross-examination, witness stated that Ex PW3/D2 bears date 28.10.93. This witness further referred Ex PW14/1. There is no challenge regarding the testimony of this witness that he noticed sign board of 'Basera Bhairo Mandir Society'. Witness specifically stated that he has noticed at the board that base for banquet, ground floor and office and rest house for upper floor. There is no challenge to the testimony of this witness.
13 PW-4 stated that in the year 1998, he was posted as CVO in DDA. While he was in his office in the last week of May, 1998, he received an anonymous call from an Ex-employee of A1, who disclosed his name as Vinod. He informed that there are two plots of institutional area, one was at Patel Nagar Institutional Area and other was Khel Gaon Marg Opposite Siri Fort Auditorium. It CBI Vs. Dharamvir Khattar & Ors. Page 23 of 179 24 was informed that these allotments were for the purpose of temple and Dharamshala but were being used as Hotel to please some senior bureaucrats, politicians and members of judiciaries. He was informed that various activities were going on in these hotels and if he raid one building, immediate information would be sent to the other building and the members of staff would change their uniform as Pandit, Brahimans etc. and would start doing Bhajan etc. and he would not get any evidence. Since witness used to reside in Asian Games Village, he went to building at Khel Gaon Marg in his private car. He asked for room and wanted to have a look at room. The Manager at the hotel reception provided him a tariff card. In the basement there was a banquet hall. From there he was taken in a lift to the first floor and second floor of the building and shown one room on the first floor and one room on the second floor. Each room was fitted with an AC, Television, Refrigerator, telephone and was nicely furnished. Witness picked up one menu card from one of the room and enquired from the Manager whether he would get food. The manager told him that apart from the food he would get everything including whiskey and woman. He told that he was travelling from Ludhiana. After having a good look, he came down CBI Vs. Dharamvir Khattar & Ors. Page 24 of 179 25 to the reception and told the manager that the tariff was on the higher side and therefore he was not interested. He reached in his car alongwith tariff card and the menu card and drove to building no. 1, Patel Nagar, Institutional area in his personal car. Witness did not know the location of the said building, by the time he reached there, it was 11.30 pm. The anonymous caller had told him that if he would asked about Hotel Basera anybody would guide him to the place. He made enquiries from rickshaw puller near Hotel Sidharth and he guided him to building no.1, Patel Nagar, Institutional Area, Hotel Basera. He went to the reception and asked for tariff card and wanted to know the availability of the room from the person who was standing at the reception. The person told him that he did not have any tariff card or the register but he could very well show him the rooms which were available.
Through lift, he took him to first and second floor. He had looked two/three rooms and then he came down. The rooms were fitted with Television, Air conditioner, Double Bed and telephone. He told the person at reception that he wanted to make entry regarding his stay. The person told him that they did not have any such register. Witness told that person that since he could have any record of his CBI Vs. Dharamvir Khattar & Ors. Page 25 of 179 26 stay, therefore, he would not take room as anything can happened to him. At this stage, man at the reception started arguing with him that the witness was unnecessarily wasting his time. As he was coming out, there was a small room opposite the reception. He noticed two young boys taking whiskey. One of the boy came out and told him that he was owner of the hotel and enquired as to what was the trouble. He told the boy that his hotel did not have any tariff card, menu card and any register for the guest. That boy told him that he was son of the owner and he could get him anything including whiskey. Witness told him that he did not want to stay in his hotel and came out. 4-5 of the hotel staff came out when he was going towards his car. Witness told them that he was a businessman and hopefully they would meet again very soon.
Next morning in the office, he collected his team Director (V) A. K. Baranwal. Dy. Directors and Asstt. Directors, Camera photographer, Video photographer and first of all they raided at 2 Khel Gaon Marg. They officially seized the tariff card, menu card and the documents which established that regular hotel was being run over there. The member of the team visited various rooms. They took photographs and videography from inside as well CBI Vs. Dharamvir Khattar & Ors. Page 26 of 179 27 as outside the building.
From there they went to plot no. 1, Patel Nagar, Institutional Area and took the photographs and videography from the hotel from inside as well as outside. They returned to their office and submitted report to Vice Chairman to DDA and also to Hon'ble LG after 1-2 days. Report is Ex PW4/A, which was signed by witness at point A. It is further stated by the witness that during inspection, of 1, Patel Nagar, Institutional Area alongwith his team, it was found that a hotel was being run in the building. There were more than 35 rooms in hotel Basera at Patel Nagar though this land was allotted to BMS Dharamshala. He identified the signatures of Sh. A. K. Baranwal, Director Vigilance on his report Ex PW4/B at point A. Photography and videography were deposited in the office.
It is further stated by the witness that letter dated 28.5.98 addressed to Smt. Ashma Manzar, Director Land, DDA, Vikas Sadan. This letter was written by him in connection with inquiry which was pending in Vigilance Branch of DDA. The letter is Ex PW4/C. He identified his signatures at point A. During cross-examination on behalf of A1, witness CBI Vs. Dharamvir Khattar & Ors. Page 27 of 179 28 stated that he joined DDA as Chief Vigilance Officer on 13.7.97 and placed under suspension from DDA w.e.f. 18.8.98. He stated that telephone call was received by him in his DDA Vigilance Office on telephone no. 24621489 which was put to him through his PA inside the room. On second call on his insistence, caller disclosed his name as Vinod. Both the calls were received on the same day one after other. He further stated that he was sure that his PA was not keeping record of his incoming calls. Upon receipt of this call, he did not depute any of his subordinates to visit the place of the property regarding which this call was made. He did not make any official requisition for calling for the records of the two properties. CBI had collected all the documents in connection with raid conducted by him. He denied the suggestion that his designation or his post did not empower him to carry out inspection and surprise check. His first visit to the property in question was on 10.6.98. At the time of second visit, only the police station of Hauz Khaz was informed and he also deputed by Assistant to collect the police report in which they earlier inspected the premises and issued the NOC for these premises. All these reports were the part of the DDA record which were seized by the CBI. Mr. A. K. CBI Vs. Dharamvir Khattar & Ors. Page 28 of 179 29 Barnwal, Director Vigilance had arranged all these photographers. Out of these one was of DDA and two were private photographers. The photographers were taken by him only on 11.6.98 alongwith DDA staff. On 11.6.98, he alongwith officials of Vigilance Department visited the Patel Nagar property in the afternoon and photographs were taken in his presence. At that time, he was inside the premises when the photographs and videography was done. The number of photographs were 20 if he remembered the same correctly. He did not remember the time for how long the videography continued. He denied the suggestion that out of malice towards A1 he had made wrong statement or he created false record against A1. He denied the suggestion that there was no misuse of property in question or that it was being used only for the purpose in accordance with the terms and conditions of the lease deed.
During cross-examination on behalf of A2, witness stated that at the time of his first visit, it was a private visit otherwise if it was an official visit then departmental instructions were that single officer should avoid the same. He admitted that on second visit on 11.6.98, he found waiters wearing dhoti and signing CBI Vs. Dharamvir Khattar & Ors. Page 29 of 179 30 Bhajans in front of a small statue of Lord Hanuman in a hall in the second property i.e. Patel Nagar property as informed by anonymous caller.
Testimony of this witness remained unchallenged on behalf of A3.
Ex PW4/A is perused. This document bears date 12.06.1998 wherein it is specifically observed about unauthorized construction of the huge building came up. It is further observed that DDA officials did not take notice of it and there was nexus between DDA and unscrupulous builder lobby. Copy of this document was also sent to Secretary, CVC for information. Ex PW4/B is also perused. It is also dated 12.06.1998 wherein it is specifically observed that at the entrance of hotel, there is very small temple has been established. It is further reported that AE, JE were not reported the misuse to higher authorities for taking action.
Ex PW4/C is perused. It bears date 28.05.98 wherein it was reported that four storey air-conditioned hotel on a temple plot was constructed. Report was not forthcoming even after issuance of nine reminders.
CBI Vs. Dharamvir Khattar & Ors. Page 30 of 179 31 14 PW- 5 stated that in year 1993, he was posted as Deputy Director (Buildings) in Layout and Institutional Unit of DDA. His duties were to comprise of sanction of building plans monitoring work of the staff of the said unit. He stated that probably in the year 1993-94, some site inspection took place regarding unauthorized construction and misuse of building. Show cause notice was issued to some institute namely BMS or something. Concerned AE and JE must have been instructed to inspect the site. He has further stated that it is difficult to identify hand-writing of the author of site inspection report dated 17.8.93 in respect of Patel Nagar Institutional Area plots no. 1 to 4. However, said report was submitted by Sh. S. Phogat. He identify his signatures at point A on the report Ex PW3/A1. He further stated that he knew Rippin Prakash, AE working under him. He had directed Rippin Prakash for inspection of plot no. 1 to 4, Prasad Nagar, Institutional Area. Mr. Phogat was authorized by AE for inspection of the abovesaid plots. Ex PW3/D2 is the inspection report regarding plot no. 1, Prasad Nagar Institutional Area given by Mr. Phogat, JE. It bears endorsement of Sh. Shrish Khodankar in this report at point C. Mr. Khondankar was his successor.
CBI Vs. Dharamvir Khattar & Ors. Page 31 of 179 32
Ex PW5/1 is the copy of note dated 19.08.1993 whereby it was asked for verification of records bearing his signatures at point A. They had also submitted Land Protection Branch and Joint Director Institutional Land for record for allotment/possession of plot no. 1. It was put by him before Joint Director for approval and he identified his signatures at point B. He also proved note date 25.08.93 as Ex PW5/3 which bears his signatures at point C. Again he put up the note on 26.08.93 which bears his signatures at point D. He further proved Ex PW3/B which is site inspection report of Sh. Phogat, JE dated 18.08.93 regarding unauthorized construction on plot no. 1. He further proved site inspection report dated 17.08.93 of plot no. 1 to 4 Ex PW3/1/A1. By this Mr. Phogat recommended that information be asked from records that if there was any building plan approved or not for BMS and cases may be referred to Land and Enforcement Section DDA. Rough sketch plan Ex PW3/A2 which bears signatures of Sh. Phogat at point A. This report came to the witness through AE. AE Rippen Prakash was transferred from office of Chief Engineer in a routine manner. He further referred Ex PW3/C which is pasting report of the show cause notice pasted by Mr. Phogat at site CBI Vs. Dharamvir Khattar & Ors. Page 32 of 179 33 building of BMS, Plot no. 1 Prasad Nagar Institutional Area.
During cross-examination on behalf of A1, this witness stated that when his statement was recorded in the office of CBI, he almost spent whole day there. No one else accompanied him to the CBI office. He has further admitted that copy of show cause notice retained in the file. He further stated that he did not visit the site and therefore he did not know how far the police station was away from the property in question. He admitted that he never visited the property in this case. He denied the suggestion that he never dealt with the file of Bharon Mandir Samiti, During cross-examination on behalf of A2, this witness stated that Jr. Engineers in his department are supposed to inspect the site in cases of sanction of building permits and unauthorized constructions etc or as directed by the Sr. officers from time to time. He has further stated that he was authorized to give notice for unauthorized constructions.
During cross-examination on behalf of A3, this witness further stated that D Form, completion/NOC was issued in 1988 and at that time he was not working with Building Department and as he had not seen these documents. He admitted that site CBI Vs. Dharamvir Khattar & Ors. Page 33 of 179 34 inspection was conducted in the year 1993 in which some unauthorized construction was detected. Upon specific question, he stated that construction was not processed in the year 1993. He has further admitted that his field staff reported construction on plot no.1 in the year 1993.
Ex PW5/1, Ex PW5/2 and Ex PW5/3 supported by Ex PW3/B are perused though objected as photocopy but nowhere it is challenged that this photocopy has been forged by DDA official. Therefore, in absence of original, in my considered opinion, if document is to be read then no prejudice is going to be caused as this document has been maintained by a government office during the official course of discharge of duties. In this document, similar observations have been made as mentioned in Ex PW3/D2. 15 PW6 stated that during October 2002, he visited Delhi with group of students, teachers and staff and they stayed at BMS Hotel in Karol Bagh. He identified his entry at Sl. No. 14 in the register prescribed under regulation place of Public Entertainment. He has further stated that said entry encircled at point A in his own hand-writing.
CBI Vs. Dharamvir Khattar & Ors. Page 34 of 179 35
During cross-examination on behalf of A1, it is stated by the witness that he cannot deny whether place where he stayed was Dharamshala. He also stated that he had seen board of BMS at the premises but not of BMS Hotel. He did not know the full form of BMS. Therefore, in entire cross-examination it is not challenged to the witness that he did not stay at the place regarding which he deposed.
Testimony of this witness remained unchallenged on behalf of remaining accused persons.
A suggestion was given to the witness that BMS stands for Bhairo Mandir Samiti. Witness further stated that he has seen board of BMS at the premises but not of BMS Hotel. Therefore, this Court observes that BMS displayed at the hotel must be with object to mislead the government authorities. If there was no intention to use the premises as hotel then definitely instead of writing BMS it should be written as Bhairo Mandir Samiti/Society. This Court can take judicial notice of the intention of A1 that BMS was written so that prospective guest/customer should be attracted to the hotel and they may avail the services for the hotel. Bhairo Mandir Samiti was not written so that it should not come in the mind of the CBI Vs. Dharamvir Khattar & Ors. Page 35 of 179 36 customer that it is not a hotel but only a Bhairo Mandir Samiti i.e. religious place or luxuries of hotel would not be available there. Very conveniently it was written as 'BMS' to mislead the government agencies so that it can be used as protection /shield from the government agency i.e. DDA so that a defence can be taken regarding Bhario Mandir Samiti/religious place. This Court is of the view that what stopped A1 to written Bhairo Mandir Society completely. No religious place or temple would write BMS or name of any temple in short form. If it was a temple then it should be written completely i.e. Bhairo Mandir Samiti not 'BMS'. BMS gives an obvious impression that a stranger cannot get impression that BMS means Bhairo Mandir Samiti. Therefore, the testimony of PW6 specifically proved that the place where PW6 stayed was not a religious place but 'BMS' Hotel. Moreover, nowhere it is challenged to this witness by defence that there was symbols relating to a temple visible at the spot i.e. any temple bells, manjiras, dholak etc were visible. Even construction of a temple or dharamshala is always different which gives impression to any passerby about existence of temple. It is also not suggested to the witness that like temple he was not allowed to enter into the temple CBI Vs. Dharamvir Khattar & Ors. Page 36 of 179 37 with his shoes/chappal. Nothing as such has been suggested to this witness. It is observed by this Court as matter of common knowledge, when a person enters into a temple, then he has to remove his shoe/chappal etc. as it is against the tenets of Mandir/temple to enter with wearing shoes/chappal. Moreover, PW6 must aware about Hindu culture that he if would enter into a temple of Bahiro ji then definitely he would not say that he had stayed in a hotel because in hotel anyone can allow to enter with his shoe/chappal. It is further pertinent to mention that almost outside of every temple there are vendros/shops from where devotees purchase items like flowers, garlands, scented sticks, diyas, etc. for worship of the idols. Moreover, in Dharamshala also there are different ambiance and atmosphere which reflect in the mind of the person to be entered inside about its specific identify. Moreover, during cross-examination, he referred his entry at Mark A but defence nowhere puts to this witness that a register was being maintained in Bhairo Mandir Dharamshala/Samiti. The court can take judicial notice of a very fact that every Dharamshala also regularly maintains register of pilgrims stay therein. Nowhere the said document is put to the witness or brought before this Court CBI Vs. Dharamvir Khattar & Ors. Page 37 of 179 38 by A1. Moreover, Dharamshala also issued receipt for donation received from pilgrims who stayed there. Nowhere during entire trial any such receipt book has been brought before this Court. 16 PW-7 stated that in June 2004, he was posted as Assistant Divisional Officer in Prashad Nagar, Fire Station. One day he attended the office of CBI and handed over one file to the CBI in respect of Atithi Guest House, East Patel Nagar, New Delhi. However, this witness was not examined completely therefore, his testimony cannot be relied upon.
17 PW-8 stated that in the year 2002, he was in the employment of M/s Supreme Universe Destination, a travel agency and he used to work as its Manager in the year 2002 alongwith a group of student came Delhi and stayed in BMS Hotel. He has seen photocopy of D-8 which is Mark A. The relevant entry is at Sl. No. 12 in his own hand-writing. He did not know about the activities of BMS Hotel. Testimony of this witness remained unchallenged.
Nothing has been suggested to this witness that he stayed not in any hotel but in a Dharamshala and whatever he had CBI Vs. Dharamvir Khattar & Ors. Page 38 of 179 39 paid not as charges to stay therein but only as donation for which receipt was issued. It is also not suggested to the witness that like temple he was not allowed to enter into the temple with his shoes/chappal. Nothing as such has been suggested to this witness also. It is already observed by this Court hereinabove that as matter of common knowledge, when a person enters into a temple, then he has to remove his shoe/chappal etc. as it is against the tenets/customs of Mandir/temple to enter with wearing shoes/chappal.
18 PW-9 stated that in June 2004, he was posted in Licensing Branch of Delhi Police and in the said Branch and Hotel Section, there was one Sub Inspector and three Head constables beside him. SI Nalini Mahajan was the incharge and the Section was supervised by Inspector Leela Ram. He had handed over two files pertaining to two properties one of which was situated in East Patel Nagar and the other situated in Siri Fort Institutional Area, New Delhi. Both were related to Dharamvir Khattar (A1). He remained posted in the Licensing Branch from May, 2002 to CBI Vs. Dharamvir Khattar & Ors. Page 39 of 179 40 January, 2006.
He was custodian of these two files maintained at the office of DCP Licensing of Delhi Police. File No.I (D-23/1) is Ex PW9/1 and File No.II (D-23/2) is Ex PW9/2. These files were given to CBI on 15.06.04 vide letter Ex PW9/3. It bears signatures of Sh. R. P. Sharma, ACP License at point A. On page 1 of File No. II which is the application received from Dharamvir Khattar and the same is Ex PW9/4. Alongwith application, there are documents in photostat which are copy of the Perpetual Lease Deed dated 17.01.86 executed between BMS and DDA mentioning therein for religious purpose. Same is Ex PW9/4/1.
Site plan of BMS situated at 1, East Patel Nagar, New Delhi. Same is Ex PW9/6. Letter of Fire Department dated 21.8.01 issued by Deputy Chief Fire Officer, Delhi Fire Services with regard to the subject Inspection Report from Fire Safety Point of View for grant of license to run a Guest House/Hotel in the name and style Atithi Guest House situated at premises no. 1, East Patel Nagar, New Delhi. Same is Ex PW9/7. Show cause notice issued vide no. 22466-67 dated 14.9.2001 of DCP Licensing, New Delhi addressed CBI Vs. Dharamvir Khattar & Ors. Page 40 of 179 41 to A1 is Ex PW9/8. Show cause notice issued vide no. 21573-72 dated 30.07.03 to DCP Licensing New Delhi addressed to A1 is Ex PW9/9.
During cross-examination on behalf of A1, it was stated by witness that supervisory power of the Insp. Leela Ram was to sent file to the superior officers through him. He has admitted that he did not have any authority to participate in the process of issuing of license of his own.
He admitted that application moved by A1 which is Ex PW9/4 was for the purpose of grant of license of Dharamshala at 1 East Patel Nagar, behind Kalinidi College, New Delhi. Testimony of this witness remained unchallenged on behalf of other accused persons.
Ex PW9/2 is perused wherein A1 has mentioned his address as 431, Mathura Road, New Delhi where he was seeking to grant license to run a guest house under the name and style of Dharamshala at 1, East Patel Nagar, behind Kalindi College, New Delhi, plot measured as 600 square metere wherein it is specifically mentioned that 8 rooms at first floor, 8 rooms at second floor and 8 rooms at third floor, 8 rooms on fourth floor. It was also mentioned CBI Vs. Dharamvir Khattar & Ors. Page 41 of 179 42 that there was no room at ground floor. It bears the signatures of ACP/Inspector.
Moreover, Ex PW9/4 which is a format of application for grant of license under Entertainment Regulation Act wherein address has mentioned as 1, East Patel Nagar, New Delhi but no where mentioned that it was a religious premises. Therefore, perusal of the entire testimony of PW9 and documents show that A1 has sought license to run an entertainment place not a religious place from the Police Department as well as from Fire Safety Department.
19 PW-10 stated that in June, 2003 that he was working as an officer, Corporation Bank, CGO Complex, Lodhi Road, New Delhi. He proved videography memo in PE No. 5(A)/2003. Same is Ex PW10/1. He has further stated that it was a Mandir (Temple) like situation. The structure was built as ground floor, first floor, second floor, third floor and fourth floor. There was temple structure on the ground floor, on first floor and second floor, there were some rooms and at top floor there were water tanks. He further stated that Ex PW10/1 was prepared at the spot and he CBI Vs. Dharamvir Khattar & Ors. Page 42 of 179 43 signed it. He has further stated that at the time of visiting there was no priest in the temple.
Testimony of this witness remained unchallenged on behalf of other accused.
During entire testimony of PW10 there was no challenge to the testimony of the witness about any presence of priest in the premises. It was not challenged that no videography was taken place in his presence.
20 PW-11 has stated that he joined DDA in November, 96 as Deputy Secretary. He was working as Deputy Director (IL) from July 97 to September 98. He has further stated that Ex PW4/C was issued by Brijender Rai asking report from Smt. Asma Manzer, Director Land and Ms. Asma Manzer in turn had asked report from some JE. The report of JE is encircled at point B and this report was forwarded by AE to Director and then Director marked it to the office of PW1. Signatures of Ms. Asma Manzer is at point E. The endorsement of Ms. Asma Manzer was to the effect that issue a show cause notice and it was endorsed by PW11 to the Dealing Assistant. His signatures at point F. He identified his report has Ex CBI Vs. Dharamvir Khattar & Ors. Page 43 of 179 44 PW4/B which was a correct report prepared on the basis of visit by him and other members of the Team headed by CVO. It is further stated that Vigilance Department had conducted the inspection and they were requested to join the said team.
21 PW-12 stated that he joined DDA on deputation in the year 1994 to July, 99. Initially, he worked as Director Land and thereafter as Director Vigilance. He has further stated that 1, East Patel Nagar Institutional Area has been allotted to BMS but on the site one hotel with 35 rooms with the facilities of AC, TV and attached toilets were found during investigation. Lift facility was also available. At the entrance of the hotel a very small space was available where Bhairon Ji Temple was established.
Both the institutional sites were being misused and the concerned AE and JE have not reported the misuse to the higher authorities for taking action. DD institutional showed ignorance about the misuse being carried out by both the societies. Both the building plans were sanctioned and C and D forms were issued without proper site inspections.
He has proved copy of DO letter dated 4.4.97 CBI Vs. Dharamvir Khattar & Ors. Page 44 of 179 45 addressed to Sh. S. Roy, the then Commissioner Land DDA. The letter is Mark PX PW11/1 and which was exhibited as Ex PW12/1. It bears his signatures at point A. The letter is reminder of letter dated 29.10.92. Subsequent reminders were 5.1.94, 1.9.94 and 20.1.97 regarding construction of hotel on a temple plot institutional area Prasad Nagar for which the action taken report was called but no report was received so far and the Commissioner Land was further requested to look into the matter and expedite the matter.
During cross-examination on behalf of A1, it is suggested to PW12 that Ex PW4/B is the carbon copy and it is a fake document. Suggestion was denied. It is admitted that as per Ex PW4/B there was no mention that any document collected during the survey being annexed to it. It is admitted by the witness that Ex PW4/B was prepared by him while sitting in his office in DDA. It is further stated that he did not prepare any document reflecting that any site plan was prepared regarding subject properties. Tariff card and menu card mentioned in Ex PW4/B would be available in the vigilance file of DDA. He denied the suggestion that he never inspected the subject property.
During cross-examination on behalf of A2, it is stated by CBI Vs. Dharamvir Khattar & Ors. Page 45 of 179 46 the witness that generally AE and JE act upon the report of surveyor. It is admitted that Ex PW12/1 is photocopy and its original is not on record. A3 adopted the cross-examination conducted on behalf of A1.
22 PW-13 stated that in December 2003, he was working as Accounts Officer (Institutional Land) DDA, Vikas Sadan, New Delhi. He proved letter dated 11.12.03 as Ex PW13/1 which bears his signatures at point A. This document contained information desired by CBI in respect of ground rent, interest thereon in respect of institutional plot no. 1 near Kalinidi College. The ground rent in respect of plot no. 1 worked out to Rs.50,408/- and the cost of this land is Rs.1,18,606/- as per record available. Testimony of this witness remained unchallenged on behalf of all the accused persons.
23 PW-14 stated that in August 1988 he was working as AE (Building) DDA, Vikas Sadan, INA. He worked AE since November, 1987. He proved occupancy certificate dated 25.08.1988 as Ex PW14/1. It was issued in favour of BMS, East CBI Vs. Dharamvir Khattar & Ors. Page 46 of 179 47 Patel Nagar, New Delhi. The description of structure mentioned in this document in detail and he proved his signatures at this document at point A. The occupancy certificate issued by him after taking approval from competent authority. It was duly approved by Dy. Director (Building) Sh. P. M. Parate and finally approved by Joint Director (Building). He further proved NOC Report form No. R-7 prepared by A3 as Ex PW14/2. He proved signatures of A3 at point A and his signatures at point B. He further supported that inspection was carried out by A3 and recommended on the basis of that report to the higher ups to take further action in the matter. Witness further stated that he did not make any personal visit for the spot inspection. It was marked by him to Mr. Prate, Dy. Director (Building), DDA. Thereafter, he was again recommended by Dy. Director to Joint Director. He identified signatures of Mr. Parate at point C. It was duly approved by Joint Director at point D and after preparing all the details, it was signed by him.
During cross-examination on behalf of A1, it is stated by the witness that all the signatures identified by him were not made in his presence or noting in the file made by those officers were CBI Vs. Dharamvir Khattar & Ors. Page 47 of 179 48 also not made in his presence. He has further admitted that he did not visit the plot in his tenure in the branch. He admitted that as and when a note is put to the senior officer by a junior officer then it is discretionary to him either to approve or disapprove it. He admitted that order of discussing the matter is given by senior on the file in writing always. There is no serious challenge on behalf of A2 & A3 to the testimony of this witness.
24 PW-15 stated that on 21.06.04, he was working as Chief Manager of Central Accounts Officer, Syndicate Bank, K. G. Marg, New Delhi. He proved record of three original DDs and three photocopies of DD application forms as Ex PW15/1. He has identified his signatures at point A. He further proved original DDs as Ex PW15/2 to Ex PW15/4 though it was objected to mode of proof on behalf of defence. He also proved DD application forms as Ex PW15/5 and Ex PW15/7 though it was also objected to mode of proof on behalf of defence.
During cross-examination on behalf of A1, he has admitted that he has not dealt with this current account where from amount of purchase of DDs was transferred from current account. CBI Vs. Dharamvir Khattar & Ors. Page 48 of 179 49
Ex PW15/10 is perused. It is letter written of SP CBI ACP for enclosing Ex PW15/2 to Ex PW15/7. Ex PW15/2 is perused. It is in favour of BMS and similarly other documents Ex PW15/3, Ex PW15/4 to Ex PW15/7 are in favour of BMS. It is not a case of accused that this amount was not transferred in favour of the BMS. However, nowhere it is suggested that account of BMS was for religious institution for which only donations were remitted by the devotees and not as charges for hotel.
25 PW-16 stated that he has passed Diploma in Civil Engineering in the year 1988. He was doing work of preparing site plan, valuation report and also prepared the inspection report as per the requirement of the parties approaching him for the work. He was registered with MCD and having registration no. S-1106. It is further stated by him that Ex PW9/2 relates to a property known as Dharamshala, 1, East Patel Nagar, Shri Bhairo Ji Mandir Samiti, Delhi. It is further stated by him that he has further shown the photocopy of the structure dated 23.10.99 and stated it was issued by him. He has further stated that site plan is Ex PW9/6 was prepared by him on the asking of Dharamvir Khattar. He visited the CBI Vs. Dharamvir Khattar & Ors. Page 49 of 179 50 site and structure on the ground floor, first floor, second floor, third floor and fourth floor was constructed. Witness identified his signatures on the site plan at point A alongwith rubber stamp. It was constructed as per site plan. He found that rooms in the property were furnished with AC facilities. He did not find religious activity at the site. He did not see approved site plan of the property. He was paid charge of Rs.700/- for preparing the site plan. Ex PW9/6 which was prepared on 30.10.99. Testimony of this witness remained unchallenged by all the accused.
Ex PW9/6 is perused. The witness categorically stated that site plan was prepared on 30.10.1999 and the same is perused wherein ground floor, first floor, second floor, third floor and fourth floor have been shown. The key plan to reach at the site is also mentioned in the site plan. It is specifically stated by the witness that this site plan was prepared on the asking of A1 and there is no challenge to the testimony of this witness. This court observes that the site plan was prepared after inspection of the premises as the witness specifically stated that it had construction as shown in Ex PW9/6. Therefore, on the date of inspection carried out by PW16 of such floors were existing as shown in the site plan Ex PW9/6. CBI Vs. Dharamvir Khattar & Ors. Page 50 of 179 51 26 PW-17 stated that during November 1993, he was posted as photographer in Video Section, DDA, Vikas Sadan. He was posted in the same capacity in 1983 to 2005. On 05.11.93, Sh. R. K. Jairath, Photographic Officer was his immediate boss and who ordered him to cover site alongwith JE Sh. Phogat at Plot no. 1, Patel Nagar where he pasted show cause notice and he had taken photograph of the said building. He proved the register for the period 1991 to 1994 which was maintained by him in the official course of duties. Same is Ex PW17/1. The entry pertaining to visit at Sl. No. 1 dated 5.11.93 of year 1986 which was in his handwriting. Same is under his signatures at point A and signatures of Sh. R. K. Jairath at point B as he acquainted with the signatures of Sh. R. K. Jairath as he worked with him. Said entry is Ex PW17/2. He further identified the photographs Ex PW3/E1 and Ex PW3/E4. Ex PW2/A and its negative Ex PW3/F (five) having signatures on photographs and negatives. He confirmed that these were taken by him. The photographs were instructed to be displayed on the notice put up on the building by JE concerned and while taking the photographs, he put newspaper to confirm date of the fact of such photographs.
CBI Vs. Dharamvir Khattar & Ors. Page 51 of 179 52
During cross-examination on behalf of A1, witness stated that photographs did not display the property identification number. He further stated that he did not enter into the building or made attempt to talk with any occupant of the building personally. He denied the suggestion that he is deposing falsely regarding his visit to any building or taking photographs. Ex PW7/1 was taken from his possession in CBI office. He has further stated that he is resident of Delhi and knew the distance between Pitampura and Prasad Nagar which is approx. 15 kms. He denied the suggestion that he deposed at the instance of CBI and concealed correct and true facts. Testimony of this witness remained unchallenged on behalf of other accused.
27 PW-18 stated that he has joined as Asstt. Director Planning of DDA in the year 1982. He has shown sanction plan of BMS Plot no. 1, near Kalinidi College Institutional Area East Patel Nagar was submitted by the owner of the property i.e. A1 and the name of architect was Sh. T. K. Sarkar. The sanctioned plan contains the ground floor plan, first floor plan, second floor plan, mezzanine floor plan, basement plan and front elevation. The CBI Vs. Dharamvir Khattar & Ors. Page 52 of 179 53 basement contains storage purpose, ground floor is consisting of three rooms, one sitting area, one manager room, accounts room and store, lift, toilets and mezzanine floor is having four stores alongwith provisions of stair case, first floor plan is having provision of library, reading, dispensary doctor/waiting room, yoga ladies room and yoga gents rooms, store, one toilet, two bath and stair case and lift from the ground floor. There is no provision for balcony on first floor in the sanctioned plan. The second floor plan is having provision for prayer hall mediation room - one ladies and another for gents, three stores, one pantry, two toilets. He proved site plan Ex PW18/1 which was sanctioned on 11.03.1986. He has further stated that in this plan there is not sanction for balcony on any of the floor. He has further shown the proposed completion for BMS in plot no. 1, near Kalindi College which bears signatures of A1. The site plan is Ex PW18/2. The plan at the first floor and second floor shows the existence of balcony.
During cross-examination on behalf of A1, it is submitted by the witness that an application was submitted for seeking completion certificate through an architect and also filed with the application, a plan as per the existing building erected by CBI Vs. Dharamvir Khattar & Ors. Page 53 of 179 54 him. He has admitted that there may be some alteration/additions in such completion plan when it is compared with the sanctioned plan. He has further stated that both plans Ex PW18/1 and Ex PW18/2 were not processed by him for the purpose of assessing the completion certificate with regard to the property of BMS which is mentioned in the respective plans. The testimony of this witness remained unchallenged on behalf of A2. During cross-examination on behalf of A3, this witness stated that neither sanction plan nor completion plan is signed by him nor he had dealt with it.
During entire cross-examination, the testimony of the witness remained unchallenged regarding construction as per sanctioned plan contained ground floor, second floor and mezzanine floor and front roof. Witness stated that there was no provision of balcony on any of the floor. However, this part of the testimony of this witness remained unchallenged. 28 PW-19, proved forwarding letter addressed to Shri N.V.N. Krishnan, Insp. CBI vide which he forwarded seven original DD Forms as asked by him. Same is Ex. PW 19/1 bearing his signatures at point A. The original DD application Form dated CBI Vs. Dharamvir Khattar & Ors. Page 54 of 179 55 11.10.2000 for Rs. 10,000/- in favour of BMS was submitted by one S.A. Azam. Same is Ex. PW 19/2. Against this, a DD number 113897 was issued and copy thereof is Ex. PW 19/3.
The original DD application Form dated 31.07.2001 for Rs. 20,000/- in favour of BMS was submitted by one Sayeed Tanzam Ahmed. Same is Ex. PW 19/4. Against this, a DD number 114116 was issued and copy thereof is Ex. PW 19/5.
The original DD application Form dated 06.11.2001 for Rs. 10,000/- in favour of BMS was submitted by one S.A. Azam. Same is Ex. PW 19/6. Against this, a DD number 114029 was issued and copy thereof is Ex. PW 19/7.
The original DD application Form dated 08.01.2002 for Rs. 10,000/- in favour of BMS was submitted by one S.A. Azeem. Same is Ex. PW 19/8. Against this, a DD number 114259 was issued and copy thereof is Ex. PW 19/9.
The original DD application Form dated 06.09.2002 for Rs. 10,000/- in favour of BMS was submitted by one S.A. Azeem. Same is Ex. PW 19/10. Against this, a DD was issued.
The original DD application Form dated 22.11.2002 for Rs. 3,500/- in favour of BMS was submitted by one S.A. Azeem. CBI Vs. Dharamvir Khattar & Ors. Page 55 of 179 56 Same is Ex. PW 19/11. Against this, a DD number 115941 was issued.
The original DD application Form dated 23.10.2002 for Rs. 10,000/- in favour of BMS was submitted by one S.A. Azeem. Same is Ex. PW 19/12. Against this, a DD was issued.
All the above original DD Forms bear the stamp of his branch at point A, where he was working at that time.
During cross-examination on behalf of A1, he stated that his signatures did not appear on Ex PW19/1 to Ex PW19/2. He was not posted in the branch during the period when drafts ExPW19/1 to Ex PW1/2 were prepared. He did not know the full form of BMS.
The entire testimony of this witness shows that the amount was remitted in favour of BMS as document regarding payment as clearly mentioned. Moreover, there is Ex PW20/2 which is original bank draft for payment, which was also realized in favour of BMS. The testimony of this witness remained unchallenged. However, nothing has been suggested to the witnesses that the payment was remitted by the devotee as donation.
CBI Vs. Dharamvir Khattar & Ors. Page 56 of 179 57 29 PW-20 stated that he was directed to conduct part investigation. During part investigation, he recorded the statement of witnesses and seized some documents. He proved seizure memo Ex PW20/1 dated 21.06.2004 signed by him at point A. Documents were seized from Shri R.P. Gupta, Manager of the bank who has also signed this memo at point B. He further seized three DDs which are Ex. PW 15/2, Ex PW 15/4 and Ex. PW 20/2 . He also seized certified copy of three applications Ex. PW 15/5 to Ex PW15/7. He also seized the documents vide memo dated 14.06.2004 consisting two pages and second page was signed by him at point A. Vide this memo he had seized sixteen documents from Mr S.A. Azeem, Prop of M/s. Supreme Universe International at Bangalore. Memo is Ex. PW 20/3 which was also signed by Mr Azeem at point B on its second page. He also examined five witnesses out of which three were from Bangalore and other two witnesses were from Delhi. The examination of said witnesses establishes that the property in dispute were used for commercial purpose.
He further proved production cum seizure memo dated 14.03.2004. Through this seizure memo, 19 documents mentioned CBI Vs. Dharamvir Khattar & Ors. Page 57 of 179 58 therein were seized from S. A. Azim, proprietor of M/s Supreme Universe International. Seizure memo is Ex PW20/4. It bears signatures of S. A. Azim at point B on first and last page. Testimony of this witness remained unchallenged on behalf of all the accused persons.
30 PW-21 stated that on 14.06.2003 he alongwith Inspector H.K. Lal, Inspector S.S. Bhullar, Inspector R.K. Rishi, SI Prem Nath and one independent witness Sh. Kanu Swamy, Officer of Corporation Bank, CGO Complex Branch had visited plot no. 1, East Patel Nagar, Institutional Area for the purpose of videography of the premises.
He reached there at about 13:30 hrs. They found one Sh. Hukam Chand Sharma Manager who was informed about the purpose of visit. He readily agreed for the same. Sh. Hukam Chand Sharma had informed them that the said premises was in the name of Bhairon Mandir Samiti. The premises was consisting of basement, ground floor and four floors consisting of eight rooms on each floor. They also observed small temple of Bhairon at this premises. Sh. Prem Nath the then SI was directed to conduct the CBI Vs. Dharamvir Khattar & Ors. Page 58 of 179 59 videography of the premises. He inserted panasonic cassette in panasonic video camera. The videography was recorded in two cassettes i.e. cassette no. 1 and 2. All the particulars have been mentioned in the videography memo (3 pages) was Ex.PW10/1. It bears his signatures at point B on all three pages. Testimony of this witness remained unchallenged on behalf of all the accused persons.
31 PW-22 stated similar facts in his testimony. He further identified signatures of SI Prem Nath at point B whereas his signatures at point C on all the three pages and signatures of H. K. Lal at point D on Ex PW10/A. He also identified signatures of S. S. Bhullar at point F on Ex PW10/A. During cross-examination on behalf of A1, he denied the suggestion that he was a planted witness of CBI. He stated that he signed Ex.PW10/1 after going through its contents. He also stated that he did not remember whether any board of Bharon Mandir Samiti or Bharon Mandir was mounted on the building. He has further stated that he did not remember whether any disclosure was made before IO by any of the occupant of the building that the CBI Vs. Dharamvir Khattar & Ors. Page 59 of 179 60 premises at the basement is available for public in general, on nominal donation to the Mandir for social functions like marriage, uthala etc. He further stated that contents of Ex.PW10/1 reflect that the premises was used for marriage purposes by general public. He denied that no videography was conducted in his presence. He denied the suggestion that that there was no person by the name of Hukum Chand Sharma, associated with Bharon Mandir Samiti or Bharon Mandir (Temple). Testimony of this witness remained unchallenged on behalf of A2 and A3.
32 PW23 stated that In the year 2003 he was posted as Zonal Inspector (ZI), MCD, Karol Bagh Zone. He handed over a file of Bhairon Mandir Samiti, plot no. 1, East Patel Nagar, near Kalindi College, Karol Bagh Zone (Special Cell) to H.K. Lal, Inspector CBI, New Delhi on the instructions of Alka R. Sharma, Joint Assessor & Collector, Karol Bagh. This file is Ex.PW23/1 (colly.) He proved letter dated 28.11.2003 bearing no. Tax/KBZ/SC/2003-04/522 through which documents handed over to H.K. Lal Inspector, CBI, New Delhi by Alka R. Sharma, Joint Assessor & Collector, Karol Bagh. The letter is Ex.PW23/2. CBI Vs. Dharamvir Khattar & Ors. Page 60 of 179 61
He proved inspection report of AZI (Asstt. Zonal Inspector) dated 30.03.1992 regarding erection of building of Sh. Bhairon Mandir Samiti, plot no. 1, East Patel Nagar, Delhi. AZI inspected the said building and found that the property comprised of basement, ground floor, first floor, second floor, third floor, fourth floor. This building is known as Atithi Hotel. This document is Ex.PW23/3. He also identified the signature of Ajit Singh AZI at point A as he seen him writing and signing during the official course of duties. He proposed rateable value of the said premises amounting to Rs.18,80,820/- which was enhanced by Asstt. Assessor & Collector to Rs.19 lacs.
He has further proved notice u/s 126 of DMC Act dated 30.03.1992 addressed to President, Sh. Bhairon Mandir Samiti (Regd.) for amounting to Rs.19 lacs w.e.f. 01.03.1992 regarding property at plot no. 1, East Patel Nagar, Delhi issued by C.R. Sharma, Asstt. Assessor & Collector, Karol Bagh Zone, MCD. He identified his signatures at point A as he had worked with him. This document is Ex.PW23/4.
He further proved notice u/s 126 of DMC Act dated 28.03.1993 bearing no. 12181 addressed to President, Sh. Bhairon CBI Vs. Dharamvir Khattar & Ors. Page 61 of 179 62 Mandir Samiti (Regd.) (Atithi Hotel) for amounting to Rs.19,98,690/- regarding the property at plot no. 1, East Patel Nagar, Delhi issued by B.R. Malhotra, Deputy Assessor & Collector, Special Cell 4, SP Mukherjee Marg due to addition at ground floor and addition of fifth floor. This document is Ex.PW23/5.
He has further proved page of inspection book serial no. 43407 addressed to President, Sh. Bhairon Mandir Samiti, Plot no. 1, East Patel Nagar. This is regarding addition at ground floor and addition of fifth floor. This document is now Ex.PW23/6. In the inspection report that additional portions are also being used as commercial.
He has further stated that it is the practice in MCD that file relating to RV (Rateable Value) above Rs.10 lacs forwarded to Special Cell, Minto Road, HQ, Delhi. So this file was also sent to the Special Cell.
He has proved assessment order signed on 10.01.1995 bearing no. 8265. This letter is signed by B.L. Kardam, Dy. Assessor & Collector, C No. X. This order is addressed to President, Sh. Bhairon Mandir Samiti regarding Plot no. 1, East Patel Nagar near Kalindi College, New Delhi. This document is CBI Vs. Dharamvir Khattar & Ors. Page 62 of 179 63 Ex.PW23/7.
He has proved exparte order dated 29.02.1996 by B.C. Meena, Joint Assessor & Collector, SA-II addressed to President, Sh. Bhairon Mandir Samiti regarding Plot no. 1, East Patel Nagar near Kalindi College. This document is Ex.PW23/8 (internal page no. 38).
He has proved letter of President, Sh. Bhairon Mandir Samiti (Regd.), plot no. 1 East Patel Nagar, near Kalindi College, New Delhi requesting to reconsider his case and grant him exemption from house tax of property at plot no. 1, East Patel Nagar, near Kalindi College, New Delhi. This document is Ex.PW23/9 (colly. two pages) At page 70 of Ex.PW23/1 (colly.) which is assessment order addressed to Sh. Bhairon Mandir Samiti, plot no. 1 East Patel Nagar, dated 23.03.1996. This assessment order was issued by B.C. Meena, Joint Assessor and Collector/SAU-II. Through this order RV was decided as Rs.2,34,000/- (exempted) and Rs.2,34,000/- (non exempted) w.e.f. 01.04.1993. Due to adoption of new assessment bye-laws from 01.04.1994 the standard deduction has to be allowed @ 15% instead of 10% earlier. CBI Vs. Dharamvir Khattar & Ors. Page 63 of 179 64 Accordingly w.e.f. 01.04.1994 the RV are decided as 1) Rs.2,21,000/- (exempted) and 2) Rs.2,21,000/- (non exempted). The reason is also mentioned for the exemption in the said order. This document is Ex.PW23/10.
At page 80 of Ex.PW23/1 (colly.) which is inspection report dated 21.03.1998 regarding the property of Sh. Bhairon Ji Mandir, Plot no. 1, East Patel Nagar, near Kalindi College addressed to the President Sh. Bhairon Ji Mandir Samiti. As per this order RV is proposed of Rs.20 Lacs due to change of use in the property. This document is Ex.PW23/11.
At page 87 of Ex.PW23/1 which is assessment order addressed to President, Sh. Bhairon Mandir Samiti, East Patel Nagar, near Kalindi College by Sangeeta Kampani, Joint Assessor & Collector. This is an exparte order through which Joint Assessor & Collector confirmed the proposed RV of Rs.20 Lac w.e.f. 01.04.1997 due to non submission of required documents. This document is Ex.PW23/12. It is also mentioned in this order billing be made as per use of the property.
At page 89 of file Ex.PW23/1(collectively) which is a transfer memo dated 12.11.2001 bearing no.
CBI Vs. Dharamvir Khattar & Ors. Page 64 of 179 65 Tax/HQ/RKP/2001/439 regarding transfer of assessment file/demand in respect of property no.1, East Patel Nagar, near Kalindi College, New Delhi. As per the document recorded owner Sh. Bhairon Mandir, plot no.1, East Patel Nagar, Near Kalindi College, New Delhi. This document show the rateable value of Rs. 20 lac w.e.f. 1.4.1997 and dues shows Rs.32,81,872/-. This document is Ex. PW23/13.
At page 90 of file Ex.PW23/1(collectively) which is demand notice dated 9.8.2002 bearing ledger folio no.50/7053 addressed to Sh. Bhairon Mandir, plot no.1, East Patel Nagar, Near Kalindi College, New Delhi. This document shows the tax of Rs. 32,81,872/-. It bears the signature of K. Vijayan alongwith seal at point A. He identify his signature as he had worked with him and seen him writing and signing. This document is Ex. PW23/14.
At page 91 of file Ex.PW23/1(collectively) which is a note sheet of MCD which shows that Joint A&C marked filed to AZI for ID action i.e. increase, decrease action for pending proposal w.e.f. 1.4.97 is decided and AZI is directed to take ID action and send the bill. Thereafter AZI marked to Bill Clerk for the same. After reading the note sheet dated 9.10. This document is CBI Vs. Dharamvir Khattar & Ors. Page 65 of 179 66 Ex.PW23/15, wherein there is a mention of 'may kindly see the said assessment file of Bhairon Mandir Samiti in East Patel Nagar'. He inspected the property. There is one small room which owner is using as Mandir. This is a five storey building. The owner is running a hotel at site.
He has further stated that Mandir is exempted for the levy of property tax.
At page 80 of file Ex.PW23/1 (collectively) which is an inspection report dated 21.3.98 bearing no. 54531 already Ex.PW23/11. This report shows one room measuring 12 x 10 ft. at ground floor and commercial 2130 sq. ft. and idol of Sh. Bhairon Ji covered with glass.
During cross-examination on behalf of A1 and A2, this witness stated that Ex PW23/2 to Ex PW23/15 were not drawn or prepared or signed or issued in his presence. He has further stated that none of the notices is received or signed in his presence.
In cross-examination on behalf of A3, witness admitted that since additional construction was noted in the building plot no.1, East Patel Nagar, Kalindi College Road, Parsad Nagar therefore, the notice was issued on 29.3.1993. He has further CBI Vs. Dharamvir Khattar & Ors. Page 66 of 179 67 stated that due to the addition in construction it was proposed to increase the rateable value for house tax vide notice Ex.PW23/5 w.e.f. 1.4.93. He further admitted that vide decision taken by Jt. Assessor & Collector already Ex.PW23/10 the date of completion of building was taken as 1.4.93. He has further stated that as per file Ex.PW23/1 (collectively) prior to this notice dated 30.3.1992 was issued.
33 PW-24 stated that on 14.06.2003 he was posted as Sub Inspector to assist Sh. Umesh Vashisht, Inspector for videography of premises of Plot No. 1, East Patel Nagar, New Delhi, in connection in PE No. 5A/2003. In this regard, a team was constituted which also included an independent witness as Sh. Kanu Swami from Corporation Bank of India, CGO Complex, New Delhi. He further stated that premises was videographed by him and videograph memo was prepared at the spot. He further stated that videograph memo bears his signatures at point A and the independent witness also signed videography memo. He further proved that Sh. H. C. Sharma also signed recovery memo on all the pages at point X in token of receipt of videography memo. CBI Vs. Dharamvir Khattar & Ors. Page 67 of 179 68
During cross-examination on behalf of A1, this witness admitted that no departure entry was made on 14.06.2003. He further stated that it was not compulsory to make departure entry. He could not say whether there was any board of any Dharamshala or Mandir at plot no. 1, East Patel Nagar, New Delhi. He denied the suggestion that he has made false deposition at the behest of CBI. He further denied the suggestion that he never conducted any videography at the spot or that he had submitted fabricated cassettes.
Testimony of this witness remained unchallenged on behalf of A2 and A3.
34 PW-25 stated that in June 2004, he was posted as DSP in CBI, ACB, New Delhi on the instructions of the then SP Sh. S. C. Tiwari. He rendered his assistance in investigation of this case by recording statements of four witnesses namely Sh. Brijender Rai, Sh. Hari Kishan, Sh. Rajinder Prasad & Sh. R. S.Yadav in the month of 2004.
During cross-examination on behalf of A1, this witness admitted that he recorded aforementioned statement of the CBI Vs. Dharamvir Khattar & Ors. Page 68 of 179 69 witnesses. He denied the suggestion that statement under Section 161 CrPC was manipulated.
During cross-examination on behalf of A2, he stated that he did not check the veracity of alleged statement recorded under Section 161 CrPC by him or referred by the witness. Thereafter, counsel for A2 adopted the cross-examination conducted by A1.
Testimony of this witness remained unchallenged on behalf of A3.
35 PW26 stated that on 30.07.05, he was posted as Vice Chairman, DDA, Vikas Sadan, New Delhi. A request was received from CBI alongwith FIR and statement of witnesses and other documents to grant sanction under Section 19 of Prevention of Corruption Act, 1988 to prosecute A2 and A3. He further stated that he had gone through the documents and applied his mind and after examining the facts and circumstances of the case, he was of the view that A2 and A3 should be prosecuted in the present case. Being competent authority, he accorded sanction for their prosecution under Section 19 of P. C. Act. He proved sanction order bearing no. F-25(8)03/Vig.ACB dated 30.07.05 running into CBI Vs. Dharamvir Khattar & Ors. Page 69 of 179 70 four pages. Same is Ex PW26/A (colly four pages) for A3. He further proved sanction order bearing no. F-25(8)03/Vig.ACB dated 30.07.05 running into four pages. Same is Ex PW26/B (colly four pages) for A2.
Testimony of this witness remained unchallenged on behalf of A1.
During cross-examination on behalf of A2, this witness stated that it was part of duty of JE (IL) to check unauthorized construction. He denied the suggestion that he was not competent authority to accord sanction Ex PW26/B or he had accorded sanction without being authorized to do so. He further denied the suggestion that he put the date on Ex PW26/B at the direction of CBI at the later stage.
During cross-examination on behalf of A3, this witness stated that he could precisely state what documents were received in the file at the time of presentation of file at the time of sanction. He further stated that he perused the documents, statement of witnesses relating to the case which were placed before him. Upon specific question, he further stated that present case pertains to sanction for prosecution against the accused under the CBI Vs. Dharamvir Khattar & Ors. Page 70 of 179 71 Prevention of Corruption Act, 1988. He denied the suggestion that without looking into complete documents, relevant documents, application of mind in a mechanical manner, accorded the sanction for prosecution of A2. It is specifically admitted by the witness that the sanction for prosecution against the accused persons i.e. A2 and A3 under Prevention of Corruption Act, 1988. 36 PW-27 stated that in the year 2003-2004, he was posted as Deputy Director, Institutional Land, DDA. He has further stated that Master Plan 2001 which defines the various categories of lands and usage it can put into. The Master Plan is now Ex PW27/1 (colly).
He further stated that the word "Religious purpose" is given in Chapter 4 (Development Code Schedule and Annexures) at page no. 87 in the Master Plan 2001. It is further submitted that according to Master Plan 2001, the words "Religious Premises"
have been defined as "A premises dedicated to accommodation and service of God or other objects of religious nature. It may have different nomenclature in different religions like Temple, Mosque, Church, etc." The same is Mark X encircled in red. The word CBI Vs. Dharamvir Khattar & Ors. Page 71 of 179 72 "Dharamshala" has been defined in the same chapter at clause 009 (page no. 82) of the Master Plan 2001 as:
"A premises providing temporary accommodation for short duration on no profit basis." The same is Mark Y encircled in red.
It is further stated that the word "Religious Premises/Building" is given in Chapter 2 (Development Code) at page no. 60 in the Master Plan 2001 and defines the various use activities permitted in use premises as below:
1. Temple
2. Mosque
3. Church
4. Gurudwara
5. Synagogue
6. Ashram
7. Bathing Ghat
8. Gaushala
9. Dargah
10. Charitable Dispensary and Library The same is Mark Z encircled in red.
It is further stated that as per the Master Plan 2001, the CBI Vs. Dharamvir Khattar & Ors. Page 72 of 179 73 use activity of Dharamshala is not permitted in religious premises/building.
He has further stated that Perpetual Lease Deed in the name of Shri Bharoji Mandir Samiti through President Sh.
Dharamvir S/o Hari Chand. Same is Ex PW9/4/1. According to the Lease Deed, the Lessee Bharoji Mandir Samiti has been allotted a plot ad measuring 600 square meters near Kalindi College for "Religious Purpose". The religious purpose is indicated at page no.
4 of the Lease Deed. Same is at point A encircled in red.
He has further proved file bearing no. F8(25)84/IL/PT.
In this file there is a note dated 17.06.1998 regarding issuance of show cause notice to Bharoji Mandir Samiti for violation of Lease conditions. It bears the signatures of Director (Lands). The same is Ex PW27/2.
He has proved noting dated 25.06.1998. As per this noting, no response was received to the final show cause notice and file was processed for taking a decision for cancellation/ determination of lease. The same is Ex PW27/3. The observations of Vigilance Officer were agreed by Director (Land) who also recommended determination of lease. The recommendation of CBI Vs. Dharamvir Khattar & Ors. Page 73 of 179 74 Director (Land) is Mark PW27/X (running into two pages).
He has proved photocopy of noting dated 24.08.1998 of Sh. P. K. Ghosh, the then Vice Chairman, DDA. Through this note, the file was submitted to Hon'ble LG for determination of lease.
Same is Mark 27/Y (running into two sheets).
He has proved noting dated 01.09.1998 vide which cancellation letter has been issued. The same is Ex PW27/4.
He has further proved noting which shows that Bharo Mandir Samiti did not hand back the possession of the plot.
According to which then matter was referred to COD for eviction proceedings, for which approval was accorded by Director (Land) on 10.09.1998. Same is Ex PW27/5.
He has further proved note of Sr. Law Officer (Estates) dated 14.07.2003 as per which the Court of Estate Officer-I has passed eviction order against Bhairoji Mandir Samiti in respect of Plot No. 1, East Patel Nagar, New Delhi on account of misuse of institutional land. Same is Ex PW27/6.
He has further proved photocopy of his note dated 29.07.2003 vide which file was processed to Land Management branch for taking back the possession of land in contention and CBI Vs. Dharamvir Khattar & Ors. Page 74 of 179 75 also sealing the premises. Same is Mark PW27/Z. It bears impression of his signatures at point A. According to witness, thereafter the file was sent to Land Management Branch for further necessary action regarding sealing of premises/taking back possession.
He has proved photocopy of note of Deputy Director, Land Management dated 30.07.2003 as per which sealing was done and higher authorities informed about that. The same is Mark PW27/Z1.
He has proved note dated 11.09.2003 of Deputy Director, Land Management. As per this note, the sealing was done on 30.07.2003. Same is Ex PW27/7.
During cross-examination on behalf of A1, this witness stated that he dealt with Ex PW9/4/1. CBI had recorded his statement under Section 161 CrPC. He has further stated that he got no comments on the proposition with respect to Institutional land allotted by DDA during the period 1975-98, the master plan of 2001 would apply or not. He has further admitted that whenever an institutional land is allotted, the allotment is done on certain terms and conditions and in case of violation of those terms and CBI Vs. Dharamvir Khattar & Ors. Page 75 of 179 76 conditions by the allottee, the allotment can be cancelled and possession can be taken back. He has further admitted that before the allotment is cancelled, possession is taken back, a show cause notice is served on the allottee.
He further stated during the same cross-examination that premises bearing no. plot no. 1, East Patel Nagar/Prasad Nagar, Institutional Area was sealed vide Mark PW27/Z1. He further stated that proceedings under the Public Premises (Eviction of unauthorized Occupants) Act were also initiated for seeking eviction of occupant with respect to this property in the Court of Ld. Estate Officer, DDA. He denied the suggestion that he was a planted witness or knowingly concealing the correct facts from the Court.
During cross-examination on behalf of A2, this witness stated that he had deposed as per material available on record as he has no personal knowledge of the case. He further stated that he could comment on the contents of the letter as they were taken care by him during the discharge of his official duties as he was not a witness to incident. AE (IL) while preparing note dated 11.06.98 has perused the report of JE dated 09.06.98. Testimony of this CBI Vs. Dharamvir Khattar & Ors. Page 76 of 179 77 witness remained unchallenged on behalf of A3.
PW27 specifically defined as per master plan 2001 what is meant for religious purpose. However, no document has been brought or referred by any of the accused to establish that the premises was being used for religious purpose. Here this Court refers Section 103 of Indian Evidence Act:-
"103. Burden of proof as to particular fact - The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
This Court further refers illustration to this Section as:
"A prosecutes B for theft, and wishes the Court to believe that B admitted the theft of C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it."
Therefore, if the premises was being used for religious purpose, then burden to prove such particular use was upon the accused persons not upon CBI. The Court further refers Section 106 of Indian Evidence Act:
CBI Vs. Dharamvir Khattar & Ors. Page 77 of 179 78
"106. Burden of proving fact especially within knowledge- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
Here this Court further refers illustration (b) to this Section 106 of Indian Evidence Act.
"b. A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
Therefore, if documents to establish the fact the premises was being used for religious purpose or as Dharamshala then definitely such documents like register to be maintained for Dharamshala, register to be maintained for payment of wages to employees of Dharamshala, registers/files of the employees of their appointment of workers for Dharamshala, donation register received from devotees, expenditure incurred being Dharamshala, appointment letter for particular Pandit jit/ Pujari for Bhairo Mandir. Witnesses to prove that they were attending rituals that took place in mandir i.e. daily Aarti etc. and festival attended by the devotees etc. is upon such person. Therefore, the joint reading of Section 103 and 106 of Indian Evidence Act and illustrations to said CBI Vs. Dharamvir Khattar & Ors. Page 78 of 179 79 sections referred herein puts a duty upon the accused persons especially A1 to prove that premises was being used as Dharamshala or Bhairo Mandir as such facts were within the special knowledge of A1 who supposed to maintain such register. Moreover, a Dharamshala is also to maintain register wherein devotees entry and exit have been mentioned and if such registers would have been supplied to CBI then definitely CBI could verify about those people who stayed at plot no. 1, East Patel Nagar, New Delhi not as guest/customers but as pilgrims to the said place. 37 PW-28 stated that he was posted as SI CBI ACB, during the year 2000 onward. He remained posted there till 2009. During the said period, he was worked with H. K. Lal, the then Inspector CBI, ACB. Witness identify signatures of Sh. H. K. Lal at point A & B on charge sheet Ex PW28/A. He also identified signatures of Sh. S.C. Tiwari, the then SP CBI ACB Delhi at point X and seal at point Y as he worked under him as he was his superior during service and seen him signing during official course of duties.
He has further identified signatures of Sh. H. K. Lal at point A on statement U/s 161 Cr.P.C. of P.S. Uttarwar. Said CBI Vs. Dharamvir Khattar & Ors. Page 79 of 179 80 statement is Ex. PW-28/B. He has further identified signatures of Sh. H. K. Lal at point A on statement U/s 161 Cr.P.C. of R.P. Gola. Said statement is Ex. PW-28/C. He has further identified signatures of Sh. H. K. Lal at point A on statement U/s 161 Cr.P.C. of Tapan Mandal. Said statement is Ex. PW-28/D. He has further identified signatures of Sh. H. K. Lal at point A on statement U/s 161 Cr.P.C. of Akhilesh Kumar Barnwal. Said statement is Ex. PW-28/E. He has further identified signatures of Sh. H. K. Lal at point A on statement U/s 161 Cr.P.C. of Avdesh Kumar. Said statement is Ex. PW-28/F. He has further identified signatures of Sh. H. K. Lal at point A on statement U/s 161 Cr.P.C. of J. B. Sharma. Said statement is Ex. PW-28/G. He further proved signatures of the then SP at point A at two places on FIR is Ex. PW-28/H. He identify the signatures of the then SP as he worked under him and seen him signing and writing during the course of official duties.
CBI Vs. Dharamvir Khattar & Ors. Page 80 of 179 81
This witness was cross-examined on behalf of A1 and stated that he had worked with Sh. H. K. LaL, the then Inspector CBI, ACB for 3-4 years. During cross-examination, he was confronted with letter dated Nil bearing signatures of H. K. Lal at point X. Said document is Ex PW28/DX1. He further admitted that the document which he identified bearing signatures of Late Sh. H. K. Lal were not executed in his presence.
The testimony of this witness remained unchallenged on behalf of A2 & A3. Both adopted cross-examination of A1 for the said witness.
38 PW 29 stated that he was looking after the arrangement of booking of hotels for guests. He knew Mr. Syed Abdul Azeem and also acquainted with his handwriting. PW29 acquainted with the handwriting of Mr. Syed Abdul Azeem as he received the letter pertaining to booking of the hotel and the same is written and signed by Mr. Syed Abdul Azeem and whenever he used to write a letter then PW29 got confirmation then he confirmed the same through hand written letter/mail.
He identified signatures of of Mr. Syed Abdul Azeem at CBI Vs. Dharamvir Khattar & Ors. Page 81 of 179 82 point B on seizure memo dated 14.06.04 which is Ex. PW-20/3; at point X on letter on the letter head of BMS dated 11.10.2000. Same is Ex. PW-29/1. He further proved following documents:-
(a). Counter foil of pay-in-slip of Syndicate Bank dated 01.10.01 for DD for Rs. 40,000/- in the name of BMS, the same is Ex. PW-20/5 and mentioned at Sr. No.1 in seizure memo Ex. PW-20/3.
(b). DD no. 849872 dated 01.10.01 for Rs. 40,000/- in the name of BMS, which is already Ex. PW-15/5 and mentioned at Sr. NO. 2 in seizure memo Ex. PW-20/3.
(c). Photocopy of pay in slip dated 04.09.01 for Rs. 10,030/- including commission charge of Rs. 30/- the same is Ex. PW-15/5 and mentioned at Sr. No. 3 in seizure memo Ex. PW-29/2. Witness identified the impression of signatures of Sh. S.A. Azeem at point A.
(d). Photocopy of DD no. 113897 dated 11.10.00 for Rs. 10,000/- in the name of BMS, which is already Ex. PW-19/3 and mentioned at Sr. No. 4 in seizure memo Ex. PW-20/3.
(e). Counter foil of pay in slip of BMS dated 31.07.01 CBI Vs. Dharamvir Khattar & Ors. Page 82 of 179 83 for purchasing DD of Rs. 20,000/- in favour of BMS, which is already Ex. PW-19/5 and mentioned at Sr. No. 5 in seizure memo Ex. PW-20/3.
(f). Photocopy of DD no. 114116 dated 31.07.01 for Rs. 20,000/- in the name of BMS which is already Ex. PW-19/5 and mentioned at Sr. no. 6 in seizure memo Ex. PW-20/3.
(g). Counter foil of pay in slip of BMS dated 06.11.01 for purchasing DD of Rs. 10,000/- in favour of BMS and the same is in the handwriting of S.A. Azeem and same is Ex. PW-29/3 and mentioned at Sr. No. 7 in seizure memo Ex. PW-20/3.
(h). Photocopy of DD no. 114209 dated 06.11.01 for Rs. 10,000/- in the name of BMS which is already Ex. PW-19/7 and mentioned at Sr. No. 8 in seizure memo Ex. PW-20/3.
(i). Counter foil of pay in slip dated 07.09.01 for purchasing DD of Rs. 5,000/- in favour of BMS and the same is in the handwriting of S.A. Azeem which is Ex. PW-29/4 and mentioned at Sr. No. 9 in seizure memo CBI Vs. Dharamvir Khattar & Ors. Page 83 of 179 84 Ex. PW-20/3.
(j). Counter foil of pay in slip dated 08.01.02 for purchasing DD of Rs. 10,000/- in favour of BMS and witness stated that the same is in the handwriting of S.A. Azeem and is Ex. PW-29/5 and mentioned at Sr. No. 11 in seizure memo Ex. PW-20/3.
(k). Photocopy of DD no. 114259 dated 08.01.02 for Rs. 10,000/- is in the name of BMS which is Ex. PW- 19/9 and mentioned at Sr. No. 12 in seizure memo Ex. PW-20/3.
(l). Counter foil of pay in slip dated 06.08.02 for purchasing DD of Rs. 10,000/- in favour of BMS and the same is in the handwriting of S.A. Azeem and is Ex. PW-29/6 and mentioned at Sr. No. 13 in seizure memo Ex. PW-20/3.
(m). Counter foil of pay in slip dated 22.11.02 for purchasing DD of Rs. 3,500/- in favour of BMS and the same is in the handwriting of S.A. Azeem and is Ex. PW-29/7 and mention at Sr. No. 11 in seizure memo Ex. PW-20/3.
CBI Vs. Dharamvir Khattar & Ors. Page 84 of 179 85
(n). Application form dated 11.10.2000 for the purchase DD of Rs. 10,000/- in favour of BMS. The same is in the handwriting of S.A. Azeem and bears his signatures at point A. The same is Ex. PW-19/2.
(o). Application form dated 06.11.2001 for the purchase DD of Rs. 10,000/- in favour of BMS. The same is in the handwriting of S.A. Azeem and his signatures are at point A. The same is Ex. PW-19/6.
(p). Application form dated 08.01.2002 for the purchase DD of Rs. 10,000/- in favour of BMS. The same is in the handwriting of S.A. Azeem and his signatures are at point A. The same is Ex. PW-19/8.
(q). Application form dated 06.09.2002 for the purchase DD of Rs. 10,000/- in favour of BMS. The same is in the handwriting of S.A. Azeem and his signatures are at point A. The same is Ex. PW-19/10.
(r). Application form dated 23.10.2002 for the purchase DD of Rs. 10,000/- in favour of BMS. The same is in the handwriting of S.A. Azeem and his signatures are at point A. The same is Ex. PW-19/12. CBI Vs. Dharamvir Khattar & Ors. Page 85 of 179 86
(s). Application form dated 22.11.2002 for the purchase DD of Rs. 3500/- in favour of BMS. The same is in the handwriting of S.A. Azeem and his signatures are at point A. The same is Ex. PW-19/11.
He further stated that production cum seizure memo dated 14.06.2004 Ex. PW-20/4 bears signatures of S.A. Azeem at point B on first and fourth page of Ex. PW-20/4.
During cross-examination on behalf of A1, it is stated by this witness that he was not a travel agent. He did not operate with any name and style. He stated that he had received a telephone call from Sh. Upadhyay from the Court and received a call from Sh. S.A. Azeem on mobile phone No. 9350206060. He further stated that there is another hotel Carat 87 at Naiwalan Karol Bagh, New Delhi, address of which he did not know. He also did not know the name of the owner of the hotel. He stated that Mr. Uttam is the lease holder. 118 guests were booked by this witness in this hotel. He stated that Ex PW29/DX1 was prepared by him for record. He further stated that it did not contain the name of Mr. S.A. Azeem or his address or his phone number. He stated the he is preparing such kind of records for the last 3-4 years. He further stated the he CBI Vs. Dharamvir Khattar & Ors. Page 86 of 179 87 used to keep the record till the time of schedule of booking and thereafter weeded out, the record pertaining to bookings already over and keeping the one which are pending. He further stated that Mr. S.A. Azeem must be a person of about 70 years of age.
He admitted that if the record from the hotel Carat 87 at Naiwalan Karol Bagh, New Delhi, is brought, his name would not be available. He further admitted that the documents shown to him in the court i.e. Ex. PW-20/3, Ex. PW-29/1, Ex. PW-20/5, Ex. PW- 29/2, Ex. PW-19/3, Ex. PW-19/5, Ex. PW-19/7, Ex. PW-29/3, Ex. PW-29/4, Ex. PW-29/2, Ex. PW-19/6, Ex. PW-19/8 and other documents related to the period when he did not know Sh. S.A. Azeem.
He stated that he knew four persons, who work in the office of Sh. S.A. Azeem, namely Mr. Sameer, Mr. Ashfaq, Mr. Shahzad and Ms. Anjum. However, he could not identify their signatures and handwriting. He further stated that all letters were in the handwriting of Sh. S.A. Azeem and none of those letters were in the handwriting of these four persons.
He further stated that he has not seen Mr. S.A. Azeem in the state of illness but he got knowledge about his illness through CBI Vs. Dharamvir Khattar & Ors. Page 87 of 179 88 his son who used to visit Delhi. He stated that Mr. S.A. Azeem has four sons and one daughter and two of his sons visit Delhi frequently. He further stated that he did not have the visiting cards of either of his son.
He stated that first time, he had worked for Mr. S.A. Azeem in the year 2012. He had never visited his house. He stated that he received some letter below which name S.A. Azeem was written therefore, he stated that it was written by Mr. S.A. Azeem. Between 2012 to 2015, he had made 70-80 times booking for Mr. S.A. Azeem. He further stated that for these 70-80 bookings, he received commission in cash. There was no cheque for such commission issued by Mr. S.A. Azeem. He had sent the amount of such commission on line. He denied the suggestion that he was a planted witness of CBI and therefore, he had appeared before this Court without any summons. There is no letter of authority given by Mr. S.A. Azeem to appear and depose before this Court either by mail or otherwise. He further disclosed e-mail i.d. of Mr. S.A. Azeem is [email protected]. He further stated that in Ex. PW-29/DX1, the handwritten portion is not related to Mr. S.A. Azeem. It is his personal note being quotation for some other CBI Vs. Dharamvir Khattar & Ors. Page 88 of 179 89 client.
He further stated that he engaged in the business of Taxis and Tempo, other tourist vehicles alongwith hotel booking. He is having two e-mail Ids and one E-mail I.D. is reflected on Ex. PW-29/DX1. He further stated that he has no hotel but he provide room to stay in hotels. He further stated that he never made any booking in any hotel by issuing a letter to his client. He denied the suggestion that he has falsely identified the documents or that he has stated falsely about the authorship of writing and signature there. Testimony of this witness remained unchallenged on behalf of A2 and A3.
This witness referred about one person namely Mr. S. A. Azeem who made payments through demand drafts in favour of BMS. The payments referred during the testimony of PW29 were made to BMS. It only happens when the said premises were used as hotel. Morever, the testimony of PW29 further refers that he was not working for BMS but also for various other hotels like Apra Inn, Hotel Carat 87. Nowhere it is challenged to the witness that payments referred to by PW29 during his cross-examination were not remitted to BMS. Moreover, it is also not challenged to this CBI Vs. Dharamvir Khattar & Ors. Page 89 of 179 90 witness that all such payments were made for the religious purpose i.e. as donation and not as charges. This Court further observes that PW29 operates as an agent for hotel booking in the area and around where BMS is situated and this witness is aware about hotel business being operated in the said area. Nothing has been suggested to this witness that BMS is not a hotel but a temple where entry is not allowed with shoes/chappal. 39 Statements of all the accused persons u/s 313 Cr.P.C. is also perused.
Accused no.1 in his statement has admitted that in the year 1993-94, PW3 Sukhbir Phogat was posted as Jr. Engineer (Civil) in Institutional Building section and was permitted to submit inspection reports. He has further stated in his statement that three floors were constructed including the basement, ground floor, first floor and second floor. He has further admitted that the plot i.e. 1, East Patel Nagar Institutional area, Prasad Nagar near Kalandi College, Delhi was in his possession and was allotted for religious purposes by the DDA. He further stated in the said statement that the construction was carried out according to the sanctioned plan. CBI Vs. Dharamvir Khattar & Ors. Page 90 of 179 91 He further stated that there is no BMS Hotel but simply a Dharmshala.
He further accepted the testimony of PW9 who deposed that site plan of Bhairo Mandir Samiti (Regd.) situated at 1, East Patel Nagar, New Delhi as Ex.PW9/6 and the same was annexed with Ex.PW9/4 and the Licensing Authority Department had not checked the genuineness of the site plan. He has further admitted that he had never met with accused no.3 as he met him only in the court in this case. He has further accepted the testimony of PW14 who deposed that the occupation certificate issued in favour of Bhaironji Mandir Samiti, 1, East Patel Nagar, New Delhi is Ex.PW14/1. This witness duly identified the signature of Sh. Parate, Deputy Director (Building) and was finally approved by Joint Director (Building). He has further accepted the testimony of PW16 who deposed that Ex.PW9/2A relates to the property known as Dharmshala 1, East Patel Nagar, Shri Bhaironji Mandir Samiti, Delhi and has been shown structural certificate dated 30.10.99 which was issued by him and was signed by him. He has further stated that there is a full fledged temple on the ground floor and there were four floors in total which were constructed up to 4th floor CBI Vs. Dharamvir Khattar & Ors. Page 91 of 179 92 at different stages finally in the year 1993. He denied about the existence of Atithi Hotel at the site. He has also denied any commercial use of the building and the building was strictly used as Dharmshala. He has further stated that the Master Plan 2001 is not applicable in this case as the allotment in the present case was of the year 1984 and the society had applied in the prescribed form for allotment of institutional land for the purpose of construction of Dharmshala and temple. He has further admitted that the testimony of PW27 who deposed that by note dated 11.09.2003 of Deputy Director,Land Management sealing was done on 30.07.2003 Ex PW 27/7. He further stated that the building was de-sealed on the directions of Hon'ble High Court of Delhi.
40 In defence, accused no.1 examined DW1 Inspector Arjun Singh, in Charge,Malkhana CBI/ACB, New Delhi. He has stated that he had brought complete vigilance file available in the Malkhana of CBI. He has produced two file folders of DDA, one of them bearing F-27(176)98/AVO 7 and other bearing no. F- 27(154)97/2/AVO 6. Both these files were collectively Ex.DW1/A (colly). He further stated that the documents consisting of file no. CBI Vs. Dharamvir Khattar & Ors. Page 92 of 179 93 F(8)25/84-IL, F(8)25/8/4Pt and F-17(2)/2004/LMC/93 recording reflecting compliance of order dated 05.11.07 of this court. He further stated that the original assessment file of House Tax mentioned at 4(e) is not available in Malkhana, CBI, therefore, he could not produce the same. He also brought the malkhana register pertaining to the period 1998-2011. It contains the entry pertaining to deposit of documents in case RC No. 39/A/2003. The photocopy of the relevant page is Ex.DW1/B(colly 2 pages). As per register, the entries are, case number M.R. Number, IO name, date of entry, remarks and location. The column "M.R. number" reflects the serial number of the seizure memo received in Malkhana. He also proved the photocopy of these pages Ex.DW1/C (colly) and Ex.DW1/D(colly). During the course of examination, this witness stated that he joined as Malkhana incharge in 2014. He also admitted that he has not made any of the entries in the Malkhana register brought by him in the court. He also admitted that he did not know whether document which are mentioned in the malkhana registers Ex.DW1/B to Ex.DW1/D are/were retained by the concerned IO or returned to the party concerned. CBI Vs. Dharamvir Khattar & Ors. Page 93 of 179 94 41 DW2 stated that he was working as Assistant in Personal Branch-I of DDA. He had brought the entire transfer file of accused no.3. It contains the transfer order dated 05.04.1989 reflecting the transfer of A3 at serial no. 10. The said copy of the transfer order is Ex.DW2/1. He further stated that as per file noting, accused no. 3 was relieved vide order daed 30.05.1989 available in the said file maintained in the office which is Ex.DW2/2 (OSR). During cross-examination of this witness it is stated that no such order passed overriding Ex DW2/1 is available in the personal file of A3 maintained by the office. He denied the suggestion that there was no joining report in the personal file, as accused no.3 did not join Bhoomi Suraksha Sakha (Land Protection Branch) in pursuance of Ex DW2/1.
A1 further examined DW3 Sh. Sanjay Upadhyay, Inspector ACB, CBI Delhi who has stated that Ex.PW3/A is the note-sheet which is the original document. He further stated that the rough sketch plan is Ex PW3/A2 is also an original document. He did not have any original document pertaining to this case and whatever documents are material worth lying with him, he has CBI Vs. Dharamvir Khattar & Ors. Page 94 of 179 95 already filed before this court. He did not know about the original file bearing no. F8(25)/84-IL. He has further stated that in file bearing no. F8(25)/84-IL/PT this file is regarding Bhairon Mandir Samiti. He further stated that all documents relating to allotment of plot of BMS, cancellation of lease deed, original notice sent to accused no.1, newspaper cutting related to Bhairo Mandir Samiti regarding allotment of land to Bhaironji Mandir Samiti, final show cause notice and other documents relating to Bhairo Mandir Samiti, Institutional Area, New Delhi.
42 First of all, I shall discuss law regarding conspiracy.
Conspiracy "120B- Punishment of criminal conspiracy - (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term CBI Vs. Dharamvir Khattar & Ors. Page 95 of 179 96 not exceeding six months, or with fine or with both."
43 The allegations in the charge sheet are for offences under Section 420IPC, 120B IPC read with Section 13 (2) read with Section 13 (1) (d) of PC Act, Section 13 (2) read with Section 13 (1)
(d) of PC Act. It is a well settled law that in a case of conspiracy, the agreement between the conspirator cannot be proved directly but it can be only inferred from the circumstances of each case. A conspiracy need not be established by evidence of an actual agreement between the conspirators. Overt acts raised a presumption of an agreement and knowledge of the purpose, of the conspiracy. The connection has to be established with the conspiracy and not with the separate acts of different conspirators which are the overt acts of the different individuals in proof of the conspiracy. Overt acts may properly be looked at as evidence of the existence of concerted intention in many cases, it is only by means of overt acts that the existence of the conspiracy can be made out. Further, a conspiracy is generally a matter of inference deduced form certain criminal acts of the accused, done in pursuance of an apparent criminal purpose in common between CBI Vs. Dharamvir Khattar & Ors. Page 96 of 179 97 them. In a case of conspiracy, when there is no direct evidence, inference from proved circumstances must be to a large extent from the basis of courts conclusion. Direct evidence of conspiracy is almost an impossibility as it is in a rare case only that there is direct evidence of the place where the conspiracy was entered into. Conspiracies have to be inferred from the subsequent conducts of the parties having regard to all the circumstances of the case. 44 In case of State v. Mohd. Afzal & Ors. 2003 VII AD (Delhi) 1, the Hon'ble High Court, observed (in paras no. 212 to
214) as under:-
"If conspiracies are hatched in the darkness of secrecy and direct evidence is seldom forthcoming and if the offence is to be proved in relation to the acts, deeds or things done by the co- conspirators, the question would arise as to what is the nature of these acts, deeds or things. Is merely moving around together or seen in each other's company sufficient? If not, what more should be there from which it could be inferred that the conspirators were acting to achieve the desired offence in furtherance of a crime.
A charge of conspiracy, inherently causes prejudice to an accused because it forces him into a joint trial and the entire mass of evidence against all the accused persons is presented for consideration of the court. This prejudice may get compounded when prosecutors seek to sweep within the dragnet of conspiracy all those, who have been associated in any degree whatsoever with the main offenders.CBI Vs. Dharamvir Khattar & Ors. Page 97 of 179 98
But the prosecution also has a difficulty at hand. It is difficult for it to trace the exact contribution of each member of a conspiracy besides, direct evidence is seldom forthcoming. In the judgment , State of Maharashtra and Ors. v. Som Nath Thapa and Ors., the Hon'ble Supreme Court illuminating on this grey area, observed that for a person to conspire with another, he must have knowledge of what the co-conspirators were wanting to achieve and thereafter having the intent to further the illegal act takes recourse to a course of conduct to achieve the illegal end or facilitate its accomplishment. Except for extreme cases, intent could be inferred from knowledge for example whether a person was found in possession of an offending article, no legitimate use of which could be done by the offender. To illustrate, a person is found in possession of 100 Kg. of RDX, is proved to be visiting or visited by "A" against whom there is a charge of conspiring to blow up a public place. Here, the recovery of the offending article would be enough to infer a charge of conspiracy. However, such instances apart, it was held that law would require something more. This something more would be a step from knowledge to intent. This was to be evidenced from informed and interested cooperation, simulation and instigation. The following passage from People v. Lauria 251, California APP 2 (d) 471 was cited.
"All articles of commerce may be put to illegal ends,.... but all do not have inherently the same susceptibility to harmful and illegal use....This different is important for two purposes. One is for making certain that the seller knows the buyer's intended illegal use. The other is to show that by the same he intends to further promote and cooperate in it. This intent, when given effect by overt act, is the gist of conspiracy. While it is not identical with mere knowledge that another proposes unlawful action, it is not unrelated to such knowledge........ The step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness, indifferent, lack of concern. There is informed and interested cooperation, simulation, CBI Vs. Dharamvir Khattar & Ors. Page 98 of 179 99 instigation."
Thus, the proof of offence of conspiracy would require in most cases some kind of physical manifestation of agreement. The physical manifestations may not be proved by overt acts but may be evidenced by conscience acts or conduct of parties and reasonably clear to mark their concurrence. Where evidence is clear, offence of conspiracy may be proved by necessary implications. Innocuous, innocent or inadvertent acts and events should not enter the judicial verdict. The court must be cautious not to infer agreement from a group of irrelevant facts carefully arranged so as to give an assurance of coherence. Since more often than not conspiracy would be proved on circumstantial evidence, four fundamental requirements as laid down as far back as in 1881 in the judgment reported 60 years later at the suggestion of Rt. Hon'ble Sir Tej Bahadur Sapru 1941 Allahabad ALJR 416, Queen Empress v.
Hoshhak may be re-emphasised:-
1. that the circumstances from which the conclusion is drawn be fully established;
2. that all the facts should be consistent with the hypothesis;
3. that the circumstances should be of a conclusive nature and tendency;
4. that the circumstances should, by a moral certainty, actually exclude every hypothesis but the one proposed to be proved."
Now I have to discuss the entire evidence available on record in respect each accused separately.
DHARAMVIR KHATTAR (A1) 45 The charge against A1 was ordered to be framed by my Ld. Predecessor for offences under Section 420 IPC and Section CBI Vs. Dharamvir Khattar & Ors. Page 99 of 179 100 120B IPC read with Section 13 (2) and 13 (1) (d) of Prevention of Corruption Act.
First of all I have to discuss Section 420 IPC.
Section 420 IPC reads as :
"420. Cheating and dishonestly inducing delivery of property - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable of fine."
46 In the light of entire evidence which has already come on record and discussion hereinabove, this Court comes to the conclusion that A1 is guilty of offence under section 420 IPC.
A1 applied and was alloted land i.e. plot no. 1, Patel Nagar, New Delhi for the purpose of religious as per Ex PW9/4/1, which is copy of perpetual lease. It is specifically mentioned in clause 13 i.e. at point A that it is applied and allotted for one purpose i.e. religious purpose. Proviso to this clause specifically mentions that if lessee was desirous of using the said land or CBI Vs. Dharamvir Khattar & Ors. Page 100 of 179 101 building thereon for a purpose other than that of religious purpose then it was the prerogative of lessor who may allow such change of user on such terms and condition including payment of additional premium and additional yearly rent as the Lessor may in his absolute discretion determine. This land was allotted to Sh. Bhairo Mandir Samiti for which A1 had claimed himself as President of the said society. However, till date A1 has not disclosed about name of any other officer bearer of the society or brought before this Court. As per Section 106 of Indian Evidence Act, it is upon A1 himself to bring before this Court about details of other members of the society as such names are within the special knowledge of A1.
Moreover, Ex PW14/1 which is occupancy certificate issued on 25.8.88 and Ex PW14/2 wherein report was prepared by A2 for construction existing according to the sanctioned plan, as mentioned therein. But the fact remains that it has come in evidence that building has not constructed as per sanctioned plan but it comprises basement, ground floor, first floor, second floor, third floor and fourth floor. Nowhere any such plan, wherein it was sanctioned to construct the building to such an extent, has been brought on record. It is evident from the answer given by A1 CBI Vs. Dharamvir Khattar & Ors. Page 101 of 179 102 during his statement under Section 313 CrPC. As per evidence come on record when it is put to A1 that as per site inspection report Ex PW3/B there was unauthorised construction on plot no. 1, East Patel Nagar, New Delhi, then he had simply given answer that he did not know. Nowhere it was challenged by A1 that building has been constructed unauthorizedly or there exists only authorized construction at the site.
During answers given in the same statement by A1, A1 also claimed that building is not a hotel but a Dharamshala. But the fact remains that the statement of PW1 who organized the function in the building for the purpose of ring ceremony and paid Rs.5000/- or Rs.6000/- in the year 1993. It is nowhere challenged that the said amount was paid as a donation and not as charges to arrange for function.
47 It is further claimed by A1 in the said statement that there was no BMS Hotel but simply a Dharamshala but the fact remains that it is not explained by for simple "BMS" written on the board of the building but it was not written completely i.e. Bhairo Mandir Samiti which fact indicates that it was not only to cheat CBI Vs. Dharamvir Khattar & Ors. Page 102 of 179 103 people but also DDA and other government officials. Thus, A1 committed cheating 'in rem' towards the entire society. If A1 would have specifically written at the building Bhairo Mandir Samiti then definitely people would come to attend rituals at the temple but not in a hotel. Therefore, this Court is of the considered view that A1 applied his mind only to use the building as hotel and to cheat people as well as the Government functionaries in such a way that he would avoid the liability for misusing the land which was allotted as a lessee and to conceal this fact of misuse from the people also. 48 In the last, it is stated by A1 that when the society got donation, its started some addition in the building after 2-3 years of issuance of the completion certificate. The additional construction was done at different stages as per availability of funds, finally the building was completed in the year 1993 and was strictly used for Dharamshala and temple purposes. He has further stated that there was no commercial activity in the said building and same was upheld in the civil matters against DDA wherein the civil Court held that there is no misuser in plot no.1, East Patel Nagar, Delhi. However, said judgment is not applicable to the facts of the present CBI Vs. Dharamvir Khattar & Ors. Page 103 of 179 104 case in as much as in the judgment relied upon by A1 dated 16.10.08 passed by Dr. Kamini Lau, ADJ, Delhi wherein it was observed that DDA did not substantiate the allegations of users as alleged by them in the show cause notice and the notice was not specified. However, this Court is of the considered view that CBI has brought all the evidence to substantiate the charges of misuser by corrupt activities by A1 for the said premises/plot/building. This court has already made detailed observations in para 13 of this judgment. It is also come in the evidence that such offences committed by A1 in connivance with A2 and A3 who are public servants. In the statement made by A1 under Section 313 CrPC nowhere it is claimed by A1 that he had broken mezzanine floor of the building but the fact remains that A2 had given report Ex PW14/2 wherein it is stated that there was existing mezzanine floor but the fact remains that any person who is going to make additions in the building would not got demolish the mezzanine floor in the building. Nowhere it is challenged by A1 during cross-examination of all the witnesses nor claimed in his statement recorded under Section 313 CrPC. Moreover, this Court further refers the statement of PW2 who categorically stated that this is a five storey CBI Vs. Dharamvir Khattar & Ors. Page 104 of 179 105 building since the very beginning. He has further stated that it might have taken two years in completion of this building. Now again reference has been made to Ex PW9/4/1 which bears date 17.1.1986. Therefore, the perpetual lease was granted to A1 on 17.01.1986 and Ex PW14/2 was prepared by A2 on 22.8.1988. Therefore,the testimony of PW2 corroborate by both these documents i.e. Ex PW9/4/1, Ex PW14/2 who has stated that it took about two years in completion of this building. 49 PW2 is an independent witness. In any manner it is not possible for him to have knowledge about date of the allotment or perpetual lease in favour of A1 but the moment perpetual lease was granted, construction was started and it was completed in about 2 years as per the testimony of PW1 who has specifically stated that building took two years in completion of construction. Morever, if mezzanine floor was existing then definitely during cross- examination it must have been challenged to any other witness by A1 that there was existence of mezzanine floor. But that challenge is nowhere to any of the witnesses. Therefore, this building was constructed unauthorizedly beyond the sanctioned plan. Moreover, CBI Vs. Dharamvir Khattar & Ors. Page 105 of 179 106 none of the witnesses offered either on behalf of the prosecution or on behalf of the defence brought before this Court who deposed about stage of construction after 1988 of the building. 50 Regarding commercial use, this Court can very well depend upon the testimony of PW29, who stated that drafts for payment were remitted in favour of BMS wherein it is not mentioned that it was a donation and further upon the testimonies of PW6, PW8 and other witnesses, whose testimonies have already been discussed herein above.
During arguments, learned Sr. counsel for A1 had made submissions that nowhere there is whisper by any of the witness to prove offence under Section 420 IPC. However this Court does not agree with the arguments raised by learned Sr. counsel for A1 in as much as entire material and evidence available on record show that A1 was using the premises for committing cheating not only with general public but also with DDA. He induced the DDA to deliver the plot measuring 600 square meter as per Ex PW9/4/1 for religious purpose but he changed the usage of the premises it for commercial purpose i.e. to make profit by running hotel. He CBI Vs. Dharamvir Khattar & Ors. Page 106 of 179 107 confidently written 'BMS' but nowhere written Bhairo Mandir Samiti. He displayed Atithi but not as Atithi Dharamshala. Even no such photograph or any witness has been brought by A1 either during statement under Section 313 CrPC or defence evidence. During defence evidence, learned counsel for A1 pressed upon list of some documents filed by CBI but the fact remains that neither register maintained for Dharamshala purpose nor any receipt book nor any person on behalf of A1 nor any photograph has been brought on record to prove that premises was used as Dharamshala/religious purpose. This Court already made detailed observations in foregoing pass of this judgment.
He has further claimed that prosecution has not examined IO of the case which is fatal to the case of the prosecution. This Court does not agree with this contention as IO has already been died and in such circumstances, this Court can rely upon the evidences which have come before this Court. 51 It is further objected by learned defence counsel that no one from investigating agency to prove the document annexed with the charge-sheet. However, this Court is of the considered opinion CBI Vs. Dharamvir Khattar & Ors. Page 107 of 179 108 that what material brought before this Court during evidence, this Court has to consider whether the prosecution is able to prove the guilt of the accused. Prosecution has already prove the case in accordance with the law which has already been discussed herein above in this judgment. Learned defence counsel further raised the objection that there is no witness of any demand or acceptance or there is no allegation or there is no witness for collision. He has further submitted that no witness has alleged about unauthorized construction or misuse of the property in the year 1988. It is further submitted that no witness has deposed regarding any misconduct of any accused. It is further submitted that there is no recovery, no statement or notice, even no photograph pertaining to alleged unauthorized construction. Even no witness has deposed the name of any of the accused. Therefore, he submits that prosecution is not able to prove the case. Again this Court does not agree with all such submissions.
52 In the light of testimony of PW2, the contention raised by learned defence counsel that there is no witness of the year 1986, does not hold water as PW2 specifically stated that building CBI Vs. Dharamvir Khattar & Ors. Page 108 of 179 109 was five storey building from the very beginning and the construction took about two years. Moreover, Court is of the considered opinion that case of the CBI is not based upon any bribe or demand but the conspiracy committed by A1 for misuse of the building for commercial use and to make unathorized construction thereof. Therefore, such arguments are not going to help in view of the specific observations made by this Court in para
13. This Court further observed that even no person such Pandit ji/ Pujari has been disclosed during the entire statement of A1. In the light of Section 106 of Indian Evidence Act, this fact was within the knowledge of A1. In his statement under Section 313 CrPC, he could disclose the name of Pujari/Pandit ji, who performs rituals in the temple. At the cost of repetition, this Court again observes that in every temple there is ambiance/atmosphere of temple, so every person who enters therein, there is sound of bell in morning and Aarti (daily rituals). There is distribution of prasad (holy sweet) among devotees who are attending the temple. Even nowhere it is claimed about salary to be paid to Pujari of the temple, care taker/manager of the Dharamshala and other related workers thereof. It is a matter of evidence that in the premises in every CBI Vs. Dharamvir Khattar & Ors. Page 109 of 179 110 room there was installation of AC, TV, fridge and all modern amenities. The source of funds for payment of such facilities also not been disclosed which must be in within the special knowledge of A1. No such person has been named by A1 in his statement recorded under Section 313 CrPC challenged during cross- examination of the prosecution witnesses. Even no account book has been brought which was being maintained by Bhairo Mandir Samiti regarding any donation received and expenditure incurred. Even no caretaker/Manager of Dharamshala produced before the Court as defence evidence. A Dharamshala wherein about 35 rooms were in existence then definitely it requires various workers, care taker/Manager who could depose either before CBI or before this Court but none of them has been produced nor A1 has taken name of any such person in his statement recorded under Section 313 CrPC. Moreover, there are many list of witnesses submitted by A1 for defence evidence but in none of them, there is mention of any such witness. Therefore, this Court has no hesitation that A1 has committed offence under Section 420 IPC.
Moreover, the offence of unauthorized construction in violation of approved plan has been committed and the said fact CBI Vs. Dharamvir Khattar & Ors. Page 110 of 179 111 was concealed from the DDA for the purpose of pecuniary advantage in collusion with A2 and A3 and in agreement with A2 and A3 who as public servant abused their position for themselves and for A1 committed offence under Section 120B read with Section 13 (2) and 13 (1) (d) of Pct Act 1988.
53 Learned defence counsel has further relied upon judgment Thermax Limited and Ors v. K. M. Johny and Ors. (2011) 13 SCC 412. The facts of this judgment are not applicable to the facts of the present case as dishonest intention of A1 in this case as it is very much apparent in the light of evidence discussed hereinabove.
Similarly judgment S. V. L. Murthy v State & Ors. (2009) 6 SCC 77 is applicable to the facts of present case as it is regarding a bank matter wherein all the evidence was documentary but herein evidence is regarding unauthorized construction which is manifest in the light of discussion hereinabove.
Learned counsel for A1 has further relied upon judgment titled as Sujit Biswas v. State of Assam (2013) 12 SCC 406 but this judgment is not applicable to the facts of the present CBI Vs. Dharamvir Khattar & Ors. Page 111 of 179 112 case. In the said judgment, appellant was convicted for offenses under Section 376 (2)(f) whereas present case pertains to Prevention of Corruption Act, 1999.
Learned counsel further relied upon Subramanian Swamy v. A. Raja AIR 2012 SC 3336. However, this judgment is not applicable to the facts of the present case where evidence is yet to be recorded and criminal conspiracy was inferred that there was discussion between officers and facts are not as such in the present case.
Similarly, facts of Thimmareddy and Ors. v. State of Karnataka in SLP (CRL) No. 903/2014 are not applicable to the present case as the question of TIP was involved and it was argued that as per evidence none of the witnesses stated that they had sent the accused persons in the said case.
Learned counsel has further relied upon P. Satyanarayana Murthy v. The Distt. Inspector of Police and Anr. Crl. Appeal No. 31of 2009. However, said case is regarding demand of direct illegal gratification but here the case of the CBI is not as such for illegal gratification. Thus, fact of the cited case are clearly different to the present case.
CBI Vs. Dharamvir Khattar & Ors. Page 112 of 179 113
Similarly facts of judgment titled as B. Jayaraj v. State of A. P. (2014) 13 SCC 55 are not applicable to the facts of the present case, as in that judgment there was case of demand of illegal gratification, which is not as such in the present case.
Similarly, facts of judgment titled as A. Subair v. State of Kerala (2009) 6 SCC 587, in the said case question of non- examination of the complainant was involved and the appellant was trapped but this is not a trap case. Moreover, present case was registered on the source information.
Learned counsel for A1 has further relied upon State of Kerala v. C. P. Rao (2011) 6 SCC 450. However, in the judgment case of the prosecution was of illegal gratification but there is no such direct demand of illegal gratification in this case.
Similarly, facts of case titled as Srichand P. Hinduja v. State MANU/DE/0758/2005 are not applicable to the present case as in that case order on charge was challenged whereas in the present case entire evidence has been concluded after framing of charge.
Learned counsel has further relied upon Govind v. State of Madhya Pradesh MANU/MP/0374/2001. In view of the CBI Vs. Dharamvir Khattar & Ors. Page 113 of 179 114 observation made in the judgment:-
"....In other words formal proof is required in the manner secondary evidence is proved if the original is not produced."
In view of the above, this judgment is not applicable to the present case.
Similarly, judgment titled as Ashok Dulichand v. Madahavlal Dube and Anr. AIR 1975 SC 1748 are not applicable to the present case as in that case Representation of People Act 1951 was involved and the question for secondary evidence was involved. However, this Court has considered the material already available on record and therefore, this judgment is not applicable to the present case.
Similarly facts of Sakuntala v. State MANU/DE/2428 / 2011 are not applicable to the present case as there was question of circumstantial evidence whereas in the present there are documentary and direct evidence on record.
Learned counsel has further relief upon Arati Bhargava v. Sh. Kavi Kumar Bhargava AIR 1999 Delhi 280. However, facts of this case are not applicable to the present case as there was CBI Vs. Dharamvir Khattar & Ors. Page 114 of 179 115 delay in placing of record some documents and such fact is not involved in the present case.
Further learned counsel has relied upon R. V. E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V. P. Temple and Anr. MANU/SC/7314/2007, Smt. J. Yashoda v. Smt. K. Shobha Rani MANU/7314/2007, S. K. Rashid @ Abdul Rashid and Anr. v. State of Bihar 1987 (35) BLJR 335 and Lahu Kamlakar Patil and Anr. v. State of Maharashtra. However, facts of above judgments are entirely different from the facts of present case and are not applicable to the present case. 54 Now, this court has to consider the law laid down in A. K. Ganju v. CBI Crl. M. C. 2384/2011 decided by Hon'ble High Court on 22.11.2013 which has been heavily relied upon by the Ld. defence counsels. The judgment has been gone through.
a) In para 3 of the judgment, it is mentioned that as per the chargesheet, the case of CBI is regarding issuance of wrong completion certificate etc. where A.K. Ganju, who was an approved Architect, submitted faulty completion drawings. The building was booked for unauthorized construction by the then JE in CBI Vs. Dharamvir Khattar & Ors. Page 115 of 179 116 the said case and some servant quarters in the terrace floor were demolished, show cause notices have been issued to the owners. The role of A.K. Ganju was that he had submitted faulty completion drawings, infringements of various provisions of law in the construction of property and not shown by the Architect in the plan. Completion plan prepared by A.K. Ganju did not tally with the photographs submitted with the plan. It was agitated in the said case that the entire case of the CBI was that there was unauthorized construction and, therefore, it should be presumed that there was collusion between the Architect, MCD Officers and Engineers. It was also argued that there was no evidence to support that there was any unauthorised and/or illegal construction at the time when the completion certificate was granted, therefore, ingredients of section 13(1) (d) of P.C. Act were missing in the case.
b) It is further argued in para 31 of the judgment that since MCD Act is a complete code in itself and bars any other agency or court from taking cognizance of any violation of the MCD Act. Therefore, CBI has no power to usurup the functions of the Commissioner under the DMC Act and to investigate the matter of CBI Vs. Dharamvir Khattar & Ors. Page 116 of 179 117 unauthorized construction in violation of MCD Bye-laws.
c) In para no. 40 of the said judgment, it is mentioned that there was no evidence to show that there was any illegal or unauthorized construction in 1991 when the completion certificate was granted.
d) In para - 98 of th judgment, the Hon'ble High Court held that the building was booked for unauthorized construction by the then JE and show cause notices were issued.
e) In para - 99 of the judgment, it is mentioned that the report was submitted by the MCD officers committee. Moreover, it is held that the charges against the accused persons are in pursuance of the violation of the MCD Act and therefore, the Hon'ble High Court held that CBI or any Authority has no power to investigate the matter of unauthorized construction in violation of MCD Bye-laws, unless, it is notified by the Central Government. However, the fact as discussed herein above pertaining to A.K. Ganju case (Supra) are not applicable to the present case. CBI Vs. Dharamvir Khattar & Ors. Page 117 of 179 118
f) The fact involved in the said case is regarding submissions of wrong completion drawings which were issued by an Architect. Moreover, the building was booked by JE in the said case; show cause notices were issued; faulty completion drawings were submitted; infringements of various provisions of law in the construction of property not shown by the Architect in the plan; completion plan was prepared and submitted which was got by having the illegal coverage and unauthorized construction and violation of MCD Act. But in this case there is no such fact submitted by CBI. The case of the CBI in this case is to establish illegal nexus between builders and JE, who involved in corrupt practices which is covered under P.C. Act.
h) In the referred judgment, JE booked the building for unauthorized construction whereupon show cause notices were issued. Thus, in the said case, JE had done his duty but in the present case JE i.e. A2 and A3 never booked the building or had ever issued any show cause notice or taken any demolition action upon the property of A-1.
CBI Vs. Dharamvir Khattar & Ors. Page 118 of 179 119
i) In the judgment, there was no statement which refers to active collusion, conspiracy between builder and MCD Officers, therefore, MCD Persons were different persons. In the present case according to CBI, evidence has been brought regarding active collusion and conspiracy between JE and builders and JE are public servants.
j) In the present case, CBI has not relied upon any report of any committee but in A.K Ganju's case CBI had relied upon the report submitted by the MCD Officers Committee. Moreover, in the judgment, unauthorized and non-compoundable construction existed in the buildings were demolished much prior to the case registered by the CBI. There is no such case of CBI here, regarding any demolition of unauthorized or non-compoundable construction.
k) In para - 116, of the judgment Hon'ble High Court of Delhi held :-
"....... However, there is no statement of any witness which refers to or which alleges that there was active collusion and conspiracy between the aforementioned CBI Vs. Dharamvir Khattar & Ors. Page 119 of 179 120 persons........ .
........... In the case in hand, there is nothing to connect the petitioners inter-se and there are no allegations which could form a chain of any conspiracy......."
Therefore, Hon'ble High Court in the said case made observations and has given findings in the facts of the said case only. Similarly, in para no. 114, Hon'ble High Court observed the facts by referring the facts of the said case and the chargesheet filed in the said case. Therefore, the Hon'ble High Court has made observations in A.K Ganju's case in the light of set of the facts of the said case only and those set of facts are different from the set of the facts involved in the present case.
55 Hence, in view of above discussion, A1 is held guilty for the offences under Section 420 IPC and Section 120B IPC read with Section 13 (2) read with 13 (1) (d) of Prevention of Corruption Act, 1988.
CBI Vs. Dharamvir Khattar & Ors. Page 120 of 179 121 M. K. SHARMA (A2) 56 PW4 has proved report dated 09.06.1998, Ex PW4/C. This report prepared by PW4 is dated 28.05.1998 wherein PW directed for report for the purpose of inspection. This report referred to the JE, concerned who prepared report dated 09.06.1998 wherein it is specifically mentioned that basement was found vacant and at the ground floor a small Mandir has been constructed and Kirtan and Bhajan activities were found at the time of inspection. A reception centre was also erected on this floor. On another floor of the building there were well furnished AC rooms found constructed and on the date of inspection, some pilgrims from Gujarat were staying on the second floor and other rooms were found locked. A board of Samiti was existed on front side of the building and no board of hotel etc. existed at the site. 57 PW12 also stated that this site was being misused and concerned AE/JE did not report the misuse. He was authorized for taking action. The building plan was sanctioned and C & D forms were issued without proper site inspection. He further referred Ex PW12/1 which bears his signatures at point A wherein there is CBI Vs. Dharamvir Khattar & Ors. Page 121 of 179 122 reference of letter dated 29.10.1992 and subsequent reminders dated 05.01.1994, 01.09.1994 and 20.01.1997 regarding construction of hotel on temple plot no. 1, East Patel Nagar, Delhi. It is further reported that action taken report was called for but no report was received. At the bottom of this letter there is direction dated 01.04.1997. This was referred to Sh. M. K. Shrama (A2) who by report dated 01.05.1997 inspected the site and reported that the building was constructed upto three floor with basement and mezzanine floor used for function etc. but at the time of inspection, it was vacant. The mezzanine floor was used for small mandir where kirtan and bhajan activities were going on and a reception was erected on the ground floor and on the other floor of the building there are number of rooms were constructed and all were found locked. But the fact remains that it has already been observed by this Court that in deposition of the all the witnesses it has come that building was consisting of ground floor, first floor, second floor, third floor and fourth floor but none of the witnesses stated about mezzanine floor. This Court referred the testimony of PW1 and PW2. Even A1 has in his statement under Section 313 CrPC neither stated about mezzanine floor nor stated about any CBI Vs. Dharamvir Khattar & Ors. Page 122 of 179 123 demolition activity carried out at the building. 58 This Court further refers testimony of PW26 who proved sanction order in respect of A2 and Ex PW26/B and wherein it has been mentioned as:
".........That Sh. M. K. Sharma was posted as J. E. (Institutional Land Branch),DDA, Vikas Sadan, New Delhi from Dec.,96 and Feb, 99 and Prasad Nagar Area was under his jurisdiction."
59 During cross-examination of PW26, there is no challenge to this witness that A2 was not working at the relevant period as mentioned in Ex PW26/B or the report Ex PW4/C and Ex PW12/1 were not prepared by A2. Therefore it is proved that A2 was duty bound to report about unauthorized use over the building or misuse thereof, but A2 did not report it. During cross- examination of PW12, there is no challenge to the testimony of PW12 to the effect that JE had reported the misuse to the higher authorities for taking actions. It is not challenged on behalf of A2 that building at plot no. 1, East Patel Nagar, was not being misused. Therefore, to that extent, the testimony of PW12 is accepted as the CBI Vs. Dharamvir Khattar & Ors. Page 123 of 179 124 by accused.
In his statement under Section 313 CrPC, it is claimed by A2 that Ex PW12/1 is a photocopy and has not been proved as per law. However, it is not disputed about Ex PW4/C which is itself is handwritten document and bears signatures of A2. It is further admitted the same was considered at the time of issuance of show cause notice and it was relied upon by Vice-Chairman, DDA at the time of determination/cancellation of lease deed. However, another Ex PW4/C also there is no indication about existence of third floor and fourth floor of the building.
Therefore, this document i.e. Ex PW4/C itself is enough to prove the guilt of A2. Moreover, the testimony of PW12 also proved that it was the duty of JE to report about the misuse or violation of the building plan. Existence of third and fourth floor in the building has not been disputed by A1 in his statement under Section 313 CrPC. Even other witnesses and documents also proved that there was existence of third and fourth floor but nothing has been brought on record by A2 that he ever reported about the existence of third and fourth floor at the building either in Ex PW12/1, Ex PW4/C or even in any other document. CBI Vs. Dharamvir Khattar & Ors. Page 124 of 179 125 60 A2 in his statement recorded under Section 313 CrPC himself stated that in case of violation of lease terms the recommendation for determination of lease is the part of duty of institutional land branch, but the role of JE is limited to inspect and report the misuse of building that too after receiving the complaint from the surveyor.
61 Admittedly no such document has been brought by A2 on record. It is not claimed by A2 that Ex PW12/1 is forged or fabricated document.
During arguments, it is argued on behalf of A2 that generally AE/JE act upon the report of surveyor. This arguments is not going to help A2 as if at the time of preparation of report, if it was required by JE, then definitely he could call report of surveyor but nothing has been brought on record to prove that at the time of preparation of report, surveyor was called or surveyor had falsely reported the matter to JE.
It is further argued that there is no evidence of collusion between the builder or A2 and thus he is entitled for acquittal. He has further relied upon A. K. Ganju's case (supra) which has CBI Vs. Dharamvir Khattar & Ors. Page 125 of 179 126 already been discussed by this Court in para 54 of this judgment. 62 In view of the above discussion, this Court comes to the conclusion that CBI is successfully proved that A2 has abused his official position by not reporting unauthorized construction and misuse of the premises and therefore, A2 is held guilty and convicted for offences under Section 13 (2) read with Section 13 (1)
(d) of PC Act as A2 by abusing his position as a public servant, obtained for himself and for A1 pecuniary advantage and substantive offence under Section 13 (2) read with Section 13 (1)
(d) of the PC Act.
M. K. JOHRI (A3) 63 Now this court is going to discuss entire evidence regarding the roll of A3 in the crime. This Court has already discussed that testimony of PW2, Ex PW9/4/1 and Ex PW14/2. Ex PW14/2 was signed and issued by A3 which fact has not been denied by A3.
It is not disputed by A3 that Ex PW14/2 was issued by him wherein he has specifically mentioned about mezzanine floor CBI Vs. Dharamvir Khattar & Ors. Page 126 of 179 127 and construction thereupon. This Court has detailed observations in para 48 for this judgment. Therefore, in the light of PW2 also this Court comes to the conclusion that A3 had prepared false report upon which Ex PW14/1 i.e. completion certificate was issued.
Statement of A3 recorded under Section 313 CrPC wherein question no. 2 put to him that it was a five storey building from the very beginning for which he replied that building was in existence on 16.08.1988 as per inspection report. Thereafter, he transferred in 1989 to Land Protection Branch of DDA. Hence he did not know about the building and construction thereafter. He has admitted that he had carried inspection at plot bearing no. 1, East Patel Nagar, Delhi. He has claimed that he is not responsible for unauthorized construction if carried out after the date of inspection of building. However, he has not stated what was reason for deposition of PW2 about the fact that building is five storey since the very beginning. PW2 is an independent witness and who deposed only as per his observations made being in the neighbourhood of the premises. Therefore, this Court relies upon the testimony of PW2 when nothing as been suggested by any of the accused against the testimony of PW2 in any manner not to be CBI Vs. Dharamvir Khattar & Ors. Page 127 of 179 128 relied upon due to any reason. Moreover, this Court has already observed that nowhere any of the witness or even A1 or other accused has mentioned anywhere that mezzanine floor was broken to add more floor at any time. There is no challenge about the mezzanine floor to any witness by any of the accused regarding demolition thereof or any witness had ever seen the mezzanine floor or demolition or removal thereof. Even no defence witness has been brought in this regard. Therefore, there is no question to remove mezzanine floor from the building. Thus report prepared by A3 that the building was constructed as per Ex PW14/2 was false on the very date of preparation of this document and therefore, the said report was prepared only in collusion or in agreement to commit criminal conspiracy by A3 for illegal act. Thus A3 has committed offence under Section 120B read with Section 13 (2) and 13 (1) (d) of PC Act by abusing his position as a public servant, obtained for himself and for A1 pecuniary advantage.
During arguments on behalf of A3, learned counsel for A3 has submitted that PW2 as deposed was not living at the place as mentioned. Rather he was living near the premises. However, CBI Vs. Dharamvir Khattar & Ors. Page 128 of 179 129 it is not disputed that PW2 is living in the neighbourhood of the premises i.e. 1, East Patel Nagar, New Delhi. He has no interest towards anyone as nothing challenged by any accused as such during cross-examination of PW2.
Arguments submitted by learned counsel for A3, wherein it is contended that sanction for prosecution was not obtained by CBI under Section 197 CrPC which is mandatory for criminal proceedings against public/government official. He has further submitted that the statement of PW2 is also not reliable in as much as there is one side Santoshi Mata Mandir of the plot and DDA guest house on the other side. He further argued that PW2 has mentioned his address in MIG Flats, DDA Prasad Nagar whereas plot no. 1 is in East Patel Nagar. It is further stated that house of PW2 is 200 meters away from the building in question and therefore, his testimony cannot relied upon. He has further stated that PW1 that in 1992-93 there was 2-3 storey building whereas PW2 has falsely stated that the building was five storey since beginning. The testimony of PW2 has material contradiction with PW5 and PW23 and thus PW2 is not reliable witness. It is further argued that there was no question put to A3 with respect to the CBI Vs. Dharamvir Khattar & Ors. Page 129 of 179 130 conversion of mezzanine floor later on i.e. after 1993. It is submitted the mezzanine floor was converted in the regular floor in contravention of sanctioned plan. The objection of technical nature, however in all circumstance, A3 is not responsible for any such conversion.
The arguments raised by learned counsel for A3 are not going to help A3. First of all, PW26 has specifically stated that sanction for prosecution has already been obtained under Section 19 of PC Act, 1988. Section 19 (1) of Prevention of Corruption Act, 1988 states as:
"19. Previous sanction necessary for prosecution - (1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction -
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government.
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government.
(c) in the case of any other person, of the authority competent to remove from his office."CBI Vs. Dharamvir Khattar & Ors. Page 130 of 179 131
In cross-examination on behalf of A3, PW26 specifically stated that in the present case sanction for prosecution against A3 was accorded under Prevention of Corruption of Act, 1988. The charge also framed against A3 for offence under Prevention of Corruption Act and for conspiracy. Therefore, there is no irregularity in the sanction for prosecution. Moreover, this Court is also to see whether there is failure of justice if there is any error, omission or irregularity in sanction. Neither any error, omission or irregularity in sanction has been brought during the cross- examination of PW26 and also has not been established by the defence counsel that such error, omission or irregularity, if has, resulted is failure of justice to A3. Moreover, no such objection has been raised during cross-examination of PW26 by A3. Therefore, such objection is not going to help A3.
In support of this argument, learned counsel for A3 relied upon Professor N. K. Ganguly v. CBI, New Delhi Crl. Appeal No. 798/2015 decided by the Hon'ble High Court on 19.11.2015 and submits that since there is no sanction under Section 197 CrPC, therefore, appellant is entitled for acquittal in CBI Vs. Dharamvir Khattar & Ors. Page 131 of 179 132 view of this law laid down by the Hon'ble Supreme Court. In my considered opinion, this judgment is not going to help A3. In para 9 of the referred judgment, it is specifically observed in the said case that charge-sheet was filed before the Special Judge, Anti Corruption, CBI against all the appellants except an accused under Section 120B IPC read with Section 13 (1) (d) and 13 (2) of the PC Act and requested sanction for prosecution as for one accused sanction was declined by the competent authority. However, it is not stated that sanction for other accused was applied and only for one accused sanctioned was declined. Upon the material available on record in the referred judgment, facts indicate that Special Judge still taken cognizance.
In para 23, Hon'ble Supreme Court held that since the offence was committed by the accused in discharge of his official duties and it was not open to the Special Judge, to take cognizance of the offence since without obtaining previous sanction of the Central Government by respondent. But in the present case sanction under Section 19 of PC Act has already been taken as observed by this Court herein. PW26 specifically stated as such and his testimony almost remained unimpeached. Moreover, facts CBI Vs. Dharamvir Khattar & Ors. Page 132 of 179 133 of the case in Prof. N. K. Ganguly (Supra) indicates in para 9 that competent authority of Noida declined to grant sanction under Section 19 of PC Act for prosecuting few accused. Therefore, the facts of the case relied upon in the present case are not applicable as sanction under Section 19 of the PC Act, 1988 has already been granted in this case. Therefore, law laid down in Prof. N. K. Ganguly's case is not applicable to the present case. 64 Regarding testimony of PW2, this court is of the considered opinion as it is himself admitted by A3 in his arguments that PW2 is resident of MIG Flats, Prasad Nagar stated to be very close and therefore, if a witness is living in nearby area and also stated that he has a flat 200 meters away from the premises, therefore, there is no failure of justice in the testimony of PW2 in as much as it is stated that PW2 is living 200 meters away from the premises, then if a person is living at a distance of 200 meter and if any construction is going on, in all circumstances, it comes into the knowledge of such person. Moreover, such questions were not challenged during the cross-examination of PW2 otherwise PW2 would explain about all such facts. In my considered opinion, even CBI Vs. Dharamvir Khattar & Ors. Page 133 of 179 134 otherwise the testimony of PW2 remained un-impeached before this Court. Moreover, it is further argued that PW1 stated that in the year 1992-93, it was three storey building but by stating this fact it cannot be said that the testimony of PW2 is false in as much when the person passing through a building then it is not necessary that the said person would have counted the floor of the building. Further even a person passes or enters in a building then also that person remained on the ground floors as evident from the testimony of PW1. It is usual practice until and unless the said person has any occasion to climb the floor or top of the building, persons have habit to not to count the floor of the building but only have rough idea about the floors of the building. Moreover, no question put by A3 during cross-examination of PW1 and PW2 whether he had seen any mezzanine floor of the building when they entered into therein. It is further argued that mezzanine floor was converted into regular. However, A1, A2 & A3 has not stated in there respective statements recorded under Section 313 CrPC that any mezzanine floor was ever converted into regular floor in the building.
CBI Vs. Dharamvir Khattar & Ors. Page 134 of 179 135 65 It is not the case of A3 that after year 1988, he ever entered into building then A3 was not in a position to state that at any time, the mezzanine floor was converted into the regular floor. A1 or any other accused has not stated that at any time that mezzanine was converted into regular floor. Therefore, such arguments are not going to help A3.
66 Learned counsel for the A3 also relied upon Raghubir Singh & Chatter Singh v. Uinion Territory of Chandigarh AIR 1993 SC 1943. This judgment is also not applicable to the facts of the present case in as much as the facts of the present case that there was no conversion of mezzanine floor into regular floor. Nothing has been alleged by anyone before this Court that there was conversion of mezzanine floor into regular floor. It is case of the CBI that there was no such mezzanine floor existing in the building and for this reason, this judgment is not applicable to the facts of the present case.
A3 further relied upon Sunil Kumar v. State of Haryana decided by the Hon'ble Supreme Court on 04.12.2009 CBI Vs. Dharamvir Khattar & Ors. Page 135 of 179 136 which is on the point of approximation date and in view of decision therein, the testimony of PW2 cannot be relied upon. However, this judgment is of no help of A3 as in the case cited by learned counsel A3, the date of birth of the accused was involved. This Court is not going into minute accuracy of the building constructed at plot no. 1, East Patel Nagar. The Court has to see whether building was constructed at the time and description as per testimony of PW2. For this reason minute accuracy is not required and thus this judgment is not applicable to the present.
67 In view of the discussion, this Court comes to the conclusion that CBI has successfully proved that A3 has abused his official position by not reporting unauthorized construction and misuse of the premises and therefore, A3 abused his position as a public servant, obtained for himself and for A1 pecuniary advantage, is held guilty and convicted for offence under Section 120 B read with Section 13 (2) and 13 (1) (d) of PC Act and substantive offence under Section 13 (2) read with Section 13 (1)
(d) of the PC Act.
CBI Vs. Dharamvir Khattar & Ors. Page 136 of 179 137 68 Hence, all the accused persons are held guilty and convicted accordingly.
Dictated & announced (JITENDRA KUMAR MISHRA) in the open Court on SPECIAL JUDGE (P.C. ACT) CBI, 10.12.2015. (EAST), KKD COURTS: DELHI.
CBI Vs. Dharamvir Khattar & Ors. Page 137 of 179 138
IN THE COURT OF JITENDRA KUMAR MISHRA SPECIAL JUDGE (PC ACT) CBI, KARKARDOOMA COURTS : EAST DISTRICT DELHI Unique ID no. 02402R0717132005 AC No. 14/11/05 RC No. 39(A)/03 IN THE MATTER OF :-
Central Bureau of Investigation (CBI) VERSUS
1) Sh. Dharamvir Khattar S/o Late Sh. Hari Chand Khattar R/o 54, Sukhchain Marg, Phase-1, DLF Gurgaon, Haryana.
(President Bhairon Mandir Samiti, Plot No. 1, Prasad Nagar, Institutional Area, New Delhi.
...... (C - 1)
2) Sh. M.K. Sharma (JE, DDA) S/o Late Sh. Saidev Sharma R/o H. No. 4, Maheshwari Apartment, Sec. - 1, Rohini Delhi - 84.
...... (C - 2)
3) Sh. K.M. Johri (AE, DDA)
S/o Sh. S.N. Johri
R/o F-1/24-B, MIG Flat, Hari Nagar,
New Delhi.
...... (C - 3)
ORDER ON SENTENCE
CBI Vs. Dharamvir Khattar & Ors. Page 138 of 179
139
1 Vide separate judgment dated 10.12.2015, all the
above-mentioned convicts have been held guilty for commission of offences mentioned herein under :-
(a) Sh. Dharamvir Khattar (C-1) has been held guilty for commission of offences punishable U/s 420 & 120 B IPC r/w Section 13 (2) & 13 (1) (d) of PC Act.
(b) Sh. M.K Sharma (C-2) has been held guilty for commission of offences punishable U/s 120 B IPC r/w Section 13 (2) & 13(1) (d) of PC Act and further held guilty for commission of substantive offence punishable u/s 13 (2) read with section 13 (1) (d) of PC Act.
(c) Sh. K.M Johri (C-3) has been held guilty for commission of offences punishable U/s 120 B IPC r/w Section 13 (2) & 13(1) (d) of PC Act and further held guilty for commission of substantive offence punishable u/s 13 (2) read with section 13 (1) (d) of PC Act.
2 On 14.12.2015, arguments on sentence on behalf of all the convicts and CBI have been heard for about 2-1/2 hours. CBI Vs. Dharamvir Khattar & Ors. Page 139 of 179 140 3 In this case, it is A-1 in whose favour lease for the plot bearing No. 1, East Patel Nagar, Delhi was allotted by DDA for the use of religious purposes. A-1 also informed everyone that he is using the premises for religious as well as Dharamshala purposes but the fact remains that as per the evidence came on record, he has flouted the sanctioned building plan and used the premises for other illegal or illegitimate purposes i.e. to run hotel business activities. It is writ large from the evidence which has come on record, C-1 has applied his sharp mind how to make hole to break the law as instead of writing 'Bhairon Mandir Samiti', he wrote 'BMS' so that he could represent to the people that it is the short form of 'Bhairon Mandir Samiti' i.e. 'BMS'. In fact, he was using the premises for carrying out the hotel business by providing facilities such as well furnished Rooms with AC, TV and other amenities. 4 It has also come in evidence before the court that C-1 provided all sorts of luxuries be it legitimate or illegitimate such as wine and women to his customers/visitors. In fact, he misused the State policy. The policy of the Welfare State is to flourish religious CBI Vs. Dharamvir Khattar & Ors. Page 140 of 179 141 harmony amongst its subjects. But in the name of running such religious institution/Dharamshala, C-1 has not only blatantly flouted every rules and regulations and bylaws of Government Authority i.e. DDA but also has played with religious and pious stentiments of people of the State/country. To achieve his nefarious designs/goals to earn more and more money, C-1 did not fear for a single second and tired to mis-led the prime investigating agency of the country i.e. the CBI by giving false evidence to show that this premises/building was being used for the religious purposes and for running Dharamshala but the fact remains that except a very small temple at the ground floor, there was nothing of that sort. C-1 neither could produce any donation receipt book or accounts thereof to show that the building/premises was being maintained as Dharamshala or is being run for any religious purposes. It is very unfortunate that in this country people exploitation the religious faith of the people not for the purpose of getting the mental piece but to earn illegal profits by exploiting the sentiments of the State as well as its subject. In this case, C-1 flouted all the rules/regulations and bylaws of the State very conveniently, very daringly and without any hesitation started misusing the building for the purpose of earning CBI Vs. Dharamvir Khattar & Ors. Page 141 of 179 142 illegal profits wherein it has also come on record that he entertained Senior bureaucrats, politician and members of judiciary. It has also come on record that C-1, since very beginning was having intention of mis-using the premises to deceive the State and he falsely and mischievously got allotted the plot in the name of Bhairon Mandir Society for the religious purposes and for the purpose of running a Dharamshala and also got the building built up more than twice of the sanctioned building plan.
5 Admittedly, the State sees, acts and functions through its employees. C-3, who is the employee of the DDA had given a false report for the purpose of completion certificate to facilitate the C-1. He reported about the construction which in fact was not existing. Similarly, C-2 also conducted inspection in the same manner and has not reported the abuse and mis-use of the premises in question. He also reported about the existence which in fact did not exist. In fact, he did not report about the existence of 3rd and 4th Floor of the building. Therefore, C-2 and C-3 both being public servants did not discharge their duties honestly and diligently and both kept their eyes closed in order to facilitate or to CBI Vs. Dharamvir Khattar & Ors. Page 142 of 179 143 allow C-1 to misuse the premises in question and allowed him to carry out illegal construction perverse to the sanctioned building plan which was built upon the leased land of DDA. 6 It is submitted by learned Sr. PP for CBI that C-2 and C-3 have committed such offences in connivance with C-1, while they were holding responsible posts in such a reputed Government Organisation like DDA which ultimately affected the social objects of the people of the city of Delhi which affects the society at large.
Learned Sr. PP for CBI further submits that accused persons are not small people. They are educated persons having deep roots in the society and in way or the other, are the role model of the people and the society which they represent. It is further submitted by Sh. U.C Saxena, learned Sr. PP for CBI that the offences for which the convicts have been convicted not only affects the society, but also to the whole nation at large.
Ld. Sr. PP for CBI further submits that C-1 is not a small person, he is highly dangerous man towards the society. He further submits that CBI has put all tooth and nail to bring this culprit in the books as people were not daring to come forward to depose CBI Vs. Dharamvir Khattar & Ors. Page 143 of 179 144 against him. It is further submitted that even DDA officials also hesitated to depose against him. Ld. Sr. PP for CBI further submits that C-2 and C-3 are not illiterate but both are engineers working in prime office of Government of India, i.e. DDA where, they were given responsibility to secure the interest of the Government agency and to secure that the laws and bylaws of the State should be followed.
Ld. Sr. PP further submits that all the convicts are leading luxurious life and having their weight in their respective communities. It is further submitted that if such people are allowed to go scot-free by providing lesser punishment then definitely it will convey wrong message to the society to the effect that nothing would happen if one does corruption in whatsoever manner. Thus, Ld. Sr. PP for CBI further prays that all the convicts should be given maximum punishment as provided under statute alongwith highest amount of fine.
Learned PP Sr. for CBI further argues that C-2 and C-3 have got education from the institutions where the State provided subsidy in the education. He further submits that instead of serving their nation, they involved in such illegal activities and white collar CBI Vs. Dharamvir Khattar & Ors. Page 144 of 179 145 crimes which caused harm to the society. Thus, they also wasted the money provided by the State in their education and caused loss of the valuable money received from the tax-payers. He further submits that both the convicts were selected in DDA, the premiere institution because of their qualification at the relevant time. Government spent expenditure for recruiting and selection with expectation that they would serve the people of the nation towards progress of the country. Instead of taking care of progress of the country, C-2 and C-3 misused their education and worked to harm the society at large that too being public servants.
Ld. Sr. PP for the CBI further submits that one should not allow to make rich himself at the cost of the tax payers of the nation. It is further argued that if C-1 wanted to use the premises then the condition for which the premises was allotted then definitely, he would apply to the lessor i.e. DDA which as per rules may be permitted him after recovering share of the profits to be earned by C-1 but C-1 instead of going in accordance with the covenants of the perpetual lease of deed, concealed this fact from the DDA and thus, made himself rich at the cost of DDA i.e. the State.
CBI Vs. Dharamvir Khattar & Ors. Page 145 of 179 146
He further submits that all the convicts are not entitled for any sympathy on any ground as mentioned by Hon'ble Supreme Court in various cases, as crime has been committed by the convicts towards the society. Learned Sr. PP claims maximum punishment for all the offences committed by all the three convicts which should run consecutively and not concurrently. He relied upon Section 31 Cr.P.C. and submits that punishment should be consecutive so that convicts should get maximum punishment. He further submits that convicts should be made liable to pay fine upto crores of rupees.
Learned Sr. PP further claim cost of entire prosecution as per Section 357 (a) of CrPC for the amount of Rs.30 lac since the CBI has investigated the matter thoroughly and called witnesses from different parts of the country. He further submits that CBI has taken services for the purpose of investigation of best professionals and also hired best prosecutors to bring the guilt at home of the accused persons. He further submits that keeping in view all the facts of rising cost of transportation, communication and various other applicable methods for the purpose of investigation and to bring the witnesses before the Court from different parts of CBI Vs. Dharamvir Khattar & Ors. Page 146 of 179 147 the country, Rs.30 lacs would not be actual cost incurred in prosecution but definitely it will compensate to some extent the expenses incurred in the prosecution of this case. 7 Sh. S.K. Rungta, Learned Sr. Counsel for C-1 submits that C-1, Dharamvir Khattar is aged about 75 years and has under
gone bye pass surgery and stunts have been implanted in his chest twice. It is further submitted that he has his own house and is suffering from pain in kidney, swelling at face and is running continuously under medication. It is further submitted that he has three sons, all are married and are living separately from him. It is further submitted that there is no one to take care his ailing wife in the family as his all three sons are residing separately from him.
He further submits that crime committed by him has not put anybody on risk and cannot be termed as an aggravated form of corruption. It is further submitted that he is not a previous convict and have clean antecedents. It is further requested that keeping in view the reformatory school of jurisprudence a lenient view may be taken against C-1 for punishment and he should be punished only for the purpose of reformation so that convict may have chance to CBI Vs. Dharamvir Khattar & Ors. Page 147 of 179 148 prove him as reformed person.
8 Sh. Amit Sharma, Ld. Counsel for C-2 namely Sh. M.K. Sharma has argued that there was no mensrea in the present case to commit any crime by the convicts. It is further submitted that C-2 is aged about 62 years and has ailing wife who is suffering from backbone and knee pain. It has been further submitted that C-2 has one unmarried daughter of 28 years old and the quantum of sentence would adversely affect the prospects of marriage of his daughter. It has been further argued that C-2 during the trial of the case has always been regular and no exemption has been sought on his behalf at any point of time and thus, has not caused any delay in the trial of the case. It is further submitted that C-2, alongwith his family is residing in a rented accommodation in Delhi and does not have his own house and further requested that keeping in view the background of the case, his limited role in the crime and circumstances mentioned herein above, a lenient view may be taken against him while awarding sentence to him. 9 Sh. Atul Kumar, Learned Counsel for C-3 submits C-3 CBI Vs. Dharamvir Khattar & Ors. Page 148 of 179 149 Sh. K.M. Johri is 57 years of age and is a patient of Diabetes and his wife is also heart disease. He has one unemployed son aged about 27 years suffering from depression and schizophrenia. It is further submitted that his wife is earning income by tuitions. It has been further argued that no departmental inquiry was initiated against him by his Department. Ld. Counsel for C-3 further submits that C-3 did not receive any pecuniary advantage/bribe from any person in any manner whatsoever and has under gone the tremendous agony and mental trauma during the trial. Keeping in view the limited role of C-3 in the crime and circumstances mentioned herein above, a lenient view may be taken against him while awarding sentence to him so that ends of justice may meet. 10 Learned counsels for convicts jointly submit that the purpose of criminal judicial administration system is towards reformation and not towards retribution. They further submit that keeping in view all such facts mentioned herein, lenient view may be taken in favour of all the convicts and may be sentenced accordingly.
Learned counsel for the convicts further argued that CBI Vs. Dharamvir Khattar & Ors. Page 149 of 179 150 none of them is a hardened criminal. If they would be given severe punishment then definitely it would affect their health as well as cause adverse consequences upon them as well as upon their family persons.
11 All the Ld. Defence Counsels further jointly submit that claim of the CBI that punishment should be consecutive is again going to be harsh towards the convicts. They further submit that there is no example or precedent could be cited by learned PP regarding consecutive sentences. Rather sentence always be run concurrently as practice. It is submitted that illness of the convicts and their dependents of their family members should be taken into consideration.
12 Learned Sr. PP countered the arguments and submits that it was upon the convicts when they had committed crime and if they did not think for consequences at the time of commission of crime then definitely they cannot claim leniency from this Court now. He further submits that in catena of judgments Hon'ble Apex Court and other Courts held that corruption is like a cancer to the CBI Vs. Dharamvir Khattar & Ors. Page 150 of 179 151 society, it should be uprooted so that society should behave in accordance with the law. Learned Sr. PP has relied upon State of Rajasthan v. Dhool Singh AIR 2004 SC 1264, wherein the Hon'ble Supreme Court observed as under:-
"The courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is not absolute or whimsical. It is controlled by law and to some extent by judicial discretion, applicable to the facts of the case.
Therefore, there is a need for the courts to apply its mind while imposing sentence."
CBI has further relied upon judgment Sevaka Perumal, etc. v. State of Tamil Nadu AIR 1991 SC 1463, wherein Hon'ble Supreme Court observed as under:-
9. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine to public confidence in the efficacy of law and society could not long endure under serious threats.
If he courts did not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.
10. It is clear from the evidence that the CBI Vs. Dharamvir Khattar & Ors. Page 151 of 179 152 accused indulged in illegal business of purchase and sale of ganja. They conspired to entice innocent boys from affluent families took them to far flung places where the dead body could not be identified. The letters were written to the parents purporting to be by the deceased to delude the parents that the missing boy would one day come home alive and that they would not give any report to the police and the crime would go undetected. For murder in a span of five years were committed for gain in cold blooded, premeditated and planned way. It is undoubted that if the trial relating to Athiappan murder had taken place and concluded earlier to the trial and conviction of other three murders are not relevant facts to be considered. But in this case the trial of the murder relating to Athiappan and Hariamachandran practically took place simultaneously by which date the appellants were convicted for the murder of Chellaurai and Christodas. Therefore, the reference of conviction and sentence by the Sessions Court to those two cases also are relevant facts. The deceased Harimachandran is no other than the nephew (elder sister's son) of A-1. This would establish his depravity and hardened criminality. No regard for precious lives of innocent young boys was shown. They adopted the crime of murder for gain as a means of living."
He further submits that as per judicial verdict pronounced earlier in various cases that when the statutes provides CBI Vs. Dharamvir Khattar & Ors. Page 152 of 179 153 maximum sentence, it is only for the talk purpose but it should be implemented. He further submits that if the Court is not going to pass maximum sentence, then there must be some strong reasons for not doing so by the Court. He further submits that if statute provides maximum sentence then definitely maximum sentence should be awarded as there is no reason for non-awarding of maximum sentence. He strongly objects about leniency towards any of the convicts.
13 Learned defence counsel for all the convicts submits that learned Sr. PP for CBI misconstrued the law, in as much as if the Court is going by the arguments of learned Sr. PP then definitely in every case maximum punishment i.e. capital punishment to be awarded as a rule but intention of the legislature is not as such. It is discretion lies with the Court depending upon the circumstances and facts of each and every case. 14 This Court considers rival contentions of both the parties. This Court after hearing arguments of both the parties this court is of the considered opinion that it is not disputed that being CBI Vs. Dharamvir Khattar & Ors. Page 153 of 179 154 public servants C-2 and C-3, who involved in the corrupt practices in connivance with C-1 committed criminal conspiracy. Ld. Counsel for the convicts and also refers other judgments passed by superior Courts such as:-
In the case titled Mehkar Singh Vs. Central Bureau of Investigation, Hon'ble High Court of Delhi, 2011 (3) Crimes 94, (2011) ILR 4 Delhi 656 has held that :-
".......... There was no denial of the fact that the corruption by the public servants and particularly the law enforcers like the accused is an alarming menace to the society and which is spreading its tentacles in all walks of life. With regard to the quantum of sentence, nothing specific was pointed out by the learned defence counsel except for praying for leniency in view of the protracted pendency of the case. This was no ground to mitigate the gravity of the offence as per the catena of judgments of the Hon'ble Supreme Court and reference here can be made only to the case of State of A.P. Vs. V. Vasudeva Rao Manu/SC/0916/2003: (2004) 9 SCC 319.
In the given factual matrix, I am not persuaded to impose the minimum sentence as prayed by the learned defence counsel. In the overall circumstances, while maintaining the conviction as awarded by the learned Special Judge, I am of the view that ends of justice would be met by sentencing the accused to two years of rigorous imprisonment on each count.CBI Vs. Dharamvir Khattar & Ors. Page 154 of 179 155
Consequently, the order of sentence stands modified in the sense that the accused shall stand sentenced for two years rigorous imprisonment each under section 7 and also under Section 13(2). The rest of the order shall remain unchanged. Both sentences shall run concurrently. The period of imprisonment already undergone shall be set off. The accused shall be taken into custody to undergo the imprisonment as awarded. The appeal stands dismissed."
In the case titled Raj Kumar Vs. State of Delhi, Hon'ble High Court of Delhi, 2015 IV AD (Delhi) 280 has held that :-
"57. So far as the sentence is concerned, the appellant as let off rather lightly by the learned Special Judge by awarding RI for one year with fine of Rs. 4,000/-, and on failure to pay the same, to undergo SI for four months for the offence under Section 7 of of the P.C. Act; and to further undergo RI for two years with fine of Rs. 6,000/- and on failure to pay the same, to undergo SI for six months for the commission of offence punishable under Section 13(1) (d) read with Section 13 (2) of the P.C. Act. The appellant, who as a Beat Constable, was found guilty of committing criminal misconduct by exploiting his authority to force the complainant to pay him bribe. An officer entrusted the task of protecting the law, blatantly breached the same. Looking to the rampant corruption prevalent in the society, the sentence should, and could, CBI Vs. Dharamvir Khattar & Ors. Page 155 of 179 156 have been harsher. I am, therefore, not inclined to reduce the sentence awarded by the learned Special Judge. The appellant shall surrender forthwith and undergo the remaining sentence."
In the case titled State of Madhya Pradesh Vs. Shambhu Dayal Nagar Hon'ble Supreme Court of India, 2007 (2) ACR 1428 (SC) has held that :-
"15. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large scale corruption retards the national building activities and everyone has to suffer on that count. As has been aptly observed in Swatantar Singh Vs. State of Haryana reported in MANU/SC/0510/1997, lymph nodes, the vital veins of the body politics social fabric of efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corrupt would gather thick and untraceably clouds around the conduct of the officer and gain notoriety much faster than the smoke.
And also in para no. 19 held that :-
..... From the analysis of the above decisions and the concerned provisions with which we are concerned, the following CBI Vs. Dharamvir Khattar & Ors. Page 156 of 179 157 principles emerge:
a) When the court issues notice confining to particular aspect/sentence, arguments will be heard only to that extent unless some extraordinary circumstance/material is shown to the Court for arguing the matter on all aspects.
b) Long delay in disposal of appeal or any other factor may not be a ground for reduction of sentence, particularly, when the statute prescribes minimum sentence. In other cases where no such minimum sentence is prescribed, it is open to the court to consider the delay and its effect and the ultimate decision.
c) In a case of corruption by public servant, quantum of amount is immaterial. Ultimately, it depends upon the conduct of the delinquent and the proof regarding demand and acceptance established by the prosecution.
d) Merely, because the delinquent lost his job due to conviction under the Act may not be a mitigating circumstance for reduction of sentence, particularly, when the Statute prescribes minimum sentence".
In the case titled Shiv Nanda Sahay Srivastava Vs. The State of Bihar, Hon'ble High Court of Patna, 2011 (59) BLJR 124 has held that :-
"18. when corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within the bounds of law. One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to CBI Vs. Dharamvir Khattar & Ors. Page 157 of 179 158 fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as 7 years and directed that even if the said period of imprisonment need not be given the sentence shall not be less than the imprisonment for one year. Such a legislative insistence is reflection of Parliament's resolve to meet corruption cases with a very strong hand to given signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants were warned through such a legislative measure that corrupt public servants have to face very serious consequences. If on the other hand any public servant is given the impression that if he succeeds in protracting the proceedings that would help him to have the advantage of getting a very light sentence even if the case ends in conviction, we are afraid its fallout would afford incentive to public servants who are susceptible to corruption to indulge in such nefarious practices with immunity. Increasing the fine after reducing the imprisonment to a nominal period can also defeat the purpose as the corrupt public servant could easily raise the fine amount through the same means."
In the case titled Soman Vs. State of Kerala, Hon'ble Supreme Court of India, (2013) 1 SCC 382 has held that :-
"22. ..... 1 Courts ought to base sentence decisions on various different rationales - moth prominent amongst which would be CBI Vs. Dharamvir Khattar & Ors. Page 158 of 179 159 proportionality and deterrence.
2 The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint.
3 In so far as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.
4 One of the factors relevant for judging seriousness of the offence is the consequences resulting from it.
5 Unintended consequences/harm
may still be properly attributed to the
offender if they were reasonably
foreseeable."
In the case titled A.B Bhaskara Rao Vs. Inspector of Police CBI, AIR 2011 SC 3845 Visakhapatnam, Hon'ble Supreme Court of India has also relied upon the judgment titled as State of M.P Vs. Shambhu Dayal Nagar MANU/SC/8623/2006 (Supra).
In the case titled Manish Jalan Vs. State of Karnataka, AIR 2008 SC 3074, Hon'ble Supreme Court of India, AIR 2011 SC 3845 has held that :-
12. .....In Hari Singh Vs. Manu/SC/0183/1988: Sukhbir Singh and Ors. 1989 Cril. J. 116, while emphasising the need for making liberal use of the provisions contain in Section 357 Cr.P.C.
this court has observed thus:
It may be noted that this power of Courts to award compensation is not CBI Vs. Dharamvir Khattar & Ors. Page 159 of 179 160 ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed as step forward in our criminal justice system.
However, in awarding compensation, it is necessary for the Court to decide if the case is a fit one in which compensation deserves to be awarded. If the Court is convinced that compensation should be paid, then quantum of compensation is to be determined by taking into consideration the nature of the crime, the injury suffered and the capacity of the convict to pay compensation etc. It goes without saying that the amount of compensation has to be reasonable, which the person concerned is able to pay. It the accused is not in a position to pay the compensation to the injured or his dependents to which they are held to be entitled to, there could be no reason for the Court to direct such compensation. In Sarwan Singh and Ors Vs. MANU/SC/0163/1978, State of Punjab : 1978 Cril. J 1598.
Very recently in Dilip S. Dahanukar Vs. MANU/SC/1803/2007 : Kotak Mahindra Co. Ltd. and Anr. 2007 Crl. J. 2417 explaining the scope and the purpose of imposition of find and/or grant of compensation to a great extent must be considered having the relevant factors therefore in mind. It may be compensating the person in one way or the other. The CBI Vs. Dharamvir Khattar & Ors. Page 160 of 179 161 amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but Sub Section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a judge."
In the case titled Rekha Sharma Vs. Central Bureau of Investigation, 218 (2015) DLT 1, Hon'ble High Court of Delhi has held that :-
488. .......... The Supreme Court in its decision reported as (2013) 11 SCC 401, Jasvir Kaur Vs. State of Punjab expressed concern on the absence of a sentencing policy in the country and, therefore, cautioned the Courts to calibrate the punishment with due care and upon taking into account the relevant attending circumstances. The Supreme Court quoted with approval the luminous observations of English Judge Henry Alfred Mc Cardie which are reproduce hitherto-fore:
"....Trying a man is easy, as easy as falling off a log, compared with deciding CBI Vs. Dharamvir Khattar & Ors. Page 161 of 179 162 what to do with him when he has been found guilty.
Chapter 19 of the Delhi High Court Rules deals with sentencing of offenders and throws insights on this aspect.
"1. The award of suitable sentence depends on a variety of considerations -
The determination of appropriate punishment after the conviction of an offender is often a question of great difficulty and always requires careful consideration.
The law prescribes the nature and the limit of the punishment permissible for an offence, but the Court has to determine in each case a sentence suited to the offence and the offender. The maximum punishment prescribed by the law for any offence is intended for the gravest of its kind and it is rarely necessary in practice to go up to the maximum. The measure of punishment in any particular instance depends upon a variety of considerations, such as the motive for the crime, its gravity, the character of the offender, his age, antecedents and other extenuating or aggravating circumstances, such as sudden temptation, previous convictions, and so forth, which have all to be carefully weighed by the Court in passing the sentence."
The facts of the present case as unfurled by the overwhelming evidence led by the prosecution at trial reveal a shocking and spine-chilling state if affairs prevalent in our country. An ingenious employment scam spanning across eighteen (18) districts of State of Haryana was given effect to by persons at the helm of power and the entire bureaucratic machinery fell prey to its satanic influence. Laudably, few CBI Vs. Dharamvir Khattar & Ors. Page 162 of 179 163 individuals who were examined at the trial were forthright in the hour of adversity and did not succumb to the pressures exerted upon them from all quarters. Some individuals, such as PW-14, Dhup Singh, were not even high ranking officers of th Civil Services, but mustered courage to successfully repel the pressure exerted upon them.
It is submitted that the authors of the present crime were essentially public servants; who were duty bound to preserve and uphold the dignity of law. Some had even been administered 'oath' in terms of the Constitution of India. Yet they chose to flagrantly violate the law, betraying the trust reposed in them by the citizens and the Constitution. The very nature of the present crime, its magnitude, ramifications, designed manner of execution and the deleterious impact on the society at large, warrants a strict view, lest, justice be rendered sterile.
Very recently the Supreme Court in its decision pronounced on 06.05.2014 in the case of Dr. Subramanian Swamy Vs. Director, Central Bureau of Investigation and Another, (2014) 8 SCC 682 while holding section 6A of the Delhi Special Police Establishment Act, 1946 to be ultravires took serious note of malaise of corruption in our country and pertinently observed :
"77 This court in Shobha Suresh Jumani, took judicial notice of the fact that because of the mad race of becoming rich and acquiring properties overnight, or because of the ostentatious or vulgar show of wealth by a few or because of change of CBI Vs. Dharamvir Khattar & Ors. Page 163 of 179 164 environment in the society by adoption of materialistic approach, there is cancerous growth of corruption which has affected the moral standards of th people and all forms of governmental administration.
XXX XXX XXXX XXXX
XXX XXX XXXX XXXX
80 ...In the supplementing
judgment, A.K Ganguly, J. While concurring with the main judgment delivered by G.S. Singhvi, J. observed:
"Today, corruption in our country not only poses a grave danger to the concept of constitutional governance. It also threatens the very foundation of the Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our Premabular vision. Therefore, the duty of the Court is that any anti- corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption....."
81 In balakrishna Dattatrya Kumbhar, this Court observed that corruption was not only a punishable offence but also, "undermines human rights, indirectly violating them, and systematic corruption, is a human rights' violation in itself, as it leads to systematic economic crimes".
82 In R.A. Mehta, the two-Judge Bench of this Court made the following CBI Vs. Dharamvir Khattar & Ors. Page 164 of 179 165 observations about corruption in the society:
"Corruption in a society is required to be detected and eradicated at the earliest as it shakes "the socio-economic-political system in anotherwise healthy, wealthy, effective and vibrating society". Liberty cannot last long unless the State is able to eradicate corruption from public life. Corruption is a bigger threat than external threat to the civil society as it corrodes the vitals of our polity and society. Corruption is instrumental in not proper implementation and enforcement of policies adopted by the Government. Thus, it is not merely a fringe issue but a subject-matter of grave concern and requires to be decisively dealt with."
83 ..... It was observed :
"Abuse of public office for private gain has grown in scope and scale and hit the nation badly. Corruption reduces revenue; it slows down economic activity and holds back economic growth. The biggest loss that may occur to the nation due to corruption is loss of confidence in the democracy and weakening of the rule of law."....... In the celebrated words of Martin Luther King, Jr. ; "Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless."
In the case titled Shanti Lal Meena Vs. State of NCT of Delhi (CBI), Hon'ble Supreme Court of India in its decision reported as 222 (2015) Delhi Law Times 654 (SC), has held that :-
To quote Friedman, "Generally the philosophy of deterrence still prevails in CBI Vs. Dharamvir Khattar & Ors. Page 165 of 179 166 modern criminology. We continue to be concerned with preventing, by appropriate punitive sanctions, both the individual offender and other members of society from the repetition of crime, or the litigation on the part of others by similar actions" [Law in Changing Society, W. Friedmann, 2nd Edition, P.224]. Unless the Courts award appropriately deterrent punishment taking note of the nature of the offence under the PC Act and the status of the public servant at the relevant time, people will lose faith in the justice delivery system and the very object of the legislation on prevention of corruption will be defeated. The Court is the conscious of the statute and hence its judgments should project and promote the policy aims of punishment, lest it should shake the faith of common man. It should reflect the public abhorrence of the crime. The Court has thus a duty to protect and promote public interest and build up public confidence in efficacy of rule of law. Misplaced sympathy or unwarranted leniency will sent a wrong signal to the public giving room to suspect the institutional integrity, affecting the credibility of its verdict. Thus, while awarding sentence in case under the PC Act, the Court should bear in mind the expectation of the people of its paramount duty to prevent corruption in society by providing prompt conviction and stern sentence".
In the light of above-referred judgments, the court has considered the rival arguments of both sides.CBI Vs. Dharamvir Khattar & Ors. Page 166 of 179 167
15 After considering rival contentions and law cited by both the parties as well as case laws referred by this Court, is of the view that being public servant, convict no 2 and 3 were getting salary out of the tax paid by the citizens of this country involving in corrupt activities. C-2 & C-3 who had been party in commission of illegal activities to make rich themselves with illegal conspiracy involving C-1 and therefore, all of them must have joined to share illegal proceeds or profits and in such circumstances, I do not agree with the contention raised by the Ld. Counsel for all the convicts.
16 Regarding another arguments, that they are not the habitual and repeated offenders, therefore, no adverse inference could be drawn against them. I do not agree with the contentions raised by the Ld. Counsels for all the convicts that if a conspiracy is committed then there must be meeting of minds which can take place only when there is exchange and agreement of ideas which come only when all the participants of the conspiracy arrived at an understanding for commission of crime. Such understanding can be made only when they committed crime repeatedly. Earlier, CBI Vs. Dharamvir Khattar & Ors. Page 167 of 179 168 offence may not come in the notice of the prosecuting agency and this crime has come under the notice of prime prosecuting agency i.e. CBI. Therefore, this court is of the considered opinion that illegal nexus of employees of DDA and C-1 was of such a nature in this case that they were not having terror or respect of the law but they flouted all the laws, rules and joined hands with malafide intention to amass maximum ill gotten wealth out of their illegal designs by committing such criminal conspiracy wherein C-2 and C-3 who are the public servants and C-1 was the mastermind of the crime as without his involvement and expertise, such crime was not possible at all.
17 It is the duty of every citizen of this country to report the crime committed so that criminal system come into motion.
Therefore, here again this court draws the inference that convicts are not good citizens by not putting criminal law into motion but instead they themselves involved in the crime. If corruption is being done by some one then other citizen has duty to report the crime to law enforcing agency.
CBI Vs. Dharamvir Khattar & Ors. Page 168 of 179 169 18 Arguments have been taken place regarding family members, dependents and condition of family members of C-2 and C-3. I do not agree with all such arguments also. It was the duty of all the family members of C-2 and C-3 that whenever the convicts were going to do crime like corruption and got themselves rich, then the duty of their family members was to stop the convicts to refrain themselves from doing such a crime. The family members of C-2 and C-3 instead of stopping them kept silent and thus, by keeping mum, in way or the other just abated the crime and instead of refraining him to do such an illegal act of corruption. Therefore, the court cannot have mercy upon family members of such convicts.
19 Moreover, this Court does not agree with the said contention in as much as in the present case, convicts have also been convicted under Prevention of Corruption Act. The legislator has stated the statement of objects and reasons for this Act as such :-
"Statement of Objects and Reasons - The Bill is intended to make the existing anti- corruption laws more effective by widening CBI Vs. Dharamvir Khattar & Ors. Page 169 of 179 170 their coverage and by strengthening the provisions.
The prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam Committee. There are provisions in Chapter IX of the Indian Penal Code to deal with public servants and those who abets them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable attachment of ill-gotten wealth obtained through corrupt means, including from transferees of such wealth. The Bill seeks to incorporate all these provisions with modifications so as to make the provisions more effective in combating corruption among public servants".
20 Thus, the legislature in clear words expressed its intention that for giving coverage of offences of corruption by widening their coverage with more effective registration has been indicated and therefore, the court has to consider this case according to the intentions of the legislature. The legislature is of the view that corruption should be stopped and curbed at the very foundation.
21 This court is of the considered opinion that all the CBI Vs. Dharamvir Khattar & Ors. Page 170 of 179 171 convicts have multiplied their profits of money/wealth ill gotten by them by indulging in the corrupt practices as they might have invested the said ill-gotten wealth in other investments which may not have come in the notice of the court. Moreover, in this case all the convicts had joined hands to commit corruption to earn the ill gotten wealth and their act of corruption further generates black money which is the prime concern now a days as legislature is putting all the efforts to curb the menace of black money. 22 This Court agrees with the contention raised by the Ld. Sr. PP for CBI that in this country most of the people have made the way of corruption as their way of living style as it appears to them the easiest route to get early success and easy wealth. The corruption has spread to such an extent in the society that it becomes disease among professionals, medical professionals, educational professionals or even the custodian of the nation i.e. politician of this country. No corruption can take place until and unless the public opinion may give it sanctity. Sanctity only comes when it becomes the life style of the people of the country. Great Scholars of the country Chanakya and Vidur have mentioned in old CBI Vs. Dharamvir Khattar & Ors. Page 171 of 179 172 testaments that if servant of the king becomes corrupt then integrity of the State would be at threat. Here servants of the King would be C-2 and C-3 as they were getting salary from the State. Now, in the democratic system by every citizen of the country is like King of the State because all such citizens of the country elect their representative and those representatives conduct affairs of the State through public servants. It is the duty of the public servants that they should remain faithful to the State, otherwise integrity of the State would be at jeopardy. C-2 and C-3 are employees of the State but not only the employees of the State but rather high officials of the State upon whom people of the State had faith. But instead to prove their faith, they committed the crime by joining the hands. Therefore, I do not find that any leniency can be granted as prayed by their respective counsels. But the court has to balance with the contentions of the convicts as already observed that all such persons either not getting pension or received retirement benefits.
23 This Court further observes that in this case, the convicts not only committed economic offence but also committed CBI Vs. Dharamvir Khattar & Ors. Page 172 of 179 173 social and religious offence. They exploited the religious sentiments of the institution i.e. DDA when the premises was allotted for the religious purposes but C-1 mis-used the premises for his commercial benefits and earned huge profits thereupon. Thus, he stepped on the faith of the people of this country and C-2 & C-3 facilitated him to use the premises which was allotted to him for religious purpose or for running a Dharamshala for gaining illegitimate wealth by carrying out the hotel business and thus, made themselves rich at the cost of the people of this country for which they were not entitled.
24 This court agrees with the contentions raised by Ld. Sr. PP for CBI that the punishment should run cosecutively as, if the legislature has made the provision for consecutive then the court has to award consecutive sentence. But in this case all the convicts are on their advance stage. C-1 is more than 75 years old, C-2 is aged about 65 years and C-3 is in late fifties. The crime committed by all the convicts attracts consecutive sentence but their keeping in view the facts and circumstances of the case, family background and also adopting a lenient view towards the CBI Vs. Dharamvir Khattar & Ors. Page 173 of 179 174 accused persons, in view of the facts as stated before the court that son of C-3 is unemployed and patient of depression i.e. Schizophrenia, unmarried daughters of C-2 and C-3 and health conditions of C-1, a sympathetic and lenient view is taken by the Court, especially when it is apparent that all the convicts have undergone the pangs of procreated trial.
25 Thus, this Court keeping in view all the facts and circumstances and health of the convicts, their age, their economic condition and responsibility towards their family and maintaining balance between reformative theory as argued by the Ld. Defence counsels and arguments in favour of exemplary punishment to be awarded as argued by the Ld. PP for CBI.
26 In this case, it has been brought before the court that C- 1 in connivance of C-2 and C-3 who are the Government servants organised only to commit crime i.e. corruption in such a manner by abusing their official position extended every possible help and favour to C-1 to commit the crime of corruption and thus, caused huge loss to the public exchequer. All the convicts never gave CBI Vs. Dharamvir Khattar & Ors. Page 174 of 179 175 second thought as per the facts before this court that what they were doing is against the moral law and civilization. Therefore, the court has convicted all such convicts, then definitely, they should face the punishment which should not be exemplary but having deterrent effect, so that other people should also take lesson that if they commit similar act then definitely, they would also face the consequences. Whatever loss suffered by the Public exchequer should also be recovered as no body should be allowed to get enrich by amassing ill-gotten wealth out of the malafide acts of corruption. Keeping in view all the facts and circumstances of the case, rival contentions of the parties and case law discussed, this court is of the considered opinion that the punishment should be given to all the convicts which is as under:-
(a) Convict Dharamvir Khattar (C-1) is the main convict who hatched the criminal conspiracy with other convicts no. 2 and 3 and succeeded in getting done unauthorised construction at the plot which was alloted to him by DDA for religious purposes in the name of running Bhaironji Mandir Samiti and used the same for carrying out commercial activities i.e. for hotel business and thus, CBI Vs. Dharamvir Khattar & Ors. Page 175 of 179 176 he is convicted and is being awarded sentence of simple imprisonment for a period of 7 years for the offences punishable U/s 120-B read with Section 420 IPC. He is further awarded sentence to undergo simple imprisonment for a period of 7 years for commission of offence punishable u/s 13(2) & 13(1) (d) of PC Act. He is further directed to deposit fine of Rs. 1,00,00,000/- (Rs.
One Crore). In default of payment of fine, he is to further undergo simple imprisonment for a period of 18 months. While imposing the fine the court is taking into consideration very important fact that the leased premises was being used by C-1 since the year 1989 for the purpose of hotel business and by raising extra floors and thus, he earned lot of profit as per the testimony of PW-9 recorded in this case. Therefore, he is bound to pay earned profit to the State as he was not entitled to earn all such profits as the premises was allotted to him for the religious purposes only.
(b) Convict M.K. Sharma (C-2), is the government employee and from the evidence led by the prosecution, it has come on record that C-2 by abusing his official position as a public servant concealed the fact of unauthorized construction in violation CBI Vs. Dharamvir Khattar & Ors. Page 176 of 179 177 of the approved plan and allowed C-1 to carrying out hotel activities instead of religious activities and thus, has been convicted and is being awarded sentence of simple imprisonment for a period of 3 Years 6 months for the offences punishable U/s 120-B read with Section 13 (2) read with Section 13 (1) (d) of P.C. Act. He is further awarded sentence to undergo simple imprisonment for a period of 3 Years 6 months years for commission of substantive offence punishable u/s 13(2) r/w section 13(1) (d) of PC Act. He is further directed to deposit fine of Rs. 5,00,000/- (Rs. Five Lacs only). In default of payment of fine, he is to further undergo simple imprisonment for a period of 1 year.
(c) Convict Sh. K.M Johri (C-3) from the evidence which has come on record that C-3, being public servant in order to extend favour to the C-1 submitted false NOC report dated 16.08.88 by concealing the fact of unauthorized constructions in violation of the approved plan and thereby facilitated for issuance of occupancy certificate by DDA and thus, has been convicted and is being awarded sentence of simple imprisonment for a period of 3 Years 6 months for the offences punishable U/s 120-B read with CBI Vs. Dharamvir Khattar & Ors. Page 177 of 179 178 Section 13 (2) read with Section 13 (1) (d) of P.C. Act. He is further awarded sentence to undergo simple imprisonment for a period of 3 Years 6 months for commission of substantive offence punishable u/s 13(2) r/w section 13(1) (d) of PC Act. He is further directed to deposit fine of Rs. 5,00,000/- (Rs. Five Lacs only). In default of payment of fine, he is to further undergo simple imprisonment for a period of 1 year.
27 All the sentences shall run concurrently.
28 The fine imposed shall be dealt with U/s 357 (1) Cr.P.C., out of the collected fine 25 % shall be applied towards the expenses incurred for the prosecution and is payable to CBI. Rest 75% of the total collected fine amount shall be released to the State as compensation, who has suffered pecuniary loss due to the crime committed by the convicts.
29 Benefit of Section 428 CrPC, if any, be given to all the convicts.
CBI Vs. Dharamvir Khattar & Ors. Page 178 of 179 179 30 All the convicts have been supplied with copy of judgment and order on sentence free of cost separately.
File be consigned to Record Room.
Dictated and announced in ( Jitendra Kumar Mishra) the open Court on 17.12.15 Special Judge, CBI (PC Act) East District, KKD Courts : Delhi CBI Vs. Dharamvir Khattar & Ors. Page 179 of 179