Delhi District Court
Cbi vs . Anjali Bhardwaj on 12 November, 2014
CBI Case No.44/11
RC no. AC1/2004/CBI/SPE/ACU1/New Delhi
CBI Vs. Anjali Bhardwaj
IN THE COURT OF SH. ALOK AGARWAL
SPECIAL JUDGE, PC ACT, CBI
DWARKA COURTS; NEW DELHI
CBI Case No. 44/11
Date of Institution: 27.12.2005
Date on which Judgment Pronounced: 12.11.2014
Decision: Acquitted.
CBI case no.: 44/11
FIR No: RC No. AC1/2004/A0002
CBI/SPE/ACUI/New Delhi PC Act
In the matter of:
CBI versus. Ms. Anjali Bhardwaj
D/o Late Sh. S.K. Bhardwaj,
Addl. Public Prosecutor,
Govt. of N.C.T. Of Delhi
R/o Flat No. A1/66, I st
Floor, Panchsheel Enclave,
New Delhi.
.............Accused
JUDGMENT
1. A public servant being a repository of public trust and often, of public resources, is expected to conduct himself with utmost probity. The powers vested in a public servant can be legitimately utilized only for the purpose and only in the manner which enhances the faith of the public. However, the opportunities that usually come before the public servants provide easy temptations for deviating from the path and CBI Case No.44/11 1 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj exercising the discretion vested in them for personal gains rather than, for public good. The result is that the menace of corruption has assumed gigantic magnitude leaving almost no facet of public activity untouched.
2. It was in order to combat this evil that the Prevention of Corruption Act was first enacted in 1947, was amended a few times and was later replaced by a new Act in the year 1988 with a broader sweep and more stringent punishments. The most obvious corrupt acts of demanding or accepting illegal gratification by a public servant from any person or pecuniary advantage from a person with whom he has had official dealings are punishable under Section 7 to 11 of the Act. Misuse of public office for the purpose of obtaining an undue pecuniary advantage for himself or even for some other person is punishable under Section 13 (1) ( a) to 13 ( 1) (d). However, specific acts of bribery or misconduct are very difficult to detect and even more difficult to prove. Section 13 (1) (e) of the Act read with Section 13 (2) provides for punishment for a public servant amassing assets disproportionate to his known sources of income. It is presumed that the said disproportionate assets have been acquired by adopting what are generically known as Corrupt practices.
3. Courts being temples of Justice, necessarily have to be absolute no tolerance zones so far as these practices are concerned. Criminal offences are considered to be offences against the society at large and a Public Prosecutor prosecutes CBI Case No.44/11 2 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj an accused in the court on behalf of the public/society. He has a momentous role to play in protecting the rights of the citizens against attack by the criminals. A Public Prosecutor not acting in good faith can cause tremendous harm to the society as well as to the efficacy of the judicial system and consequently, to the reputation of the courts as temples of Justice. The requirement for his conduct to be absolutely beyond reproach can not be over emphasised.
4. Ms. Anjali Bhardwaj, working as Addl. Public Prosecutor in the District Courts of Delhi has been charge sheeted by the CBI under Sections 13 (1) (e) r/w Section 13 (2) of the Prevention of Corruption Act, 1988.
5. As per the charge sheet, accused Ms. Anjali Bhardwaj worked as Legal Assistant with Delhi Milk Scheme since the year 1992 and subsequently, she joined Govt. of NCT of Delhi as Assistant Public Prosecutor on 02.03.1994 and was promoted as Additional Public Prosecutor on 02.01.1998.
6. It is stated that the accused Ms. Anjali Bhardwaj comes from a family with ordinary financial background. Her father Late S.K. Bhardwaj worked with Municipal Corporation of Delhi as Sanitary Inspector. He expired on 10.01.1988. Mother of the accused is a housewife. Accused is having one brother and a sister. The grand father of accused had a house located at 2/2 Babarpur, Shahdara, Delhi which after his death was transferred in the names of her mother and brother and they shifted to said house in 1987. Her brother Anjum Bhardwaj and her sister CBI Case No.44/11 3 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj Eshu are also in ordinary employment.
7. On an information regarding accused Anjali Bhardwaj acquiring assets disproportionate to her known sources of income, the CBI registered a case RC no. AC1/2004/A 0002/CBI/SPE/ACU1/New Delhi under Sections 13 (2) r/w 13 (1) ( e) of Prevention of Corruption Act, 1988 against her, on 09.03.2004.
8. A search was conducted at the house of the accused situated at A 1/66, Panchsheel Enclave, New Delhi on 10.03.2004 in the presence of independent witnesses and an inventory of goods was prepared and documents were seized by the IO vide seizure memo.
9. As per CBI, for the purpose of calculating disproportionate assets, the check period was taken from 01.04.1994 to 10.03.2004.
10. It is averred that at the beginning of the check period i.e. on 01.04.1994, accused was in possession of only limited movable assets. An amount of Rs. 53,609/, which was received by her as salary in her previous employment has been taken as her Assets at the beginning of the check period.
11. It is alleged that at the end of the check period that is on 10th of March 2004, the accused was found in possession of a house at Panchsheel Enclave, a shop at Nehru Place and agricultural land in village Kapashera, apart from various other monetary investments. Total movable and immovable assets found in possession of the accused were computed at CBI Case No.44/11 4 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj Rs. 28,21,963/ as detailed below:
Immovable Assets at the end of check period Value ( In Rs.)
1) House No. A1/66, Panchsheel Enclave Rs. 9,00,000/ New Delhi.
2) Land in village Kapashera, New Delhi Rs. 6,00,000/
(Khasra No. 563 & 564)
3) Shop No. 811, Nehru Place, New Delhi. Rs. 70,000/
Total =
Rs. 15,70,000
Movable Assets at the end of check period Value ( In Rs. )
1) National Saving Certificate Rs. 1,04,000/
(Nos.6NS43EE11 1177980, 35CC174335,35CC174761 63 etc.)
2) Kisan Vikas Patra Certificate Rs. 30,000/ (6NS25EE769918920,6NS25EE909634, 6NS27DD619998620005 etc.)
3) Balance in various banks Rs. 3,35,531/ Bank A/C No. Canara Bank , Shahdara 17965 SBI, Tis Hazari 40792 SBI, Tis Hazari PPF A/c No. 1027 Vaisya Coop. New Bank Ltd., Darya Ganj 22757 Syndicate Bank, KG Marg, New Delhi 22220 UCO Bank, Parliament House Extn. 3335 Counter, New Delhi.
Syndicate Bank, International Branch 63274 CBI Case No.44/11 5 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj Connaught Place, New Delhi.
Syndicate Bank, Connaught Place, New Delhi. 255504 SBI, Delhi Milk Scheme, Shadipur, New Delhi. 12541 Punjab & Sind Bank, Babarpur, Delhi 8629 Post Office Saving Bank, GPO6, Delhi 1147670 Jamia Cooperative Bank Ltd., Sarai Julena, Delhi. 9882
4) Bonds of ICICI Rs. 50,000/
5) Bonds of IDBI Rs. 20,000/
6) Deposits in FDR ( No. 1763/R/2003) at Jain Cooperative Bank Ltd., Shahdara Rs. 45,743/
7) Investment in LIC policy No. 120406720 Rs. 86,241/
8) Investment in LIC policy No. 112770991 Rs. 39,008/
9) Investment in LIC policy No. 111077867 Rs.34,979/
10) Cash recovered during house search of Ms. Anjali on 10.3.20014 Rs. 96,000/
11) Cost of the household articles Rs. 2,92,261/
12) Cost of jewellery recovered during search of Locker No. CV/62 at Syndicate Bank, K.G. Marg, New Delhi. Rs. 1,18,200/ Total = _______________ Rs. 12,51,963/ _________________ Total Assets found at the end of the CBI Case No.44/11 6 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj Check period = Rs. 15,70,000 + Rs. 12,51963 = Rs. 2821963/
12. It is further alleged that during the check period, the accused purchased and sold various properties and that her total income from all sources was Rs. 59,84,988/, as detailed below:
Income during the check period Value ( in Rs. )
1. Income from carry home salary Rs. 12,40,895/
2. House Loan from HDFC ( A/c No. 577618) for purchase of house at Rs. 6,00,000/ Sushant Lok.
3. House Loan from HDFC ( A/c No. 602514) for construction of house at Rs. 3,50,000/ Sushant Lok.
4. Income by sale of house No. C1618, Sushant Lok, Gurgaon. Rs. 30,00,000/
5. Income by sale of land at Kapashera Village ( Khasra No. 79 & 80) Rs. 3,25,000/
6. Income from refund of advance from Naval Technical Cooperative Housing Rs. 3,11,000/ Society, Dwarka.
7. Survival benefit of LIC policy No. 120406720 Rs. 60,000/
8. Interest from saving accounts Rs. 85,593/ CBI Case No.44/11 7 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj Total = ___________________ Rs. 59,84,988/ __________________
13. It is revealed, during investigation, that accused incurred expenditure amounting to Rs. 73,48,796/ during the check period i.e. 01.04.1994 to 10.03.2004 as detailed below:
Expenditure during check period Value ( in Rs. )
1. Household/kitchen expenditure Rs. 4,13,631/ ( taken as 1/3 of carry home salary)
2. Cost of purchase of house No. C1618 Rs. 7,71,620/ Sushant Lok
3. Cost of Purchase of land at village Kapashera including stamp duty for Rs. 2,82,500/ registration.
4. Cost of construction of house no. C1618 Rs. 21,00,000/ Sushant Lok, Gurgaon.
5. Stamp duty paid at the time of purchase Rs. 23,375/ of house at C1618, Sushant Lok by Ms. Anjali Bhardwaj.
6. Interest paid to HDFC Ltd. in account no. Rs. 46,455/ 602514 including processing and administrative charges.
7. Loan amount repaid to HDFC in Rs. 4,59,438/ account no. 577618 including fee and processing charges.
8. Transfer charges for purchase of shop Rs. 53,050/ CBI Case No.44/11 8 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj no. 811, Nehru Place, New Delhi.
9. Expenditure on stamp duty and Rs. 68,000/ Corporation tax of House No. A1/66, Panchsheel Enclave.
10. Payment of telephone bill of tel. no. Rs. 11,983/ 26498920
11. Payment of mobile bill of mobile no. Rs. 28,731/ 3230623
12. Payment of telephone bill of tel. no. Rs. 17,013/ 26498282
13. Payment of telephone bill of tel. no. Rs. 13,883/ 26497736
14. Payment of Electricity bills of House no. Rs. 32,591/ A1/66, Panchsheel Enclave
15. Payment of Water bills of House No. Rs. 1,734/ A1/66, Panchsheel Enclave
16. Payment of Medical charges at the Rs. 5000/ time of delivery of son of Ms. Anjali Bhardwaj.
17. Medical expenses of son of Ms. Anjali Rs. 3,792/ Bhardwaj
18. Cash given to Shri Anjum Bhardwaj Rs. 6,00,000/ for construction of house at 2/2, Babarpur Shahdara as per intimation given by Shri Anjum Bhardwaj to M.C.D.
19. Payments made to Shri Dimple Anand Rs. 16,75,000/ CBI Case No.44/11 9 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj from Ms. Anjali Bhardwaj's Bank A/c No. 63274 Syndicate Bank, Connaught Place, FX Branch, New Delhi.
20. Purchase of FDR no. 047698, UCO Bank Rs. 80,000/
21. Loan repayment to HDFC Ltd. in Rs. 3,50,000/ account no. 602515
22. Membership fee of Naval Technical Rs. 3,11,000/ Coop. Housing Society, Dwarka.
Total = _______________
Rs. 73,48,796/
________________
14. It is averred in the charge sheet that during the check
period from 1.4.1994 to 10.3.2004, accused has acquired assets worth Rs. 41,32,162/ in her name, which are disproportionate to her known sources of income and which she could not satisfactorily account for, as detailed below: (A) Assets at the beginning of the check period Rs. 53,609/ (B) Assets at the end of the check period Rs. 28,21,963/ (C) Income during the check period Rs. 59,84,988/ (D) Expenditure during the check period Rs. 73,48,796/ Disproportionate Assets ( D.A) = ( BA) + ( DC) = ( 28,21,96353,609) + (73,48,796 - 59,84,988) = Rs. 41,32,162
15. It is stated in the charge sheet that some explanations CBI Case No.44/11 10 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj were offered by accused during investigation which were not found tenable by the IO. The three explanations mentioned in the charge sheet are as follows:
(i) that the mother of the accused had received an amount of Rs. 2 lacs from final settlement of ownership of the house No. 4874/24, Darya Ganj in the year 1988.
(ii) that the mother of accused/family had also received Rs. 2 lacs from sale of various ancestral properties namely house no.
2409, 2410, 1040, 2492 and 1129 at Rewari and proceeds of these settlements were used for acquisition of different assets.
(iii) An amount of Rs. 16,75,000/ as mentioned in the above table in the column of expenditure during the check period was infact made for construction of house no. C1618 at Sushant Lok, Gurgaon and is therefore only part of cost of construction of house of Rs. 21 lacs, as separately mentioned in the expenditure column.
16. Since accused was found in possession of pecuniary resources or property, amounting to Rs. 41,32,162/ as on 10.03.2014, which was disproportionate to her known sources of income and which she failed to satisfactorily account for and since this also involves criminal misconduct on the part of accused which is punishable under Section 13 (1) (e) r/w Section 13 ( 2), accused was charge sheeted to this court in the present case, after obtaining sanction under Section 19 of the Prevention of Corruption Act, from the Deputy Secretary ( Home), Govt. of NCT of Delhi .
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17.Charge After hearing arguments on the point of charge, my Ld. Predecessor, on 03.12.2012, framed a charge under Section 13 (1) (e) r/w Section 13 (2) of the Prevention of Corruption Act against accused Anjali Bhardwaj, in respect of her failure to satisfactorily account for being in possession of assets and pecuniary resources disproportionate to her known source of income as on 10.03.2004. Accused pleaded not guilty and claimed trial.
18.Prosecution evidence After framing of charge, the documents relied upon by the prosecution were put to the accused for admission/denial under Section 294 Cr.P.C.. The accused very fairly admitted a large number of documents and files on 11.12.2012. The admitted documents/files were marked as Ex.P1 to Ex.P38 and their formal proof was dispensed with. As a result, out of the 56 witnesses cited by the prosecution, it has examined only 21 witnesses in all.
19. The prosecution has sought to prove the sanction for prosecution obtained under Section 19 of the Prevention of Corruption Act against the accused through PW4 V.B. Saxena, the then Deputy Secretary ( Home). The sanction letter has been proved as Ex.PW4/A and a corrigendum issued thereafter, as Ex.PW4/B. The investigation proceedings have been proved throught PW1 Ramesh Chander Gandhi ( house search witness), PW14 Insp V.M. Mittal ( witness of search of locker), PW16 K. CBI Case No.44/11 12 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj Babu ( initial IO of the case) and PW21 Ram Singh, Deputy SP ( Investigating Officer).
20. The entries in the calculations of disproportionate assets are sought to be proved with the help of documentary evidence and the testimonies of the witnesses examined by the prosecution. For one of the items in the list of 'expenses during the check period' i.e the electricity bills , CW1 an employee of BSES ( earlier, Delhi Vidhyut Board) was summoned as a court witness and he has proved the bills as Ex. CW 1/D ( Colly) contained in the file Ex.CW1/C.
21. Statement of the accused After closing of the prosecution evidence, the accused was examined under Section 313 Cr.P.C.. Once again, she admitted most of the evidence led through admitted documents and offered detailed explanations for the rest. The most pertinent explanations offered by her may be listed here as below:
(a) Assets before the check period : She has claimed that the IO has not taken account certain bank balances which existed before the check period and that her jewellery, the value of which is taken as Rs. 1,18,200/ under the head of 'expenses' was purchased before the check period and therefore, should be included in Assets before the check period. Thus calculated the Assets before check period would come to Rs. 3,27,658/
(b) Income during check period : She has disputed the calculation of interest on Saving Bank Accounts at Rs. 85,593/ CBI Case No.44/11 13 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj by the IO and has claimed that as per the chart prepared by her and proved as Ex.PW21/DG, the interest would come to Rs. 1,46,792.56/.
(C) Expenditure during check period :
(i) She has denied payment of electricity bills to the tune of Rs. 32,591/ on the ground that the connection is not in her name and that she has not paid the same.
(ii) She has denied payment of Rs. 6 lacs t his brother Anjum Bhardwaj as declared by him to his department.
(iii) She has explained that the sum of Rs. 16.75 lacs paid to Sh. Dimple Anand was a part of the total construction cost of the house at Sushant Lok which is already taken as Es. 21 lacs in the calculation.
(iv) She has explained that the FDR for Rs. 80,000/ was made and also encashed during the check period, with a maturity amount of Rs. 96,000/ . Hence, this cannot be taken as ' expenditure' during the check period. Rather, the income of Rs. 16,000/ on this, has to be added to her income during the check period.
(v) With regard to the membership fee of Naval Technical Cooperative Housing Society, she has claimed that the membership is in the joint names of her mother and herself and half the amount has been paid by her mother.
(d) Immovable assets at the end of the check period: She has denied having purchased the land measuring 1 bigha & 13 biswas in Kapashera, the value of which has been taken as Rs. 6 CBI Case No.44/11 14 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj lacs.
(e) Movable assets at the end of check period :
(i) She has claimed at an interest amount of Rs. 68,396/ accrued in her PPF account cannot be added to her assets without being simultaneously taken into account as her income during the check period.
(ii) She has disclaimed the FDR amount of Rs. 45,743/ added to her assets, on the ground that this actually belongs to her sister Eshu Bhardwaj.
(iii) She claimed the value of household articles found at the time of search should be taken as Rs. 1,62,650/ in place of Rs. 2,92,261/ as taken by the IO.
(iv) She has disclaimed an amount of Rs. 50,000/ out of the cash amount of Rs. 96,000/ stated to be recovered from her house, on the ground that the same belonged to Sh. Sawan Kumar Bhardwaj, who was present at the time of the search.
22. Ms. Anjalil Bhardwaj has claimed that her entire career had been blotless and that during her tenure, there were no complaints against her from any quarters. She expressed a wish to lead her evidence, but did not avail the opportunity, when granted to her.
23. Rival Arguments I have heard Sh. B.R.Sharma, Advocate for accused and Sh. Akhilesh Kumar, Ld. Sr. Public Prosecutor for CBI and have gone through the detailed written arguments filed by them and the authorities cited at the bar.
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24. Ld. Sr. Prosecutor has vociferously argued that all the entries of calculations having duly proved, a case of holding disproportionate assets to the tune of Rs. 41,32,162/ has been clearly proved against the accused beyond any doubts whatsoever. Ld. Defence Counsel has on the other hand argued with equal vehemence that even from the documents proved by the prosecution in view of the explanations offered, most of which have been admitted by the witnesses appearing for prosecution in their cross examination, no case is made out against the accused.
25. Offence of Being Found in Possession of Disproportionate Assets Complete accountability in respect of all actions taken and of all financial resources is an essential attribute of public service. The offence of misconduct as defined in section 13 of the Prevention of Corruption Act classifies certain direct acts as misconduct and also, in order to cover cases where direct evidence may not be available, lays down an indirect way of proving that a public servant has indeed committed misconduct, under section 13 (1) (e). The provision may be reproduced here as follows:
Section 13 (1) (e) (1) A public servant is said to commit the offence of criminal misconduct.
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of CBI Case No.44/11 16 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj pecuniary resources or property disproportionate to his known sources of income.
Explanation For the purposes of this section, " known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
26. The scope and ambit of this provision was explained by the Hon'ble Supreme Court in "Sajjan Singh Versus State of Punjab" (AIR 1964 SC 464). The Hon'ble court was interpreting the provisions of the Prevention of Corruption Act 1947 wherein a similar provision was found in section 5 (3) before the amendment of the Act in 1964. The relevant observations are found in paragraph 10 of the judgment which may be noted here:
This subsection thus provides an additional mode of proving an offence punishable under subsection (2) for which any accused person is being tried. This additional mode is by proving the extent of the pecuniary resources or property in possession of the accused or any other person on his behalf and thereafter showing that this is disproportionate to his known sources of income and that the accused person cannot satisfactorily account for such possession. If these facts proved, the section makes it obligatory of the courts to presume that the accused person is guilty of criminal misconduct in the discharge of his CBI Case No.44/11 17 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj official duty, unless the contrary, that is, that he was not so guilty is proved by the accused.
27. The essential ingredients of the offence to be proved to bring home a charge under section 5 (1) (e) of the Prevention of Corruption Act 1947 which after the amendment in 1964, corresponds to section 13 (1) (e) of the Prevention of Corruption Act 1988 were enumerated by the Hon'ble Supreme Court in M.Krishna Reddy versus State reported as (1992) 4 SCC 45 in paragraph 7 of the judgment which is produced herein below:
To substantiate a charge under Section 5 (1) (e) of the Act, the prosecution must prove the following ingredients, namely (1) the prosecution must establish that the accused is a public servant, ( 2) the nature and extent of the pecuniary resources or property which were found in his possession (3) it must be proved as to what were his known sources of income , i.e. known to the prosecution and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once the above ingredients are satisfactorily established, the offence of criminal misconduct under Section 5 (1) (e) is complete, unless the accused is able to account for such resources or property. In other words, only after the prosecution has proved the required ingredients, the burden of satisfactorily accounting for CBI Case No.44/11 18 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj the possession of such resources or property shifts to the accused.
28. A word of caution in paragraph 6 articulates the gist of the offence in the following words:
An analysis of Section 5 (1) ( e) of the Act, 1947 which corresponds to Section 13 (1) (e) of the new Act of 1988 shows that it is not the mere acquisition of property that constitutes an offence under the provisions of the Act but it is the failure to satisfactorily account for such possession that makes the possession objectionable as offending the law.
29. Sanction At the outset, the legal arguments raised by the accused on the validity of sanction under Section 19 of the Prevention of Corruption Act may be dealt with.
30. In this case, the sanction order to prosecute the accused has been signed by Sh. V.B. Saxena, Deputy Secretary ( Home) on 20.12.2005 with an endorsement ' by order and in the name of Lt. Governor of NCT of Delhi'. The amount of disproportionate assets mentioned in this order is Rs. 4008287/. However, there is a corrigendum issued to this sanction order on 26.12.2005 amending certain entries and arriving at the final disproportionate assets amounts at Rs. 4132162/. The original sanction letter and the corrigendum have been proved as Ex.PW4/A and Ex.PW4/B respectively through Shri V.B. Saxena appeared as PW4, who is the author of CBI Case No.44/11 19 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj both the above documents.
31. The objection raised by Ld. Defence Counsel is that the corrigendum does not proclaim to be issued by or on behalf of Lt. Governor who admittedly, is the Competent Authority to remove the accused from service.
32. In his cross examination, the witness has explained that both the order and the corrigendum were issued with the approval of the Lt. Governor and the related orders of Lt. Governor would be adjusting on the noting portions of the relevant file. He has, however, at a later stage in his cross examination, also stated that arithmetical error in the original sanction order were corrected and the corrigendum was issued by him on his own.
33. Another significant objection of the Ld. Counsel is that some of the statements of witnesses are admitted by the IO to have been recorded after completion of investigation by the previous IO. Ld. Counsel has, therefore, argued that the said statements i.e. the statement of Nalini Gupta, Sunil Kumar, Randhir and Ranjan Mudgil were not sent to the Sanctioning Authority before the passing of the sanction order. As per Ld. Defence Counsel, this depicts non application of mind by the sanctioning authority.
34. The requirement of sanction under Section 19 of Prevention of Corruption Act is in order to save public servant from unnecessary harassment through the complaints made by unscrupulous persons whom the public servant might have CBI Case No.44/11 20 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj displeased while performing his official duty. The idea is that the authority who is competent to remove the public servant from service applies his mind and prima facie decides whether the said public servant deserves to be tried in a criminal court. The degree of application of mind by the Competent Authority while scrutinizing the documents submitted, cannot be equated with that required to be made by an Investigating Officer during investigation or by the court during trial.
35. It has been held by the Hon'ble Supreme Court in various judgments including State of MP Vs. Jiya Lal (AIR 2010 SC 1451) and Superintendent of Police, Karnataka Lok Ayukta Vs. B. Srinivas ( AIR 2009 SC Suppl. 834) that ' any error, omission or irregularity in the passing of the sanction order does not by itself make the sanction invalid unless a grave prejudice to the accused or a failure of justice is shown to have been passed'.
36. In the case on hand, the main sanction order is a detailed one and is proved to have been passed by the Lt. Governor of Delhi and authenticated under the signatures of the Deputy Secretary ( Home). It is correct that the corrigendum does not on the face of it show that the same was ever placed before the Sanctioning Authority put to the accused, but as explained by PW4, the corrigendum only contains correction of arithmetical errors and in my considered opinion, did not require application of mind by the LG. Then, the accused has not been able to point out any particular prejudice caused to her even if CBI Case No.44/11 21 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj the statements of four witnesses as mentioned by her, were not put up before the Sanctioning Authority. The statements have not been proved by the accused on record. However, on perusing the said statements, I do not find anything that would have absolved the accused even if, considered by the Sanctioning Authority.
37. In view of the above, I am satisfied that grant of sanction by Sanctioning Authority cannot be challenged as invalid or illegal on any ground
38. Apartfrom the legal arguments on validity of sanction, the case of the prosecution solely depends upon the proof of each item in their calculations, by oral or documentary evidence. The defence has admitted most of the documentary evidence. It would, therefore, be expedient at this stage to indicate the manner of proof by the prosecution and the stand of the accused on each item of the calculations under various heads as projected in the charge sheet.
(A) Assets before the Check Period
Sl. Description Amount Documents Witnesses Remarks
No ( in Rupees) examined
1. Salary from 53,609/ Ex.P5(Salary None Admitted by
DMS statement of accused the accused.
from 18.09.92 to
02.03.94
( B) ( i) Immovable Assets at the end of check period
1. House No. 9,00,000/ Ex.P24 (Assessment None Admitted by A1/66 file of MCD). the accused.
CBI Case No.44/11 22 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj Panchsheel Ex.P26 ( Sale deed of Enclave, the house) New Delhi.
2. Land in village 6,00,000/ Ex.PW17/A1 to PW17 Denied by the Kapashera, Ex.PW17/A6 Sanjay accused.
New Delhi. (agreement for sale, Kaul
( Khasra No. affidavit, receipt,
564 ( 15), 563 possession letter, GPA
( 06) and 571 and deed f Will)
(02)
3. Shop No. 811, 70,000/ Ex.P21 ( GPA) None. Admitted by
Nehru Place, the accused.
New Delhi.
(B) ( ii) Movable Assets at the end of check period
1. NSCs 1,04,000/ Ex.P29/A1to None. Admitted by ExP29/A18 the accused.
Ex.P4 ( Colly)
2. KVPs 30,000/ ExP28/A1 toExP28/A4 None. Admitted by Ex.P4 ( Colly) the accused.
3. Balance in 3,35,531/ A/C opening forms & PW8 Amount various banks Statement of A/Cs Dalip disputed by Ex.P6- Ex.P11, Khanna, the accused.
Ex.P13-Ex.P16, Official
Ex.PW8/A of UCO
Bank.
(i)Canara Bank ,
Shahdara
(ii)SBI,Tis
Hazari
(iii)SBI, Tis
Hazari,PPF A/c
No. 1027
(iv)Vaisya
Coop. New
Bank Ltd.,
Darya Ganj
(v)Syndicate
CBI Case No.44/11 23 DOD: 12.11.2014
CBI Case No.44/11
RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj Bank, KG Marg, New Delhi
(vi)UCO Bank, Parliament House Extn.Counter, New Delhi.
(vii)Syndicate Bank, International Branch Connaught Place, New Delhi.
(viii)Syndicate Bank, Connaught Place,New Delhi.
(ix)SBI, Delhi Milk Scheme, Shadipur, New Delhi.
(x)Punjab & Sind Bank, Babarpur, Delhi
(xi)Post Office Saving Bank, GPO6, Delhi.
(xii)Jamia Cooperative Bank Ltd., Sarai Julena, Delhi.
4. Bonds of ICICI 50,000/ ExP25/A1 &Ex.P25/A3 None Admitted by the accused.
5. Bonds of IDBI 20,000/ Ex.P25/A2 None Admitted by the accused.
6. Deposits in 45,743/ Ex. P25/A4 None Documents FDR at Jain admitted by Cooperative the accused.
Bank Ltd. FDR
Shahdara disclaimed.
7. Investment in 86,241 Ex.P27/A1 None Admitted by
CBI Case No.44/11 24 DOD: 12.11.2014
CBI Case No.44/11
RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj LIC Policy Ex.P18 ( Colly) the accused. bearing no 120406720.
8. Investment in 39,008 Ex. P27/A2 None Admitted by LIC Policy the accused .
bearing no 112770991
9. Investment in 34,979 Ex.P27/A3 Nil. Admitted by LIC Policy the accused.
bearing no 111077867 10 Cash recovered 96,000 Ex.PW1/A PW1 Amount during house (Seizure memo) Ramesh disputed by search of Ms. Ex.PW1/C Chander accused.
Anjali Bhardwaj ( Punchnama) Gandhi
on 10.03.2004 and
PW16 K.
Babu
11 Cost of 2,92,261/ Ex.PW1/B (inventory PW1 Amount
household of articles) Ramesh disputed.
articles Ex.PW1/A(seizure Chander
memo) Gandhi
and
PW16 K.
Babu
(IO)
12 Cost of 1,18,200/ Ex.PW14/A (Locker PW14 Sh. Claimed by
jewellery Operation Cum V.M. accused to
disclosed Inspection Memo: Mittal & have been
during search Ex.PW2/A ( valuation PW2 purchased
of locker no. C report ) Govt. before the
V/62 at approved check period.
Syndicate Bank, valuer.
K.G. Marg, New
Delhi.
(C) Income during the check period
1 Income from 12,40,895 Ex.PW12/B and PW12 Admitted by carry home Ex.PW12/C A.C. the accused.
salary ( Income details ) Chaud
CBI Case No.44/11 25 DOD: 12.11.2014
CBI Case No.44/11
RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj and Ex.P38 (Colly) hary personal file.
2 House Loan 6,00,000 Ex.P1 (application None Admitted by
from HDFC for loan ) the accused.
( A/c No. Ex.P22(Colly)
577618) for (Documents
purchase of regarding loans)
house at Ex.P33 letter by
Sushant Lok accused)
3 House Loan 3,50,000 Ex.P1 None Admitted by
from HDFC the accused.
( A/c No.
602514) for
construciton
of house at
Sushant Lok
4 Income by 30,00,000 Ex.P20( Sale deed) None Admitted by
sale of house the accused.
No. C1618,
Sushant Lok,
Gurgaon.
5 Income by 3,25,000 Ex.P32(sale deed) None. Admitted by
sale of land at the accused.
Kapashera
Village
( Khasra No.
79 & 80)
6 Income from 3,11,000 Ex.P31 ( Colly) None Admitted by
refund of Copy of Ledger the accused.
advance from
Naval
Technical
Cooperative
Housing
Society,
Dwarka
CBI Case No.44/11 26 DOD: 12.11.2014
CBI Case No.44/11
RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj 7 Survival 60,000 Ex.P18 ( Colly) Admitted by benefit of LIC Ex.P27/A1 the accused.
Policy No. 120406720 8 Survival 12,500 Ex.P18 Admitted by benefit of LIC Ex.P27/A2 the accused.
policy No. 111077867 9 Interest from 85,593 Ex.P6 to Ex.P11 IO Amount saving Ex.P11 to Ex.P16 PW21 disputed by accounts ( Statement of A/c the accused.
of various banks) (D)Expenditure during check period 1 Household/ 4,13,631 IO Amount kitchen PW21 taken as expenditure 1/3rd of carry home salary;
disputed by the accused 2 Cost of 7,71,620 Ex.PW15/A ( sale PW15 Admitted.
purchase of deed) Sh.
house no. Ex.PW15/B1 to Bawa
C1618, Ex.PW15/B2 Kapoor
Sushant Lok ( receipts) officer
of M/s
Ansals
Propert
ies.
3 Cost of 2,82,500 Ex.P34( sale deed) None. Admitted.
Purchase of
land at
village
CBI Case No.44/11 27 DOD: 12.11.2014
CBI Case No.44/11
RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj Kapashera including stamp duty of registration 4 Cost of 21,00,000 Ex.P20 Form 34A None Admitted construction submitted by the of house no. accused to the C1618, Income Tax Sushant Lok, Department.
Gurgaon
5 Stamp duty 23,375 Ex.PW15/A ( sale PW15 Admitted
paid at the deed) Sh.
time of Bawa
purchase of Kapoor
house at
C1618,
Sushant Lok
by Ms. Anjali
Bhardwaj
6 Interest paid 46,455 Ex.P1 ( Colly) None Not
to HDFC Ltd. disputed.
in account
no. 602514
including
processing
and
administrativ
e charges
7 Loan amount 4,59,438 Ex.P22 ( Colly) None Admitted
repaid to
HDFC in
account no.
577618
including fee
and
CBI Case No.44/11 28 DOD: 12.11.2014
CBI Case No.44/11
RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj processing charges.
8 Transfer 53,050 None None No
charges for evidence.
purchase of
shop no. 811,
Nehru Place,
New Delhi.
9 Expenditure 68,000 Ex.P24 ( Colly) None Admitted
on stamp ( Receipt memo/
duty and MCD Assessment
corporation documents)
tax of House
No. A1/66,
Panchsheel
Enclave
10 Payment of 11,983 None None No
telephone evidence
bill of tel. no.
26498920
11 Payment of 28,731 Ex.P3 ( seizure IO Admitted
mobile bill of memo of bills)
mobile no.
3230623
12 Payment of 17,013 None None No
telephone evidence
bill of tel. no.
26498282
13 Payment of 13,883 None None No
telephone evidence
bill of tel. no.
26497736
14 Payment of 32,591 CW1/A, CW1/B CW1 Denied
Electricity R.S.
bills of House Mehta
CBI Case No.44/11 29 DOD: 12.11.2014
CBI Case No.44/11
RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj No. A1/66, Panchsheel Enclave 15 Payment of 1,732 None None No Water bills of evidence House No. A1/66, Panchsheel Enclave 16 Payment of 5,000 PW18 Admitted Medical Dr. charges at Harish the time of Gulati delivery of son of Ms. Anjali Bhardwaj 17 Medical 3204/ Ex.P2(Medical None Admitted expenses of Bills ) son of Ms. Anjali Bhardwaj 18 Cash given to 6,00,000 Ex.PW6/A ( letter) PW5 Denied Sh. Anjum Ex.PW5/A Sh.
Bhardwaj for ( service record of Rajeev
construction Anjum Bhardwaj) Kumar
of house at Ex.PW5/B
2/2, ( Personal file of PW6
Babaurpur, Anjum Bhardwaj) Sh.
Shahdara as Anjum
per Bhard
intimaton waj
given by Shri
Anjum
Bhardwaj to
M.C.D.
CBI Case No.44/11 30 DOD: 12.11.2014
CBI Case No.44/11
RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj 19 Payments 16,75,000 Ex.PW20/A1 to PW19 Cheques made to Sh. Ex.PW20/A17 Sunil admitted;
Dimple ( Cheques) Kumar, claimed to
Anand from PW20 be a part of
Ms. Anjali Sh. cost of
Bhardwaj's Bhavne constructio
Bank A/C No. sh n of the
63274 Gupta house.
Syndicate and
Bank, PW21
Connaught Ram
Place, FX Singh
Branch, New (IO)
Delhi.
20 Purchase of 80,000 Ex.PW8/DX Admitted
FDR no. ( Letter)
047698, UCO
Bank
21 Loan 3,50,000 Ex.P1 ( Colly) None Admitted
repayment to
HDFC Ltd. in
account No.
602515
22 Membership 3,11,000 Ex.P31 ( Colly) None Denied
fee of Naval
Technical
Coop.
Housing
Society,
Dwarka
39. The accused has during arguments, claimed higher values of Assets before the check period and income during check period and lower values of Assets after the check eriod and expenditure during check period. The contentions of the CBI Case No.44/11 31 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj accused on the disputed items, the reply of the prosecution and its consequences may now be discussed separately under each head.
40. Assets before the Check Period The investigating agency has taken the total salary earned by the accused during her tenure with Delhi Milk Scheme as her assets before the check period, irrespective of what she actually possessed at the commencement of the check period i.e. 01.04.1994 to 10.03.2004. This is obviously wrong and both, Ld. Prosecutor and Ld. Defence Counsel have during the course of arguments, endorsed this view.
41. In his written arguments, Ld. Defence Counsel has claimed that apartfrom the salary earned by the accused while working with DMS, the following items have to be additionally taken under the column 'Assets before the Check period':
SL. Items Amount Remarks
No.
1. Opening Balance in Rs. 48202.99/ Statement of Account
State Bank of India, Ex.P12/Deposition of
Tis Hazari. PW21.
2. Opening Balance in Rs. 1,00,050/ Statement of Account
Punjab & Sind Bank, Ex. P16/Deposition of
Babarpur Branch. PW21
3. Jewellery found in Rs. 1,18,200/ Age of jewellery locker. mentioned in Ex.PW2/A/deposition of PW2
42. Ld. prosecutor has, on the other hand argued that the CBI Case No.44/11 32 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj salary from the DMS cannot be taken into account as there is no evidence that the amount was in possession of the accused at the beginning of the check period. So far as the balance in SBI Tis Hazari is concerned, he has pointed out that the carry forward of the balance amount of Rs. 48,202.99/ is reflected in the entry dated 13th of May 1995 and not 13th of May 1993, as wrongly admitted by the IO during his crossexamination. The learned defence counsel has however argued that the prosecution has not produced the entries prior to 13th of May 1995 and therefore, at least the balance as shown on that date has to be taken as the last balance at the beginning of the check period.
43. On carefully perusing the account opening form and the statement of account EX. P 12, I find that the account number 123192 was opened by the accused on 30th of March 1994 that is, a little before the beginning of the check period. The first entry in the statement of account annexed thereto is of Rs. 4 8,202.99 as a carry forward balance on 13th of May 1995. It is further indicated that later, on computerisation, the account number was changed to 40792, the last balance of which has been taken into account by the prosecution in the column of "Movable assets at the end of the check period". The initial balance therefore has to be necessarily subtracted from the value of the final assets. The entries prior to 13th of May 1995 resulting in this carry forward balance of Rs. 48,202.99/ having not been produced, I am inclined to grant this benefit to the CBI Case No.44/11 33 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj accused, of counting the said credit balance as the credit balance available at the beginning of the check period.
44. As regards opening balance in Punjab and Sindh bank, the amount of Rs. 10,0050/ does appear to have been carried forward from 24th of February 1994, which is before the check period this amount therefore, has to be included in this column.
45. So far as the jewellery found in the locker is concerned, the charge sheet includes its value of Rs. 1,18,200/ in the column 'movable assets at the end of check period'. However, the valuation has been made by PW2 Shri O.P. Malhotra whose report is on record as Ex.PW2/A. The dates of acquisition of all the items has been mentioned in the report between 1980 and 1995. The Ld. Prosecutor has argued that these dates are mentioned only as told by the accused and therefore cannot be taken as authentic. However, explanations offered by the accused regarding acquisition of any assets is one of the important factors on which proof of offence under Section 13 ( 1) (e) of the PC Act depends. There being no reason offered on behalf of prosecution as to why the account given by the accused is not satisfactory, the version of the accused cannot be just brushed away. The same report on which the prosecution relies upon the valuation of the jewellery, authenticates the dates of acquisition as following before the check period and therefore I have no reason to hold otherwise.
46. However, the purpose of computing the value of assets held by the accused before the beginning of the check period is CBI Case No.44/11 34 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj only to subtract the same from the total assets found at the end of the check period, so as to arrive at the value of the assets acquired during the check period. In this view of the matter, only the assets which are consumed during the check period which may include liquid cash or anything which has been sold during the check period need to be taken into account. I find that the same process has been generally followed by the IO while deciding which item should be accounted in which column . On this pattern, the jewellery items as found in the locker and mentioned in the report exhibit PW2/A, having been purchased before the check period and found intact even at the end of the check period, can be excluded from both the columns.
47. It may be noted here that during investigation, the accused had offered an explanation stating that she was living with her mother and siblings at that time and that they had a cash amount of Rs. 4 lakhs with them which was received against some settlements of ancestral properties. The IO however did not file the said statements on record despite the fact that explanations offered by the accused themselves form an essential ingredient of the offence under section 13 (1) (e). It is only if the explanation is proved to be unsatisfactory that the accused can be convicted under this provision. The statements were later on summoned and the IO, PW 16 was confronted with them. On his admitting having recorded the said statements, they were taken on record as exhibit PW 10/DX1 to CBI Case No.44/11 35 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj exhibit PW 10/DX 4 respectively.
48. However, the accused also did not avail the opportunity of proving any additional cash on hand at the beginning of the check period by leading defence evidence .
49. Accordingly, the total assets held by the accused at the beginning of the check period can be taken as:
Balance in Punjab and Sindh bank Rs. 1, 00,050/ Balance in SBI Tis Hazari Rs. 4 8,202.99/ Total Rs. 1, 48,253/ (A)
50.Immovable assets at the end of check period Here, only the assets found intact at the time of raid and subsequently have to be taken into account. The Investigating Officer has also rightly taken into account the value of investment of the accused in acquiring the said assets rather then, the market value of the assets at that time, because the appreciation in value, especially the immovable assets is difficult to ascertain with accuracy.
51. The defence has not disputed the acquisition of house no. A1/66, Panchsheel Enclave, New Delhi and shop No. 811 Nehru Place , New Delhi by the accused. However, it has been pointed out that out of the value of sum of Rs. 9 lacs taken for house no. 1/66 Panchsheel Enclave, Rs. 50,000/ was the cost of fixtures provided by the builder. This is borne out from two sale deeds in respect of different plots of the house. for Rs. 4,25,000/ each and the MCD Assessment Certificate collectively proved on CBI Case No.44/11 36 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj admission by the accused, as Ex.P30. There is no dispute on this position. However, the fact being that the amount of Rs. 50,000/ has actually been paid for the fixtures, the same has to be counted here along with the value of the property. The cost of the standard fixtures like tube lights, ceiling fans, geysers etc. can be ignored while computing ' Assets at the end of check period'
52. The accused has, however, denied any investment made in respect of the land in Khasra Nos. 564(15), 563 ( 06) and 571 ( 02), which has been valued in the charge sheet at Rs. 6 lacs. The contention of the accused is that although the agreement to purchase the said plot was entered into with Shri Sanjay Kaul who was the owner to the extend of 1/3rd share in the land, the deal was never finalized and no amount was paid in respect thereof.
53. The prosecution has proved an agreement executed between Sanjay Kaul and Ms. Anjali Bhardwaj on 03.12.2003 in respect of 1/3rd undivided share in the above mentioned land as Ex.PW17/A1, an affidavit of Sanjay Kaul to the effect that ownership right and possession has been handed over to Ms. Anjali Bhardwaj has been proved as Ex.PW17/A2. Ex. PW17/A3 is a receipt issued by Sanjay Kaul for a sum of Rs. 6 lacs in respect of the above sale. A separate possession letter signed by both Sanjay Kaul and Anjali Bhardwaj has been proved as Ex.PWE17/A4. A General Power of Attorney and a Will executed by Sanjay Kaul have also been proved as Ex.PW17/5 and CBI Case No.44/11 37 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj Ex.PW17/6 respectively. Shri Sanjay Kaul appeared as PW17 has duly proved the above documents.
54. However, PW17 has further stated in his examination in chief itself that he received the payment of above amount of Rs. 6 lacs through cheques which he did not encash. In his cross examination, PW17 stated that there was some dispute later on with Ms. Anjali Bhardwaj and therefore the cheques were not encashed and the agreement of the sale of the above said property was cancelled. He has also proved the sale deed executed by all the three share holders, on 12.08.05 in favour of one Smt. Promilla , as Ex. PW17/D1.
55. The Ld. Prosecutor has contended that the subsequent sale is after the registration of the case and it raises a suspicion that a cancellation of the deal between Sanjay Kaul and Anjali Bhardwaj and the resale of the property is collusive and an after thought. He has argued that as on the date of culmination of check period i.e. 10.03.04, the property was held by the accused Ms. Anjali Bhardwaj under the proven documents i.e. E.xPW17/A1 to Ex.PW17/A6.
56. In order to prove acquisition of assets, after the prosecution discharges its initial burden of Prima Facie proof the accused has an opportunity to offer his own explanation in respect thereof. Once a plausible explanation is offered, the burden shifts back on the prosecution to show that the explanation is not satisfactory. It is also well settled that the burden on the accused is not as heavy as it is on the CBI Case No.44/11 38 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj prosecution and that the accused does not have to prove his explanation 'beyond reasonable doubt' ( as held in V.D. Jheingem V. State of UP. (1996) 3 SCR 736 and followed by court till date) . This is the scheme envisaged under Section 13 (1) (e) of Prevention of Corruption Act and Section 101, 103 and 106 of the Indian Evidence Act.
57. Applying this test to the present situation, it is prima facie proved by the prosecution that 1/3rd undivided share in the above described piece of land was agreed to be purchased by the accused on 03.12.2003. However, the accused has offered an explanation that the deal was cancelled and the cheques given in respect thereof were never encashed. The two cheques for Rs. 3 lacs each, both dated 03.12.03 issued in favour of Sanjay Kaul have been placed on record by the accused as Ex.PW21/DC and Ex.PW21/DD respectively. The said stand of the accused is also corroborated by the seller namely PW17 Sanjay Kaul. The receipt which is proved as Ex.PW17/A3 mentions two cheques numbers 222279 of P & Sind Bank, Babarpur for Rs. 3 lacs and cheque no. 530944 drawn on UCO Bank, Delhi separately for Rs. 3 lacs. PW21/DC and Ex.PW21/DD are the same two cheques which bear cross line as a mark of cancellation and do not bear any endorsement of their being presented to the bank. Moreover, as per the sale deed Ex.PW17/D1, the property has been resold by the original sellers themselves , and not, by the accused. I, therefore, find the explanation offered by the accused quite plausible.
CBI Case No.44/11 39 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj
58. The prosecution has not adduced any other evidence to show that despite the above, the property was infact held by the accused as on 10.03.04 or that she resold it to the original sellers after registration of the case. I am, therefore, inclined to grant this benefit of exclusion of amount of Rs. 6 lacs from the column 'Assets after the check period' in favour of the accused.
59. In view of the above discussions, the total immovable assets with the accused at the end of check period would be as follows:
1. House No. A 1/66, Panchsheel Enclave New Delhi. Rs. 9 lacs
2. Shop No. 811 Nehru Place, New Delhi Rs. 70,000/ Total ______________ Rs. 9,70,000/ ( 'B1') _________________
60. Movable assets at the end of check period :
Under this head, once again most of documentary evidence produced by the prosecution has already been admitted by the accused. She has only disputed the amounts of the total bank balances as projected by the IO, the amount of cash stated to be recovered at the time of raid , the amount of investment with regard to the FDR of Jain Cooperative Bank and the cost of household articles found at the time of search, as projected in Ex.PW1/B. The jewellery recovered from the locker as already been held to be purchased prior to the check CBI Case No.44/11 40 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj period and therefore its value cannot be added in this column.
61. With regard to the bank balances, the IO has projected the balance amount of Rs. 3,35,531/ as the sum of last balances in a total of twelve (12) bank accounts held in the name of the accused. The statements of account and the account opening forms are all admitted documents which have been proved as Ex.P6 to Ex.P11 and Ex.P13 to Ex.P16. The only objection raised by Ld. Defence Counsel in this regard is to the inclusion of an amount of Rs. 64,438.62/ which are stated to be amount of interest accrued in the PPF account of the accused.
62. However, in case of all the saving accounts etc., it is the last balance as on 10.03.94 that has been taken into account by the IO which, obviously includes the interest accrued from time to time. Since the accrued interest entries are easily identifiable, the said interest have been taken under the head of ' income of the accused' during the check period. With this uniform approach, by eventually subtracting the income from the assets held after the check period, the investment made by the accused during the check period will be correctly calculated. Since there is no dispute on the actual balances of Rs. 1,48,749/ as on 10.03.1994 in the PPF Account No. 1027 of the accused with State Bank of India, Tis Hazari, I find this contention totally untenable.
63. Next comes the amount of cash recovered from the accused at the time of raid which is taken by the IO at Rs.
CBI Case No.44/11 41 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj 96,000/. The same is duly proved through the seizure memo Ex.PW1/A and the punchnama Ex.PW1/C. Both the documents have been proved by PW1 Shri Ramesh Kumar, the independent witness of the search and the initial IO PW16. As per these documents, the cash amount of Rs. 59,000/ was recovered from the floor occupied by the accused ( entry No. 17 in Ex.PW1/A) and another amount of Rs. 37,000/ , as stated to be thrown on the ground floor, as per entry no. 24 in Ex.PW1/C.
64. The contention of the accused is that the amount of Rs. 50,000/ out of the above amount belong to one Shri S.K. Bhardwaj who was present at the house at the time of raid. It is also contended that Shri S.K. Bhardwaj filed an application in the court later on for withdrawal of said amount but the application remain undecided. Shri S.K. Bhardwaj has later on expired. Ld. Counsel has argued that Shri S.K. Bhardwaj was not allowed to protest at the time of the raid. This is evidenced from the fact that his signatures were not taken on the seizure memo , as was mandatory since his presence is not denied. In these circumstances, the first opportunity available to him was to file an application before the court which, he did.
65. On going through the documents Ex.PW1/A and Ex. PW1/C and contextually perusing the statements of concerned witnesses, I find this contention of accused totally baseless and highly improbable. The only thing that has come in evidence about S.K. Bhardwaj is his presence at the time of raid. The evidence does not show that he had at any time claimed this CBI Case No.44/11 42 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj amount of Rs. 50,000/ before the then IO or even before the subsequent IO after the previous IO was transferred. Then, the amount of Rs. 96,000/ has been recovered from two different places and neither of them is a consolidated amount of Rs. 50,000/. Accepting the contention of the accused would mean that the said S.K. Bhardwaj distributed the amount of Rs. 50,000/ that he was carrying by throwing Rs. 37,000/ on the ground floor and mixing the remaining Rs. 13,000/ with the money belonging to the accused.
66. The prosecution has proved the total recovery of Rs. 96,000/ . The total amount is not even disputed by the accused. If the accused wishes to prove that out of this amount, Rs. 50,000/ belong to S.K. Bhardwaj, merely proving that S.K. Bhardwaj was present in the house, is certainly not sufficient, however, light the burden of proof on the accused might be. I have, therefore, no hesitation in rejecting this contention of the accused.
67. The next dispute is on the amount invested in Fixed Deposit with Jain Cooperative Bank. The FDR has been proved as Ex.P25/A4 and the existence of the same has been admitted by the accused. The said FDR for Rs. 45, 743/ is in the name of Eshu Bhardwaj and Anjali Bhardwaj, issued on 25.10.03 and bear the stamp on the top 'RENEWED'.
68. The contention of the accused is that the original amount invested only is Rs. 25,000/ and that too, invested by her sister Eshu Bhardwaj who is the first beneficiary. The accused CBI Case No.44/11 43 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj contends that she has not invested any money in this at all. Moreover the initial investment having Rs. 25,000/, interest have been accrued from time to time when the FDRs had been renewed in the past. But, the said interest have not been included in her income during the check period.
69. The contention of the accused that the initial investment was Rs. 25,000/ appears to be correct, since the amount of Rs. 45,743/ obviously include the previous accrued interest at the time of its renewal. There being no record of actual amount of interest earned, it is certainly expedient to include only originally invested amount under the present head. However, the accused has not proved by any evidence that the whole of the amount of Rs. 25,000/ was invested by her sister Eshu Bhardwaj. Just being the first beneficiary does not by itself imply this. In such circumstances, I am inclined to take the value of the investment made by the accused at half the initial investment i.e. at Rs. 12,500/.
70. The accused has further disputed the computation of value of house hold articles found at the time of raid by the IO at Rs. 2,92,261/. This value is taken by adding up the value of each articles as mentioned by the IO in the inventory of house hold articles found in possession of the accused at the time of raid at her house on 10.03.04. The inventory has been proved by the search witness and the initial IO as Ex.PW1/B. It mentions the items found in the house, their date of acquisition, approximate value and has a column of remarks where the IO has indicated CBI Case No.44/11 44 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj against some items which were claimed by the accused to have been received as legitimate gifts or to have been provided by the builder of the house. The value of these items have not been included in the final computation.
71. The contention of Ld. Defence Counsel in this regard is that many of the remaining items also form part of the fixtures, provided by the builder, the cost of which has already been included in her investments under the head 'Movable Assets found after the check period'. His further contention is that once 1/3rd of carry home salary of the accused has been taken as 'house hold expenses', the articles of food and clothing along with children toys etc. cannot be included under this head. Ld. Prosecutor does not seriously dispute the contention to exclude the food items but has argued that the remaining items have been rightly included by the IO.
72. Both sides have also advanced arguments on the percentage of income that can be taken as non verifiable house hold expenses. This shall be taken up while dealing with head of 'Expenses during the check period'. However, once some percentage of income is actually taken as spent on house hold expenses, I am inclined to agree with Ld. Defence Counsel that value of food items as well as wearing cloths etc. have to be excluded from the present head.
73. So far as fixtures is concerned, the IO has excluded four fancy light, four ceiling fans, one geyser, as provided by the builder. The Ld. Defence Counsel additionally seeks exclusion CBI Case No.44/11 45 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj of two A.Cs, curtains, wireless telephone sets, washing machine, wooden show case and an inverter from this list.
74. On going through Ex.PW1/B, I do find that it includes even the cost of vegetables, cooking oil, fruits, dry fruits and other grocery items that were found in the house at that time, which certainly have to be excluded. The cost of wearing cloths also has to be excluded as covered under 'Household expenses'. Other exclusions can be items of legitimate gifts as mentioned in the memo itself. While ceiling fans, fancy light, curtains and wooden showcase etc. can reasonably expected to have been provided by the builder as fixtures, I am not inclined to exclude ACs, washing machine, inverter, telephone equipment etc., in the absence of any specific evidence led by the accused in this regard.
75. The items thus to be included under this head with their value would be as follows:
Sl Name of item Date of Approx. Value
No. Acquisition in
year
1. Double Bed 2000 Rs. 8000/
2. Two Mattresses 2000 Rs. 1500/
3. One VIP Suit Case ( Sky Bag ) Feb 2004 Rs. 2000/
4. One VIP Galaxy Safari Feb 2004 Rs. 1000/
5. Carpet 2000 Rs. 200/
6. One Room A/c 1999 Rs. 7000/
7. Steel Almirah 2001 Rs. 4000/
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8. TV Samsung ( Colour) 21" 2000 Rs. 14,000/
9. TV Trolly with Show case 2001 Rs. 3500/
10. Dressing Table 2000 Rs. 5000/
11. Telephone Set ( Cordless 2001 Rs. 1700/ Sony)
12. Caller ID Power Phone 2002 Rs. 700/
13. W.L.L. Set 2002 Rs. 1000/
14. Toys of Children 20022004 Rs. 2500/
15. 4 Bed Sheets with pillow 19972004 Rs. 1200/ Cover
16. Mobile NOKIA set 1997 Rs. 2000/ Bed Room No. 2 Sl. No. Name of the Item Date of Approx. Value Acquisition in year
17. Double Bed 199697 Rs. 6000/
18. Two Matresses 199697 Rs. 2300/
19. Blanket 19992000 Rs. 1000/
20. Four Chairs 199697 Rs. 1500/
21. Plastic Chairs4 1997 Rs. 1000/
22. Computer Set...... with 2001 Rs. 20,000/ Printer
23. Wooden Table 2001 Rs. 1200/ Bed Room No. 3 Sl. No. Name of the item Date of Approx. Value Acquisition in year CBI Case No.44/11 47 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj
24. Old Crockery 19962000 Rs. 1500/
25. Old & New Books ( Law) 19942001 Rs. 1600/
26. Heat Convector 1999 Rs. 800/
27. Washing Machine 2000 Rs. 6800/ ( Samsung) Drawing Room
28. Dinning Table 2001 Rs. 10,000/
29. Sofa Set 7 seater 2000 Rs. 6000/
30. Music System Panasonic 1998 Rs. 7000/
31. Air Conditioner 2000 Rs. 12,000/
32. Corner Flower Stand 2001 Rs. 200/
33. 20 Pot 6 Plant 20002003 Rs. 800/ Kitchen
36. Fridge SAMSUNG 360 Ltr. 2000 Rs. 15,000/ Double Door
37. Gas Stove ( 4 Burner) 2003 Rs. 2000/
38. 35 glasses steel, 15 thali, 19992003 Rs. 800/ 10 plates, 20 bowels, 20 spoon
39. Crockery 2003 Rs. 400/ Jewellery Sl. No. Description Weight Approx. Value ( Approx.)/Acqu CBI Case No.44/11 48 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj isition /Mode
40. Bunde/Earings ( 10 pairs) 20gms Rs. 9000/ 19901996 onward
41. Pendent Set without 10 gms/1995 Rs. 4600/ chain ( Two set) onward
42. One Gold Chain 15 gm/1995 Rs. 6200/ onward
43. One Golden Pendent Set 10 gm/1995 Rs. 4,000/ with Chain onward
44. Two ear golden chain set 4 gm/1994 Rs. 1500/
45. 5 golden chain 8 gm/2000 Rs. 4000/
46. One golden Chain 10 gm/1998 Rs. 4600/ Store Room
47. One Inverter Local make 2001 Rs. 5000/
48. One Diwan 2000 Rs. 600/
49. One Gas Stove ( old) 1999 Rs. 200/ Total Rs. 19190/
76. Total movable assets found with the accused at the end of check period would therefore be as follows:
1. NSCs : Rs. 1,04,000/
2. KVPs : Rs. 30,000/
3. Balance in various banks : Rs. 3, 35, 531/
4. Bonds of ICICI : Rs. 50,000/
5. Bonds of IDBI : Rs. 20,000/
6. Fixed Deposit with Jain Cooperative Bank Ltd. : Rs. 12,500/ CBI Case No.44/11 49 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj
7. Investment in LIC Policy No. 120406720 : Rs. 86,241/
8. Investment in LIC Policy No. 112770991 : Rs. 39,008/
9. Investment in LIC Policy No. 111077867 : Rs. 34, 979/
10. Cash Recovered : Rs. 96,000/
11. Cost of house hold articles : Rs. 1,91,900/ Total : _______________ Rs. 10,00,159/ ( B2) _________________ Total assets at the end of check period = B1 + B2 = Rs. 9,70,000 + Rs. 10,00,159 = Rs. 19,70,159/ ( B)
77. Income during the check period While the accused has admitted the incomes projected under this head in the chargesheet and has claimed the benefit of some more income under various heads, the prosecution during the arguments, disputed the inclusion of the total amount of Rs. 3,11,000/ as receipts from cancellation of membership of the Naval Technical CoOperative Housing Society on the ground that half of this amount belongs to the mother of the accused. It is also contended that if the half amount of Rs. 1,55,000/ was a gift from the mother, the same was not intimated by the accused to her department as required CBI Case No.44/11 50 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj under the service rules. However I find that as per the documents filed by the prosecution itself, the cheque of Rs. 3, 11,000/ as a total refund amount was made in the name of the accused and has been deposited in her own account. The ownership of half of the amount by the mother of the accused on the ground that she originally contributed half amount is not for this court to go into. Further, the prosecution has itself produced the service book of the accused which was admitted by the accused and marked as exhibit P36 (collectively) and which contains the declaration of assets held by the accused wherein, the membership of the Naval Technical CoOperative Housing Society is also declared. I therefore find no force in the contention of the learned Senior Prosecutor in this regard.
78. The accused has claimed that the interest earned by the accused during the check period in various savings bank account has not been properly calculated. As per the accused the exact calculation chart was prepared by her and was put to the IO during his evidence as a exhibit PW 21/D G wherein the interest amount came to Rs. 1,46,792.56/. The Ld. prosecutor has with the written arguments filed by him, annexed a chart showing the total income earned by the accused in various bank accounts and as per the prosecution, the said interest has been correctly computed at Rs. 85,593/. The learned defence counsel does not agree with this chart but in order to avoid lengthy calculations of small amounts, during the course of final arguments, he agreed for the amount of Rs. 85,593/ to be taken CBI Case No.44/11 51 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj as the interest earned by the accused during the check period.
79. Learned defence counsel has also sought inclusion of Rs. 96,054/ as the maturity value of the FDR of Rs. 80,000/ which was purchased and encashed during the check period and the purchase amount of which, is already included under the head "expenses during the check period" in the chargesheet.
80. It is noticed that an amount of Rs. 80,000/ is indeed mentioned under the head "expenses during the check period"
as the money invested by the accused in an FDR of the United Commercial Bank, Patiala House. The prosecution has produced a witness PW8, Shri Dilip Khanna, an official of the said bank who has proved the account opening form and the statement of account in respect of the account held by the accused in the bank. He did not depose about this investment in particular in his examination in Chief. It is only the accused herself who confronted him with a document D - 11 which is a letter dated 18th of March 2005 by the manager of the bank to the IO intimating that an FDR number 047698 dated 22nd of April 1999 Rs. 80,000/was issued by the bank in the name of Anjali Bhardwaj which, after two renewals, was lastly paid for Rs. 96,054/on 7th of June 2001. The letter has been proved as exhibit PW8/DX.
81. The inclusion of Rs. 80,000/ as expenditure by the accused, is therefore based on a document proved by the accused herself and there is no reason why the corresponding CBI Case No.44/11 52 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj income mentioned in the same document should not be counted. I am therefore satisfied that this income of Rs. 96054/ has to be included under the head of "income during the check period".
82. Next contention of the learned defence counsel is to include an income of Rs. 3 lakhs stated to be the rental income received by the accused in respect of her house at Sushant lok. This is claimed on the ground that a photocopy of a lease deed stated to be executed by the accused in favour of Narendra Service Station was produced and was admitted by the IO and therefore proved as exhibit PW 21/DH. The learned counsel has also pointed out that the initial IO PW 16 has admitted in his cross examination, that there is an entry of Rs. 3 lakhs from Narendra service centre in the statement of account of the accused with the Syndicate Bank, which was a part of the document D38.
83. The contention has been vehemently opposed by the learned prosecutor on two grounds. One is that just by producing a photocopy of a lease deed, the accused cannot be said to have proved the fact of leasing out the house at the rental value described in the photocopy. The second ground is that this income having not been intimated by the accused to her department under the relevant rules, cannot be counted in view of the explanation to section 13(1)(e)) of the Prevention of Corruption Act.
84. There is considerable force in the argument of the CBI Case No.44/11 53 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj learned prosecutor that the fact of lease does not stand proved by merely putting a photocopy to the IO, without examining the executants thereto. The Ld. defence counsel has contended that it is not the fact of the lease but the income from the same which is important and that has been proved by the entry at point A on the document D 38, which is a part of the statement of account of the accused with Syndicate Bank New Delhi. However on going through the document, I find that the entry at point A is dated 19th of August 2000 and shows Rs. 3 lakhs received by way of a cheque from "service centre". It does not specifically mention the name Narendra service centre. It cannot therefore in the absence of any evidence led by the accused, be said that this entry pertains to the rent for the property belonging to the accused at Sushant Lok. Moreover, the photocopy produced on record shows a rental value of Rs. 10,000 per month with effect from the date of lease that is 7th of November 1999. The lease is stated to be for a period of two years. The total lease amount would therefore come to Rs. 240000/in two years time. An entry of Rs. 3 lakhs, nine months after the execution of the lease deed does not fall in place here. The plea of the defence to include this sum of Rs. 3 lakhs as rental income of the accused is therefore an afterthought and being totally unsustainable is hereby rejected.
85. Another argument raised by the prosecution in respect of the computation of income needs to be noted here. The learned prosecutor has vehemently argued that the instances of income CBI Case No.44/11 54 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj which have not been intimated by the accused to her department as required under the CCS conduct rules cannot be taken into account as her income during the check period, in view of the explanation attached to section 13 (1)(e) of the Act. He specifically referred to the income as claimed on maturity of the FDR and the income received by way of refund from the Naval Technical Housing Society. He has argued that the plain reading of the explanation would show that all incomes as claimed by the accused but not duly intimated to the Department have to be excluded from the purview while computing assets disproportionate to the accused's known sources of income. He cited a judgement passed by the Hon'ble Supreme Court in P.Nallamal versus state reported as AIR 1999 SC 2556.He has relied upon the following observations of the Hon'ble Supreme Court in Paragraphs 19 and 20 of the said judgment:
19. If the public servant satisfies the court that the excess wealth possessed by him is attributable to the dowry amount which he received from the fatherinlaw of his son the public servant is not liable to be convicted under the aforesaid clause.
After quoting the above example cited at the bar, the Hon'ble Supreme Court rejected the contention in paragraph 20 as follows:
20. The above contention perhaps could have been advanced before the enactment of the PC Act 1988 CBI Case No.44/11 55 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj because section 5 (1) (e) of the old PC act did not contain an "explanation" as section 13 (1) (e) now contains. As per the explanation the "known sources of income" of the public servant, for the purpose of satisfying the court, should be "any lawful source". Besides being the lawful source the explanation further enjoins that the receipt of such income should have been intimated by the public servant in accordance with the provisions of any law applicable to such public servant at the relevant time. So a public servant cannot now escape from the tentacles of section 13 (1(e) of the PC act by showing other legally forbidden sources, albeit, such sources are outside the purview of clauses (a) to (d) of the subsection.
86. It may however be seen that the explanation only defines inclusively, the expression "known sources of income"
appearing in the main clause. The scope and ambit of the explanation cannot be expanded beyond that. It has already been held in various judgments including M.Krishna Reddy (supra) that "known sources of income" means the sources known to the prosecution. What it would therefore mean is that the accused may be prosecuted in case the assets in his possession are found to be disproportionate to the income which he has received as salary and other income if any, in case the said other income is duly intimated to the Department, because that is the primary source from where the investigator would gather his information about the income of the accused.
CBI Case No.44/11 56 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj However, once again has held in M Krishna Reddy (supra), it is not mere acquisition of the property that constitutes the offence but it is the failure of the accused to satisfactorily account for such possession. The accused therefore, still has an opportunity to explain that particular undisclosed income. If no other sources of income even if properly proved and explained by the accused are to be taken into consideration, this important ingredient that is the explanation of the accused not being found satisfactory becomes totally redundant.
87. The observations in the case of P Nallamal supra are clearly made in the context of the source not previously disclosed by the accused being unlawful. An accused person certainly cannot claim the benefit of income derived from unlawful sources. The judgement does not appear to lay down a universal rule that in all cases any income which is not disclosed to the Department even though it may have been earned lawfully, has to be excluded.
88. In Virender versus Central bureau of investigation (W.P (criminal) numbers 765/2010 and 871/2010, decided on 22nd of November 2010), the Hon'ble High Court of Delhi has in respect of the explanation, observed as follows:
24. - - - Read in this manner, the explanation to section 13 (1) (e) of the PC act 1988 is merely procedural and not substantive and it does not create a new offence. The effect of the explanation is to clarify and reinforce the existing position and understanding of the expression CBI Case No.44/11 57 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj "known sources of income" that is, the expression refers to sources known to the prosecution and not sources known to the accused. The second part of the explanation does away with the need and requirement for the prosecution to conduct an openended or rowing inquiry or investigation to find out all alleged/claimed sources of income of an accused who is investigated under the PC act, 1988. The prosecution can rely upon the information furnished by the accused to the authorities under the law, rules and orders for the time being applicable to a public servant. No further investigation is required by the prosecution to find out known sources of income of the accused public servant.
As noticed above, the first part of the explanation refers to the income received from legal/lawful sources. This first part of the expression states the obvious as is clear from the judgement of the Supreme Court in N. Ramakrishnaiah (supra).
25. - - - But the explanation does not enact or create an absolute prohibition/bar to curtail the right of the accused public servant to satisfactorily account for the assets. Similarly, the explanation does not alter or change the law on what, or which assets, the accused/public servant are required to account for. The assets can be those which have been disclosed and also other assets which are not disclosed by the public CBI Case No.44/11 58 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj servant but there is evidence that the assets are possessed, belongs to or held by the accused public servant. The law on the said aspect has not undergone a change or altered by the introduction of the explanation.
89. The legal position therefore clearly is that nondisclosure of any particular source of income to the department while the accused is in service, does not by itself debar the accused from proving that the said income was actually possessed by him and lawfully so. The two instances of the income as claimed by the accused here, and objected to on behalf of the prosecution are both clearly proved from the documents produced by the prosecution itself and more so when the corresponding investment has been included by the prosecution while computing the expenses incurred by the accused during the check period. Both, the income as maturity value of the FDR and the refund from the housing society are lawful incomes and therefore their inclusion under the present head cannot be frowned upon.
90. There are certain other items of income by way of interest earned on various term deposits which were invested and also encashed by accused during the check period. Some of them were pointed out to the IO who admitted that the same had not been taken into account but offered an explanation that it was because the said income were not found duly intimated by the accused to her department.
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91. In view of legal position as culled out above, non disclosure of lawful income does not debar its being accounted for in computation of income in a case under Section 13 (1) (e). However, since in most of the cases what is pointed out from the statement of account is the total maturity value of the term deposits , the exact interest earned in all the said cases is not clearly discernible. It is, therefore, not possible to add the amount of interest earned on those term deposits under this head of 'income during the check period', but a suitable allowance for the same can be made , if required, in the final calculations.
92. The remaining items not being in dispute, the total income of the accused during the check period may be computed as follows:
Sl. No. Description Amount
1 Income from carry home salary Rs. 12,40,895
2 House Loan from HDFC ( A/c No. 577618) Rs. 6,00,000/
for purchase of house at Sushant Lok
3 House Loan from HDFC ( A/c No. 602514) Rs. 3,50,000/
for construction of house at Sushant Lok 4 Income by sale of house No. C1618, Rs. 30,00,000/ Sushant Lok, Gurgaon.
5 Income by sale of land at Kapashera Village Rs. 3,25,000/ ( Khasra No. 79 & 80) 6 Income from refund of advance from Naval Rs. 3,11,000/ Technical Cooperative Housing Society, Dwarka 7 Survival benefit of LIC Policy No. Rs. 60,000/ CBI Case No.44/11 60 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj 120406720 8 Survival benefit of LIC policy No. 111077867 Rs. 12,500/ 9 Interest from saving accounts Rs. 85,593/
10. Maturity value of FDR of UCO Bank Rs. 96,054/ Total income during the check period = Rs. 6081042/ ( C) .
93. Expenses during the check period Under this head, a total expenditure of Rs. 7348796/has been projected by the prosecuting agency, as per the details in the table D mentioned in paragraph 29 of this judgement. Out of the 22 entries under this head, as indicated in paragraph 29 itself, the following items of expenses have not been proved either by oral or by documentary evidence:
serial item of expenditure Amount number 8 Transfer charges for purchase of shop Rs. 5 3050/ 10 Payment of telephone bill number 264 Rs. 1 1983/ 8920 12 Payment of telephone bill number 2649 Rs. 1 7013/ 8282 13 payment of telephone bill number 2649 Rs. 1 3883/ 7736 15 Payment of water bills Rs. 1 732/
94. The above items having not been proved by the prosecution and consequently, no questions having been asked to the accused in her examination under section 313 Cr.P C, can obviously not be counted for the purpose of computing the CBI Case No.44/11 61 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj expenses made by the accused during the check period.
95. Many of the remaining items have been fairly admitted by the accused during examination under section 313 CR PC as well as in her final arguments. The computations disputed by her may now be considered one by one.
96. Household expenses/kitchen expenditure The investigating agency has taken the household/kitchen expenditure of the accused over a period of 10 years at a flat rate of one third of the carry home salary. As per the learned special prosecutor, the same has been taken in view of the judgement of the Hon'ble Supreme Court in Sajjan Singh versus state of Punjab (supra). He has argued that there being no other authentic way of calculating the household expenses, one third of the carry home salary is being taken for this purpose in all similar cases. The ld defence counsel on the other hand has strongly contended that no such ratio can be culled out from Sajjan Singh's case. He agrees that it is not possible to accurately determine the household/kitchen expenses when they are spread over a long check period, but strongly refutes its computation at a flat rate of one third of the salary. He has further argued that the accused had been living with her mother and brother for most of the time during the check period and in fact, did not have to spend anything on account of kitchen expenses.
97. On going through the judgment in Sajjan Singh, I find that the Hon'ble Supreme Court did take Rs. 36,000/as the CBI Case No.44/11 62 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj minimum household expenses that the appellant therein would have incurred out of his total income of Rs. 103000/. This does approximately come to around one third, but the Hon'ble court has not laid this down as a rule. Then, as per the observation of the Hon'ble Supreme Court, this amount must have been spent by him for maintaining himself and his family.
98. While the assets held by somebody as on a particular date and the income earned by him in a particular period of time can be assessed with some accuracy, assessment of the cash on hand held by him at the beginning of the period and the household expenses during the period, which are by their very nature, nonverifiable, is always a mere guesswork. A person earning a moderate salary and having a large family to support, will use up all or most of his income in the daytoday routine household expenses and on the other hand, somebody earning a good income and having nobody else to support, may save a large part of it.
99. In the case on hand, there is no dispute that the accused Ms Anjali Bhardwaj was single at least up to the year 2000 and the address mentioned in her service book, is that of her mother. Her brother also is and had during the said period, been in employment and it is therefore more likely that the accused did not have to contribute to the household expenses. For this reason and also, for the reason that any cash which the accused might have had in hand before the check period and which might have been spent by her on herself during the check CBI Case No.44/11 63 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj period has not been taken into account, I am inclined to grant a benefit of one third of the amount taken by the IO under this head which would come to about Rs. 1 35000/. Accordingly I take the household/kitchen expenditure of the accused during the check period as Rs. 278631 or to round off, as Rs. 2 80000/
100. Electricity Bills The accused has next denied making any payments towards electricity bills proved as exhibit CW1/C and exhibit CW1/D. The bills have been proved on record by the court witness CW1, Sh. RS Mehta an employee of BSES. However, the bills are in the name of Manohar Lal and Sukhdev Lal and not in the name of the accused. The learned defence counsel has strenuously argued that there is no evidence on record to show that the payment against these bills has been made by the accused. However, all the bills proved as exhibit CW1/D (collectively) pertain to the electricity meter fixed at the premises A1 - 66, first floor, Masjid Moth New Delhi which, as admitted by the accused and as proved through the sale deed exhibit P26 dated 12th June 2000, belonged to the accused during the period the said bills were raised. Once it has been proved by the prosecution that the aforesaid bills have actually been paid, the onus would shift to the accused to prove that they had been paid by somebody else for her. In that case, she would have a lot of explaining to do over the propriety of accepting payments of electricity bills from some stranger. In the absence of any such assertion by the accused, she cannot CBI Case No.44/11 64 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj claim exclusion of the proven amount of Rs. 3 2591/ against her electricity consumption.
101. The next item of expenses disputed by the accused is the cash amount of Rs. 6 lakhs stated to have been given by her to her brother Anjum Bhardwaj for construction of the house at Babarbur, Shahadara. The prosecution has sought to prove this expense by proving the personal file of Anjum Bhardwaj maintained in his office which contains a declaration made by him to his department that he had obtained a sum of Rs. 6 lakhs from his sister, Anjali Bhardwaj. The record has been proved by PW5, Rajeev Kumar working as LDC in the office of internal audit department of the MCD Delhi. However Anjum Bhardwaj himself deposed in the case as a prosecution witness, PW6. He did admit the declaration and the application given by him but denied having actually received the amount of Rs. 6 lakhs from his sister. No further explanation was asked of him with regard to his making a false declaration to his department.
102. Accordingly what has been proved by the prosecution in this regard is only that Anjum Bhardwaj made a declaration to his department that he had received Rupees six lakhs from Anjali Bhardwaj. In the face of denial of the transaction in the court by both Anjum Bhardwaj and Anjali Bhardwaj, I do not think that the transaction itself has been proved. A statement made by Anjum Bhardwaj to his own department without any apparent endorsement or acknowledgement by the accused Anjali Bhardwaj, cannot be used to pin this responsibility on CBI Case No.44/11 65 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj her. I am therefore inclined to grant this benefit of exclusion of this amount of Rs. 6 lakhs from the expenses made by the accused during the check period.
103. The accused has then disputed the inclusion of an amount of Rs. 1 675000/mentioned at serial number 19 of the table under the head of "Expenses during the Check Period". The said entry has been proved by the prosecution by producing 17 cheques totally amounting to 1675000/issued by the accused in the name of one Dimple Anand. No witness has been produced by the prosecution to prove these cheques. However the cheques as filed by the prosecution, have also been admitted by the accused under section 294 CRPC and have therefore been proved as exhibit PW 21/A1 to exhibit PW 21/A
17. The chargesheet does not mention as to what particular expense, these cheques were issued for. The prosecution has only tried to prove that the cheques were not likely to have been paid on account of construction of the house of the accused at Sushant Lok.
104. The accused has on the other hand, explained that these cheques were issued in the name of Dimple Anand for the purpose of making payment to the, builder who had constructed her house bearing number 1618 block C, Sushant Lok Gurgaon Haryana. She has contended that the cost of construction of the house has already been taken as Rs. 21 lakhs in expenses and therefore, the amount of the cheques cannot be separately added once again. Her stand finds corroboration CBI Case No.44/11 66 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj from that depositions of the prosecution's own witness PW 19, Sunil Kumar. He has deposed that he had taken up the civil construction work of the house at Sushant lok. He has further stated that Dimple Anand used to come to the site to make payments to him for the construction work. In his cross examination by the Ld. prosecutor, PW 19 denied that he had earlier stated to the CBI that he did not know any person by the name of Dimple Anand or that no such person existed. He was also crossexamined by the accused wherein he stated that he was actually a subcontractor and the main contractor was one Surender Gupta.
105. The next witness produced by the prosecution to prove that this amount was not meant for construction of the house, is PW 20, Bhavnesh Gupta who is the son of Surendra Gupta. He has deposed that his father expired when he was only 18 years old. He deposed that his father never did construction business and that there was no employee by the name of Dimple Anand working with his father. He however admitted that his father was in the business of buying and selling properties and beyond that, he did not know much about his avocations.
106. Considering both the above depositions on record, I agree with the learned prosecutor that due to the contradictions between the depositions of PW's 19 and 20, it cannot be said to be proved with certainty that the cheques were issued by the accused for construction of the house. The doubts raised by him on the story put forth by the accused may be real. However the CBI Case No.44/11 67 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj initial onus in this regard was not on the accused. The prosecution has to prove expenses made by the accused during the check period for particular goods or services. The withdrawals from the bank could generally be used as supporting evidence of the particular expenditure. For example, if a particular investment has been proved by the instrument of such investment, payments made for the same through cheques cannot be separately counted under the head of expenses.
107. In case of all other items under this head, the prosecution has correctly taken the value of the particular expenditure and has sought to produce evidence including, the evidence of the payments made, in order to prove the said expenditure. In this case however, the prosecution has solely relied upon the payment made through cheques and has counted this as a separate expenditure. Then comes the turn of the accused to offer an explanation which she has done. Her explanation is duly corroborated by the evidence of at least one of the two witnesses examined by the prosecution itself. There is no further evidence led by the prosecution to rebut this. I'm therefore inclined to accept this explanation by the accused as satisfactory. The expense of Rs. 16.75 lakhs is therefore to be excluded from this head.
108. The next item disputed on behalf of accused is the payment of Rs. 3,11,000/ as membership fee of Naval Technical Coop. Housing Society. It is contended that half of the amount i.e. Rs. 1,55,000/ has been paid by the mother of the accused CBI Case No.44/11 68 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj and the investment of the accused can be taken only to the extent of the other half i.e. Rs. 1,55,000/.
109. The investment in the membership of above society has been proved by the prosecution by way of a letter dated 19.11.2004 addressed to Deputy Superintendent of Police, CBI by President of the Society Shri Mohan Lal giving details after her membership was terminated. Also enclosed with the letter is a copy of ledger sheet showing the payment made on behalf of accused. The letter and its annexures were admitted by the accused under Section 294 Cr.P.C. and have been marked as Ex.P31 ( Colly).
110. The ledger sheet shows the amounts paid as follows:
1. Cheque No. 114732 dated 7.7.98 ( SBI) Rs. 1,55,000/.
2. Cheque No. 7077511 dated 24.06.2000 ( PNB) - Rs. 1,55,700/ The total amount is shown as Rs. 3,11,010/ .
111. In order to substantiate her stand that the later amount has been paid by her mother, the accused had confronted the IO ( PW21) with passbook of her mother Usha Bhardwaj in respect of her account no. 35408 with PNB, Shahdara. The passbook has been marked as Ex.PW21/DE. As per the entries in the passbook, check number 740775 issued in the name of Naval Technical Off CU for an amount of Rs. 1,58,000/ has been debited to the account of Mrs. Usha Bhardwaj on 08.07.2000.
112. In view of this clear evidence on record, I find the stand of accused justified and accordingly, the amount of investment in CBI Case No.44/11 69 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj the membership of the housing society as shown at Sl. No. 22 of the table ' Expenses during the check period' shall be taken as Rs. 1,55,000/.
113. The remaining items of expenditure have not been disputed by the accused. Accordingly the final calculation of expenditure during the check period would be as follows : Expenditure during check period Value ( in Rs. )
1. Household/kitchen expenditure Rs. 2,80,000/ ( taken as 1/3 of carry home salary)
2. Cost of purchase of house No. C1618 Rs. 7,71,620/ Sushant Lok
3. Cost of Purchase of land at village Kapashera including stamp duty for Rs. 2,82,500/ registration.
4. Cost of construction of house no. C1618 Rs. 21,00,000/ Sushant Lok, Gurgaon.
5. Stamp duty paid at the time of purchase Rs. 23,375/ of house at C1618, Sushant Lok by Ms. Anjali Bhardwaj.
6. Interest paid to HDFC Ltd. in account no. Rs. 46,455/ 602514 including processing and administrative charges.
7. Loan amount repaid to HDFC in Rs. 4,59,438/ account no. 577618 including fee and processing charges.
8. Expenditure on stamp duty and Rs. 68,000/ CBI Case No.44/11 70 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj Corporation tax of House No. A1/66, Panchsheel Enclave.
9. Payment of mobile bill of mobile no. Rs. 28,731/ 3230623
10. Payment of Electricity bills of House no. Rs. 32,591/ A1/66, Panchsheel Enclave
11. Payment of Medical charges at the Rs. 5000/ time of delivery of son of Ms. Anjali Bhardwaj.
12. Medical expenses of son of Ms. Anjali Rs. 3,792/ Bhardwaj
13. Purchase of FDR no. 047698, UCO Bank Rs. 80,000/
14. Loan repayment to HDFC Ltd. in Rs. 3,50,000/ account no. 602515
15. Membership fee of Naval Technical Rs. 1,55,000/ Coop. Housing Society, Dwarka.
Total = _______________
Rs. 46,85,914/ D
________________
114. The Final Equation
As a result of the above discussions, the final position as proved on record is as follows:
(A) Assets before the check period - Rs. 148253 (B) Assets at the end of check period Rs. 1970159 CBI Case No.44/11 71 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj (C) Income during the check period Rs. 6081042 (D) Expenditure during the check period - Rs. 4685914 Unexplained assets may be calculated as follows:
( B + D) ( A + C) = Rs. 426778 B % of unexplained assets over total income= 426778 x 100 6081042 = 7.02 % B
115. The conclusion therefore is that the accused Anjali Bhardwaj was found in possession of unexplained assets of the value of Rs. 4 26778/. This comes to 7.02% of her total income during the check period.
116. However in a judgment reported as Krishnanand Agnihotri versus state of MP, (1977) 1 SCC 816, the Hon'ble Supreme Court has held that in case the assets possessed by the accused in excess of the surplus income are less than 10% of the total income, the same cannot be said to be disproportionate to his known sources of income. In another judgement in M Krishna Reddy versus state deputy Supt of police Hyderabad reported as (1992) 4 SCC 45, the Hon'ble Supreme Court did not accept the appellant's contention to grant a benefit of 20% of the total income on this count, but upheld the benefit of 10% granted by the Hon'ble High Court.
117. Going by the above position of law, in the case on hand, the accused's possession of excess assets to the tune of 7.02% of total income during the check period falls short of being termed as "disproportionate to her known sources of income" and CBI Case No.44/11 72 DOD: 12.11.2014 CBI Case No.44/11 RC no. AC1/2004/CBI/SPE/ACU1/New Delhi CBI Vs. Anjali Bhardwaj therefore, she cannot be convicted under section 13 (1) (e) of the Prevention of Corruption Act. Accordingly, the accused Anjali Bhardwaj is hereby acquitted of the charge against her in this case. Her Bail Bonds stand cancelled and the surety discharged. The accused shall however furnish fresh bail bonds u/s 437A Cr.PC, binding herself to appear before the Appellate Court if called,upto a period of six months from today. After furnishing bail bonds, the file be consigned to record room.
Announced in the open ( ALOK AGARWAL) Court on 12.11.2014 Special Judge, PC Act CBI Dwarka Courts, New Delhi.
CBI Case No.44/11 73 DOD: 12.11.2014