Delhi District Court
Cc 119/11 (Rc 1/07) Cbi vs . Ajay Kumar Shrotriya & Ors.. 1 on 23 October, 2013
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
CC No. : 119/2011
RC No. : 01/2007
PS : CBI/EOU-VI/New Delhi
U/s : 120B r/w 217, 420, 465, 468 IPC and 13(2) r/w 13(1)(d)
PC Act 1988 and substantive offences thereof.
Unique ID No. 02401R0046932009
C.B.I.
Versus
1. Ajay Kumar Shrotriya
S/o Shri G.S. Shrotriya
R/o B-578, MIG Flats, Loni Road, Delhi.
2. Bhagwant Singh
S/o late Shri Ram Lubhaya
R/o E-14, Guru Nanakpura,
Jail Road, Tilak Nagar, New Delhi.
3. Harvinder Singh Bindra
S/o Shri Harbans Singh Bindra
R/o WZ-153, G-Block,
Hari Nagar, New Delhi.
Date of FIR : 23.01.2007
Date of Institution : 31.01.2009
Arguments concluded on : 11.10.2013
Date of Judgement : 23.10.2013
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 1
JUDGEMENT
1. As per case of prosecution, a preliminary enquiry No. PE SIJ 2006 E 0003 was registered in CBI EOU-VI, New Delhi on 3-5-2006 against Shri Brij Pal Singh, Executive Engineer, West Zone, MCD and other unknown public servants and private persons in compliance to the order dated 20-04-2006 passed by the Hon'ble High Court of Delhi in WP (C) No. 4582/2003 (Kalyan Sanstha Vs. Union of India & Others) to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. The said enquiry was marked to PW7 SI Arvind Kumar and on the basis of his findings, a complaint dated 23.01.2007 (Ex.PW7/A) was forwarded to Superintendent of Police, CBI EOU-VI for registration of FIR u/s 120B IPC r/w Section 13(2) r/w 13(1)(d) of PC Act, 1988 and Section 465 IPC against Ajay Kumar Shrotriya, JE West Zone MCD and other private persons for investigation. An FIR Ex.PW18/A bearing RC 1/2007 was accordingly registered and investigated by PW18 Inspector N. Mahato. Fifteen separate charge-sheets pertaining to 15 different properties in West Zone, MCD have been filed by prosecution.
Accused Ajay Kumar Shrotriya, JE along with the owners/builders of the respective 15 properties have been arrayed as accused. It is interesting to notice that the premier investigating agency has only picked up the cases involving Ajay Kumar Shrotriya, JE who was on deputation from DDA to MCD from 06.05.02 to 30.09.03. No other officer from MCD i.e. JE/AE/EE/SE/DC has been charge-sheeted in any case defying the spirit of the order passed by the Hon'ble High Court pursuant to CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 2 which investigation was commenced. The nexus is deeper but only illusory investigation has been conducted giving a clean chit to many other officials involved.
2. In brief, the contents of complaint dated 23.01.2007 made by SI Arvind Kumar on the basis of preliminary enquiry conducted by him may be referred which forms the foundation of registration of FIR and subsequent investigation.
As per the complaint Ex.PW7/A by SI Arvind Kumar enquiries revealed that 15 properties were booked for unauthorized construction by Ajay Kumar Shrotriya, JE West Zone, MCD, New Delhi which are detailed as under:
1) D-16, Fateh Nagar, New Delhi
2) D-15, Fateh Nagar, New Delhi
3) 24/13A, Tilak Nagar, New Delhi
4) 15/11A, Tilak Nagar, New Delhi
5) 16/23, Tilak Nagar, New Delhi
6) 22/23, Tilak Nagar, New Delhi
7) WZ-30, Krishna Park, New Delhi
8) WZ-23, Krishna Puri, New Delhi
9) WZ-150B, Krishna Park, New Delhi
10)4 Industrial Area, Tilak Nagar, New Delhi
11) C-16, Vikas Puri, New Delhi
12)WZ-406R, Janak Park, New Delhi
13)B-3/84, Paschim Vihar, New Delhi
14)A-5/11, Paschim Vihar, New Delhi.
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 3
15)Shop No.19, New Market, Ramesh Nagar, New Delhi.
It is further alleged that Ajay Kumar Shrotriya made false notings that partial demolition of the properties had been carried out in pursuance of demolition orders passed in respective files. The fact that notings were false is stated to be corroborated on comparison with the entries made in demolition register maintained in MCD, demolition register of concerned police station, log books of the concerned vehicles of the MCD, the relevant letter of requisition for police force. It is further the case of prosecution that the enquiry also revealed that unauthorized construction files relating to above 15 properties were not taken out from the office of Officer In-charge (Buildings) {OI(B)} and entries were forged by Ajay Kumar Shrotriya having knowledge that no demolition had taken place.
As such, it is alleged that accused Ajay Kumar Shrotriya abused his official position to cause undue pecuniary advantage for himself or other private persons. Further, on the basis of Preliminary Inquiry, recommendation was made by SI Arvind Kumar for registration of regular case (FIR) against Ajay Kumar Shrotriya and other persons.
3. In the aforesaid background, on registration of RC (FIR) by CBI, the case was further investigated by PW18 Inspector N. Mahato and charge-sheet was filed u/s 173 Cr.P.C.
In nutshell, the case of prosecution on investigation, is that, CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 4 property located at 16/23AB, Tilak Nagar, New Delhi measuring about 269 sq. yds. was originally owned by Kishan Chand Allahabadi son of Shri Chaman Lal Allahabadi as per document registered as 7789, additional book no. 1, volume no. 1310, page 5 to 7 dated 03.11.1970 in the office of Sub-Registrar, Delhi. The further chain of sale of aforesaid plot has not been clearly depicted in the charge sheet but during course of arguments, it has been clarified by ld. PP as well as counsels for accused that a GPA dated 07.11.02 in respect of aforesaid plot was further executed by Shri K.C. Allahabadi in favour of Bhagwant Singh, Tejvir Singh and Trilochan Singh as per Mark PW9/A. Further, a GPA dated 11.11.02 (Mark PW18/DZ2) was executed by him in respect of ground floor in favour of Bhagwant Singh, Tejvir Singh and Harpreet Singh. It was further clarified that Trilochan Singh further executed GPA dated 18.01.03 (Mark PW9/B) in respect of his share in favour of Harpreet Singh. It is further the case of prosecution that Shri Bhagwant Singh and Shri Harvinder Singh Bindra built this property and sold the same to other persons in the form of flats.
The property was booked "on completion" by Ajay Kumar Shrotriya, JE for deviation/excess coverage against SBP No. 104/B/HQ/2000/91 dated 07.06.02. The building was further reflected to consist of GF,FF and Second Floor in FIR Ex.PW14/A dated 27.01.03. An endorsement was further made on the FIR by Shri Vinod Kumar, AE for issuing notice and taking necessary action as per DMC Act.
Accordingly, a show-cause notice u/s 344 DMC Act, 1957 CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 5 dated 27.01.03 (Ex.PW4/A) was issued to the owner/builder under the signatures of Shri Vinod Kumar, AE and thereby it was also directed to the owners/builders to stop the construction. The notice was served by way of affixation by Ajay Kumar Shrotriya, JE on 28.01.03 after seeking permission from the AE to serve the same by way of affixation. Since no reply was received in the office of MCD to notice dated 27.01.03 (Ex.PW4/A), a further notice u/s 343 (1) of DMC Act, 1957 dated 03.02.03 (Ex.PW4/B) was issued under the signatures of Shri Vinod Kumar, AE thereby directing the owner/builder of the property in question to demolish the unauthorized construction within six days of the receipt of the notice. The aforesaid notice was also served by way of affixation on 04.02.03 by Ajay Kumar Shrotriya in the presence of the witnesses after seeking permission from AE to serve the same by way of affixation. Finally, as the owner/builder did not respond to the aforesaid notices, a demolition order dated 11.02.03 (Ex.PW5/B) was approved by Shri Vinod Kumar, AE on the proposal being put by Shri Ajay Kumar Shrotriya, JE and he further remarked "demolish as per policy". The file was further marked to OI(B).
It is further the case of prosecution that demolition action was fixed for 19.02.03 in the area of Tilak Nagar. However, Ajay Kumar Shrotriya, JE mentioned in the noting on the file that "demolition action could not be conducted due to non availability of police force". The file was further put up before Shri Vinod Kumar, AE(B) West Zone who remarked "try again" and the file was further marked to JE/OI(B) on the same date.
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 6 It is next the case of prosecution that Ajay Kumar Shrotriya, JE fraudulently and dishonestly made an entry dated 24.04.03 in the demolition register showing to have carried out partial demolition in the property in question but did not raise any charges for demolition. An endorsement was made in the UC file dated 24.04.03 by Ajay Kumar Shrotriya to the effect "removed the chhajja at SF partly and complete demolition action could not be taken due to shortage of time". It is alleged that that the said entry was falsely made in the UC file with the intention of saving the property from demolition and was deliberately introduced and the same did not exist at the time of preparation of monthly statement of demolition for the month of April, 2003 which was prepared by Officer-in-Charge (Building). Also the demolition action was not reflected in the monthly action taken report prepared in the department. It is also the case of prosecution that no demolition charges were raised against the owner of the property in respect of said demolition shown to have been carried on 24.04.03 and also JE never received the file in respect of property in question from OI(B) on 24.04.03.
It is further the case of prosecution that on 24.04.03, the demolition was carried in other properties as reflected in demolition register against entry dated 24.04.03 in the area of PS Tilak Nagar but not in property in question. However, at this stage, it may also be observed that in the charge sheet, some of the facts have not been clearly spelled out and it is submitted by ld. PP that the error in reflecting the factual position ......contd... correctly by IO appears to be on account of the fact that investigation CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 7 was carried out in respect of 15 properties simultaneously by the investigating officer.
It is also the case of prosecution that in the demolition register of PS Tilak Nagar, no entry of demolition action in respect of property in question was shown on 27.03.03 since MCD staff had not reported but an entry was wrongly reflected in the demolition register of MCD showing to have removed the chajja at SF in 16/23 Tilak Nagar. The aforesaid fact is also not spelled out in the charge sheet though during the course of arguments, the same has been contended in view of entry dated 27.03.03 made in the demolition register of MCD. It is further the case of prosecution that on 27.03.03, the log book of the vehicle maintained by the department showed that the vehicle was out of order and had been taken to Subhash Nagar workshop for repairs and, thereafter, returned back to West Zone.
It is further the case of prosecution that during investigation the property in question was inspected by team of officers from CPWD and vide report dated 23.05.08 (Ex.PW3/A), it was observed that no approved plans in respect of 16/23, Tilak Nagar are available and as such the property is unapproved. It was also observed that at the ground floor, shops had been constructed and there is unauthorized coverage in the front and back areas at ground, first and second floor. The actual FAR was further observed to be 308.65% against the permissible FAR of 200% and the number of dwelling units were six which is more than the permissible dwelling units.
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 8 It is further alleged by the prosecution that the aforesaid demolition was not carried, in conspiracy with co-accused Bhagwant Singh and Harvinder Singh Bindra and thereby Ajay Kumar Shrotriya abused his official position as public servant.
4. Charge was framed against accused Ajay Kumar Shrotriya, Bhagwant Singh and Harvinder Singh Bindra u/s 120(B) r/w Section 417/465/468/217 IPC r/w Section 13(2) alongwith Section 13(1)(d) of the Prevention of Corruption Act, 1988. Charge was further framed against accused Ajay Kumar Shartoriya for substantive offences u/s 417/465/468/217 IPC and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988.
5. In support of its case, prosecution examined eighteen witnesses, namely:
1) ASI Jag Ram Singh
2) Shri Ashok Kumar (Vice Chairman, DDA)
3) Shri S.S. Rana (CPWD)
4) Shri Umesh Singh (Baildar, MCD)
5) Shri Brij Pal Singh (EE, MCD)
6) Ct. Jacob Mathew
7) SI Arvind Kumar
8) Shri Himmat Singh
9) Shri Trilochan Singh
10) Shri R.S. Rana (AGEQD)
11) Shri Lal Chand (Driver, MCD)
12) Shri Gurucharan Singh
13) Shri B.K. Sharma
14) Shri Moti Lal {OI(B), MCD}
15) Shri Rakesh Kumar Gupta
16) Shri Kishan Chand Ailawadi
17) Shri Himanshu Pandey (CPWD)
18) Inspector N. Mahato (IO, CBI)
(a) PW7 SI Arvind Kumar who conducted the preliminary
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 9
enquiry prior to registration of FIR deposed that he remained posted in EOU-VI from 2005 to 2009 and during his tenure, a preliminary enquiry was registered in CBI on 03.05.2006 in compliance to the orders dated 20.04.2006 passed by the Hon'ble High Court of Delhi in Writ Petition C(C) No. 4582/2003 to probe the nexus of MCD officers in engineering department, builders and political bosses. Further, the said PE was entrusted to him and after enquiring the matter, 15 properties were selected in which it was found that demolition was carried out in papers. After verifying the facts, it was found that reports in MCD records were different than the actual facts. Further, during the enquiry, owners of respective properties were examined along with the record of MCD and respective police stations and it was found that Ajay Kumar Shrotriya JE West Zone MCD forged the documents having knowledge that no demolition had taken place and dishonestly made bogus entries in the relevant records. Further, accused Ajay Kumar Shrotriya being the public servant also abused his official position to cause undue pecuniary advantage for himself or other private person and accordingly, recommendation was made for registering a regular case u/s 120B r/w 13(2) r/w 13(1)(d) of PC Act and substantive offence u/s 465 IPC. He further stated that in this respect, a letter dated 23.01.2007 (Ex.PW7/A) comprising of four pages was written by him to the then SP Shri A.K. Ohri whose signatures are at point B on all the pages.
(b) PW2 Shri Ashok Kumar, the then Vice Chairman, DDA (i.e. the competent authority) accorded the sanction for prosecution of accused Ajay Kumar Shrotriya, JE and further proved the sanction CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 10 order Ex.PW2/A.
(c) PW14 Shri Moti Lal, the then Officer In-charge (Building) MCD deposed that during the period May 2002 to November, 2004 he was posted as OI (Building) in West Zone and during the aforesaid assignment he was custodian of unauthorized construction files and was maintaining circular files, movement register, demolition register, missalbandh registers and also used to make entries regarding unauthorized construction in missalbandh registers. Further, during his aforesaid assignment he had made various entries in missalbandh registers regarding unauthorized construction maintained in his office.
He further stated that FIR No. B/UC/WZ/03/75 dated 27.01.03 (Ex.PW14/A) regarding 16/23, Tilak Nagar, New Delhi was lodged by the then JE Ajay Shrotriya under his signatures at point A and particulars of the same were entered by him {OIB} in missalbandh register at serial no. 44. Further, the FIR was put up before Shri Vinod Kumar, AE who made an endorsement "issue notice and take n.a. as per DMC Act". Further, the file was handed over to A.K. Shrotriya on the same day.
He further stated that show cause notice (Ex.PW4/A) was issued under the signatures of Shri Vinod Kumar, AE. Further, permission was sought by Ajay Shrotriya, JE for service of notice by pasting and the same was thereafter served by way of pasting in the presence of witnesses. Further, the file was returned to him {OI(B)} on the same day.
He further stated that another notice under Section 343 (1) of DMC Act dated 03.02.03 (Ex.PW4/B) was issued under the signatures CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 11 of Shri Vinod Kumar, AE(B) after the orders to issue the same were sought by Ajay Kumar Shrotriya vide Ex.PW14/C and entry of the same was also reflected in missalbandh register (Ex.PW14/B) at point X against entry dated 03.02.03. He further stated that permission to paste the notice was sought by A.K. Shrotriya vide endorsement at point X on Ex.PW4/B which was countersigned by Shri Vinod Kumar, AE. Further, an endorsement was made in respect of pasting of notice on 04.02.03 at point Y on Ex.PW4/B by Ajay Kumar Shrotriya.
He further stated that demolition order dated 11.02.03 (Ex.PW5/B) was passed bearing signatures of Ajay Kumar Shrotriya at point B and Shri Vinod Kumar at point A who further observed "demolish as per policy".
He further stated that on the demolition order dated 11.02.03 an endorsement was made by Ajay Kumar Shrotriya on 19.02.03 to the effect "demolition action could not conducted due to non availability of police force". Further, Shri Vinod Kumar, AE remarked on the same "try again" and the file was marked to OI(B).
He further proved endorsement dated 24.04.03 at point Z on Ex.PW5/B whereby it was observed by Ajay Kumar Shrotriya that part demolition was conducted due to shortage of time and the file was further marked to AE.
He further stated that as per movement register (Ex.PW14/D), on 19.02.03, no file pertaining to property in question was taken by Ajay Kumar Shrotriya whereas files pertaining to other properties bearing no. 12/21, Tilak Nagar and 68A, Mukherjee Park were taken by him.
He also stated that as per movement register (Ex.PW14/D), on CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 12 24.04.03, no file pertaining to property in question was taken over by Ajay Kumar Shrotriya whereas UC files along with sealing files pertaining to other properties were taken by him and were received back.
He further stated that demolition register (collectively Ex. PW14/D) was maintained by him during his tenure in the office which was kept in the office for the purpose of reporting of demolition by concerned JE and making entries. Further, there was an entry on page no.60 on the demolition register against entry dated 19.02.03 to the effect "no force". Further, against entry dated 24.04.03 on page 72 of demolition register various entries regarding demolition/sealing action of different properties were mentioned but there was no reference to action having been taken in 16/23, Tilak Nagar.
He also stated that as per rule, the UC file relating to property should be handed over to him on the same day on the arrangement of police force for demolition but the file was never handed over to him by Ajay Kumar Shrotriya.
He further stated that the programme for demolition used to be chalked out by the concerned XEN and the same was communicated to the concerned JEs/Asstt. Engineer. Further, he used to prepare letter in regard of levy of demolition charges and after procuring the signatures of concerned Asstt. Engineer, he used to send it to the owner/occupier for paying the same.
He also stated that Action Taken Report against the unauthorized construction used to be prepared by him on the basis of demolition register which is usually written by the concerned JE. Further, the copy of the same used to be kept in his custody for official CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 13 purposes.
He further stated that Action Taken Report (colly Ex.PW5/A) bears his signatures at point B on page Nos. 1, 4, 5, 6, 7 along with the signatures of the then EE, Shri Kadyan at point A. He clarified that he used to prepare and send Action Taken Report on the basis of information provided in demolition register and entries of missalbandh register, which was maintained by him during his official course of duty and the action taken report was sent to concerned senior Officers on monthly basis by him.
He further stated that vide letter dated 23.01.03 (Ex.PW14/F), DCP was requested to spare police force on various dates for carrying out demolition of various areas and further bears signatures of Shri B.P. Singh, EE. He further proved letter dated 20.03.03 addressed to DCP for arranging police force on 24.04.03 (Ex.PW14/G).
(d) PW5 Shri Brij Pal Singh Executive Engineer, Central Zone, MCD deposed that he remained posted as EE from 16.04.02 till 09.05.03 in West Zone, Rajouri Garden, New Delhi and during that period he was looking after building department in the supervisory/administrative capacity. He further stated that the office was maintaining missalbandh register through OI(B) on daily basis in which entries regarding unauthorized construction were maintained on the basis of feed back given by the concerned JE/AE of the area. Further, the missalbandh register used to be put up before him for formal closing on day to day basis and he used to put his signatures.
He also stated that monthly report was used to be sent to the CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 14 higher authorities for their information regarding day to day working and monthly progress. Further, programme regarding demolition of unauthorized construction was to be prepared by OI(B) on urgent basis and same was put up before him or concerned DC/Zone for the intimation to concerned police station for the requisition of police force for the assistance in carrying out the demolition.
He further deposed that while sending monthly report to higher authorities it used to contain information regarding opening balance of month in regard to unauthorized constructions, information about the demolitions/sealing actions carried out during the previous month and booking of properties under 466 (A) of DMC Act and action taken against the properties under Section 344 of DMC Act. Further, all the information used to be provided by OI(B) and the same was countersigned by him (EE) for sending it to the higher authorities.
He further deposed that the Action Taken Report (Ex.PW5/A) for the period January to May 2003 except February 2003; April 2002 to December 2002 except October 2002 were sent by him under his signatures at point A. Further, the reports were forwarded by him and the same were put up before him by the concerned OI(B) Shri Moti Lal which were prepared on the basis of original demolition register and all the ATRs were used to be annexed with particulars about demolition carried out in the previous month.
He clarified that as per procedure, an entry regarding particular demolition is made in UC file. The same is put up before concerned CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 15 AE and after its due ratification by the AE, the UC file goes back to OI(B).
He further stated that as per UC file (D-3) and its demolition order available on page 5 (Ex.PW5/B), there is marking of concerned file to AE(B) in entry available at point C dated 11.02.03 along with comments "demolish as per policy" and the file further was marked to OI(B). He further deposed that there is another entry dated 19.02.03 regarding demolition on demolition order dated 11.02.03 at point X which shows that demolition action could not be carried out due to non availability of police force. Further, an endorsement was made at point Y "try again" and the file was marked to OI(B). He further proved entry dated 24.04.03 at the back of demolition order by concerned JE at point Z to the effect "removed the chhajjas at second floor partly and complete demolition action could not be taken due to shortage of time" and the file was further marked to AE(B).
He further stated that as per Action Taken Report for the month of April, 2003 and May, 2003 (Ex.PW5/A), there is no mention of demolition of property No.16/23, Tilak Nagar. He also stated that the Action Taken Reports were sent by Mr. Moti Lal, OI (B) on the basis of demolition register and missalbandh register for the concerned period and after verifying from the records on monthly basis.
(e) PW4 Shri Umesh Singh (witness to service of notice u/s 343/344 DMC Act, 1957) deposed that he was posted in MCD West Zone in 1999-2000 as baildar and as per his duties, he used to CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 16 accompany the JE concerned to the properties wherein unauthorized construction may have been carried for purpose of service of notices under the DMC Act. Further, the notices were handed over to the owner/builder, if present at spot and in the absence of the same the notices were pasted as per the directions of the JE concerned.
He further identified his signatures at point A on the notice u/s 344 of DMC Act (Ex.PW4/A) and stated that he had affixed the aforesaid notice on the building as per instructions of Ajay Kumar Shrotriya since the owner/builder of the property was not available.
He further identified his signatures at point A on the notice u/s 343 of DMC Act dated 03.02.03 (Ex.PW4/B) along with signatures of Ajay Kumar Shrotriya, JE at point B.
(f) PW11 Shri Lal Chand posted as Driver in Building Department, West Zone, MCD deposed that he used to ferry the officials and the police force as and when directed by the officers and used to maintain log book of the vehicle (Ex.PW11/A). Further, in case the truck was requisitioned by a particular officer, the same was reflected and the log book was also countersigned by the officer concerned in the relevant column.
He further stated that he had given his statement with respect to the placement of the truck on various dates as inquired by the CBI officials and as per entry dated 19.02.03 in the Log Book (Ex.PW11/A), he had taken the vehicle on request of Shri A.K. Mittal, JE who visited PS Tilak Nagar to take police force for demolition but the police force was not made available by the police authorities. He CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 17 further identified his signatures at point B and initials of Shri A.K. Mittal, JE at point C. He further stated that as per entry dated 24.02.03 in the Log Book, he had taken the vehicle at request of Shri Mohd. Ahmed, JE who visited PS Rajouri Garden to take police force for demolition but the same was not made available. He further identified his signatures at point F and those of the concerned JE at point G.
(g) PW3 Shri S.S. Rana, Dy. Architect, CPWD and PW17 Shri Himanshu Pandey, EE, CPWD proved the report Ex.PW3/A which was prepared on inspection of property in question in 2008 reflecting unauthorized construction.
(h) PW6 Ct. Jacob Mathew deposed that he remained posted as Constable in P.S. Tilak Nagar from 2002 to 2007 and was deputed on dak duty which included handling of diary dispatch work and delivery and acceptance of dak to various offices. Further, he was also maintaining demolition register since he was attached with Reader to SHO. He further stated that the demolition register contained entries of dak received from MCD office regarding demolition of unauthorized construction and requirement of police force by MCD office.
He further stated that the requisition of police force by MCD department was used to be put up before SHO for necessary action and arrangement and details of same were used to be maintained in demolition register by him or sometimes it used to be entered by the Reader.
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 18 He further stated that demolition register at P. S. Tilak Nagar (Ex.PW1/A) was maintained by him in regular course of his duties and as per entry at serial no. 7 dated 19.02.03 at point A, request was received from MCD for requisition of police force for carrying out demolition in the area of PS Tilak Nagar and in the last column against this entry remarks are "not carried out" as MCD staff not reported.
He further stated that as per entry at serial no. 13 dated 24.04.03 at point A, request was received from MCD for requisition of police force for carrying out demolition in the area of PS Tilak Nagar and in the last column against this entry remarks are "carried out with the help of outside force".
(i) PW1 ASI Jag Ram Singh deposed that he was posted in PS Tilak Nagar as HC in 2006 and remained posted till 2010. Further, in 2008, he was looking after the work as Reader to SHO, PS Tilak Nagar. He further stated that the demolition register (Ex.PW1/A) was maintained at the PS Tilak Nagar and the entries in the same were made by Ct. Jacob Mathew who was working under him.
He further stated that as per entry dated 24.04.03, there was requisition of police force by MCD for carrying out demolition in the area of PS Tilak Nagar but as per record, the demolition was carried out with the help of outside force.
(j) PW10 Shri R.S. Rana, AGEQD proved the handwriting report (Ex.PW10/B) comprising of seven pages along with detailed reasons.
He stated that documents of this case were referred by SP, CBI CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 19 EOU-VI, New Delhi vide their letter no. 4664/3/1/2007/EOU-VI dated 10.6.08 (Ex.PW10/A) along with annexures. Further, after careful and thorough examination of the documents, he came to the conclusion which was expressed in the form of a report (Ex.PW10/B) comprising of seven pages along with detailed reasons which bears his signatures at point B and signatures of Dr. B.A. Vaid, GEQD at point A who had also examined the case independently and came to the same conclusion. He also stated that the report was sent to CBI office vide letter no. CX-166/2008-1909 dated 31.12.08 and bears signatures of Shri B.A. Vaid at point A.
(l) PW8 Shri Himmat Singh deposed that he had been running a shop at 16/23 Tilak Nagar for about last three years prior to date of deposition. The same was purchased in 2003 from one Harvinder Singh Bindra by his brother Tara Singh who had since expired. He further stated that to his knowledge, neither any notice under DMC Act was received nor any demolition action was taken in the premises by MCD. He further identified the photocopy of Sale Deed dated 12.11.03 (Mark PW8/A) executed by Harvinder Singh Bindra in favour of Tara Singh in respect of Shop No.4 in property no. 16/23AB, Tilak Nagar.
During cross-examination he clarified that his brother Tara Singh expired in 2006 who was looking after the property before death.
(m) PW9 Shri Trilochan Singh stated that he had purchased property no. 16/23, Tilak Nagar from Kishan Chand Ailawadi along CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 20 with Bhagwant Singh and Tejvir Singh in 2003. Further, after some time the same was sold to Harpreet Singh. He further stated that when the property was purchased, the same was constructed at ground floor only and during the period the property remained under their ownership and till the date of its disposal to Harpreet Singh, no notice was received from MCD for unauthorized construction. He also stated that no construction was initiated by them. He further identified GPA executed by Kishan Chand Ailawadi in favour of Bhagwant Singh, Tejvir Singh and himself (Trilochan Singh) MarkPW9/A. He further stated that later on, he had sold his share to Harpreet Singh and identified GPA executed for aforesaid purpose Mark PW9/B.
(n) PW12 Shri Gurucharan Singh stated that he had purchased a shop in premises no. 16/23, Tilak Nagar somewhere in 2003 vide Sale Deed dated 19.09.03 (Mark PW12/A). He further stated that he had never received any notice from MCD regarding the property being unauthorizedly constructed nor any demolition action was taken by MCD after purchase of shop.
During cross-examination he clarified that he was not aware of proceedings prior to 19.09.03 since he was not in possession of property
(o) PW13 Shri B.K.Sharma stated that Sale Deed dated 23.09.03 was executed by Harvinder Singh Bindra in favour of his wife Saroj Sharma in respect of rear West portion of first floor without roof/terrace rights measuring 90 sq. yards in respect of property no. 16/23AB (Mark PW13/A). He further stated that no notice was CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 21 received from MCD regarding property being unauthorizedly constructed.
During cross-examination, he clarified that he was not aware of proceedings prior to purchase of the property.
(p) PW15 Shri Rakesh Kumar Gupta deposed that his father Shyam Lal Gupta who has since expired had purchased second floor in 16/23 in 2004. Further, in response to CBI notice issued in name of his father (Ex.PW15/A), a reply was furnished by his mother (Ex.PW15/B). He further proved the copy of death certificate of his father (Ex.PW15/C) and also identified the copy of Sale Deed (Mark PW15/D). He also stated that he was residing in the property since 2004 and neither any notice was received from MCD nor any demolition action had been taken in the premises since purchase.
(q) PW16 Shri Kishan Chand Ailawadi stated that he had purchased plot no. 16/23, Tilak Nagar measuring about 269 sq. yards in the year 1970 from Sardar Dalip Singh. He further clarified that number of the property is reflected as 16/23AB in some records but both 16/23 and 16/23AB pertain to same plot measuring 269 sq. yards. He further stated that construction was raised on the plot in 1971-72 and in 1990. Further the premises was sold to Sardar Bhagwant Singh and others vide GPA dated 07.11.02 (Mark PW9/A). He further stated that he visited the premises after a period of three months after sale and existing construction had been demolished in entirety for raising new construction and a building was raised thereupon subsequently.
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 22
(r) PW18 Inspector N. Mahato deposed that on 23.01.2007, he was posted at EOU-VI, New Delhi as Inspector and was entrusted with the investigation of complaint dated 23.01.2007 which was enquired at preliminary stages by SI Arvind Kumar and thereupon it was entrusted to him under the signatures of the then SP Shri A.K. Ohri at point A on FIR dated 23.01.2007 (Ex.PW18/A). Further, FIR was accompanied with the complaint of SI Arvind Kumar dated 23.01.2007 (Ex.PW7/A) vide which he was asked to investigate regarding unauthorized construction and demolitions carried out by accused A.K. Shrotriya during his posting in building department West Zone of MCD New Delhi.
He further stated that during the course of investigation, he obtained the search warrant from Spl. Judge, Tis Hazari Courts u/s 93 Cr.P.C and conducted search in the presence of independent witnesses and other team members at residence and office of Ajay Shrotriya. Further, he also collected various documents from MCD office Rajouri Garden, occupants/builders of the buildings in question, office of CPWD like copy of missalbandh register (Ex.PW14/B), copy of demolition register (Ex.PW14/E), copy of log book (Ex.PW11/A), attendance register of JEs (Ex.PW18/B), action taken report (Ex.PW5/A), copy of movement register (Ex.PW14/D) and demolition register pertaining to PS Tilak Nagar (Ex.PW1/A).
He also stated that he obtained opinion from GEQD regarding handwriting as per marks on various registers and documents and further the documents were forwarded for opinion in sealed cover vide letter dated 10.06.2008 (Ex.PW10/A) and also the report (Ex.PW10/B) was thereafter obtained.
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 23 He further stated that the property in question was also inspected by the officials from CPWD and he had accompanied the officials for aforesaid purpose and obtained report (Ex.PW3/A) from the concerned department.
He also stated that the unauthorized construction file was seized consisting of FIR, notices u/s 343/344 DMC Act and demolition order along with other relevant documents. Further, he joined the police officials from the concerned PS wherein a separate demolition register was also maintained at some of the Police Stations and relevant documents were collected in this regard.
He further stated that as per investigation, the accused conspired for the purpose of fabrication of records and unauthorized construction was not demolished in the property in accordance with law.
He further identified the documents pertaining to ownership of property no. 16/23 i.e. GPA (Mark PW9/A, PW9/B) and Sale Deed (Mark PW8/A & PW12/A).
6. In his statement u/s 313 Cr.P.C. accused Ajay Kumar Shrotriya denied the case of prosecution and claimed that he had been falsely implicated in this case. He further denied having made any false entry in the MCD record qua demolition action taken in the property. He further took a stand that the staff could visit the site without official vehicle or police force for carrying out part demolition and the file was never closed by virtue of part demolition action. Further, Umesh Singh had accompanied him to the property in question at the time of demolition. He also stated that further demolition action could have been carried after his transfer and CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 24 further no demolition charges were to be claimed for minor demolition. He further submitted that he had been made a scapegoat by CBI to defend the actual culprits. He further submitted written statement u/s 313(5) Cr.P.C. and also examined DW1 Shri Pradeep Kumar Mittal, current OI(B), West Zone MCD, DW2 Shri Babu Lal (Baildar) and DW3 Shri Chandi Ram (Baildar) in defence.
(i) DW1 Shri Pradeep Kumar Mittal, OI(B), West Zone, MCD, Delhi proved the period of tenure and ward assigned to Ajay Kumar Shrotriya, Junior Engineer during the period 01.05.2002 to 30.09.2003 as per the available record of building department in the form of chart (Ex.DW1/X collectively). The same consisting of four pages was prepared on the basis of the office orders as available in the Area Distribution Register w.e.f. 01.01.2001.
(ii) DW2 Shri Babu Lal deposed that he was posted as Baildar in MCD West Zone during 2002-03 and used to accompany Ajay Kumar Shrotriya, JE as and when directed for purpose of affixation of notices under DMC Act and for purpose of demolition. Further 5/6 Baildars were associated with Ajay Kumar Shrotriya for assistance. He also stated that AE concerned used to be the In-charge of the demolition and in part demolition action the chhajjas used to be punctured. Further, if required, the walls were also demolished and in case of commercial construction the shutters were also removed.
He further stated that action could be taken without police force in case the request for police force had not been made. Further, at times, they used to visit the site on their own without the official CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 25 vehicle. He further stated that he did not recollect in specific if he had visited property n o. 16/23, Tilak Nagar.
(iii) DW3 Shri Chandi Ram stated that in the year 2002-03, he was posted as Baildar in West Zone, MCD, Rajouri Garden and Shri Ajay Kumar Shrotriya, JE was also posted during the aforesaid period. Further, he used to accompany the concerned JE as and when directed for service of notices under DMC Act and for purpose of demolition. He also stated that 5-6 Baildars were associated for assistance of JE/AE for demolition action and in case of part demolition action, the walls were demolished and chhajjas were punctured.
He further stated that at times they also used to visit the site on their own conveyance. He also identified his signatures on notice dated 27.01.03 u/s 344 DMC Act (Ex.PW4/A) and notice dated 03.02.03 u/s 343 DMC Act (Ex.PW4/B) and stated that he had accompanied Ajay Kumar Shrotriya, JE for service/affixation of aforesaid notices. He also stated that his statement was not recorded by CBI and he had accompanied the JE in this case for demolition action taken in the property.
Similarly, accused Bhagwant Singh in his statement u/s 313 Cr.P.C. denied the case of the prosecution and claimed that he had been falsely implicated. He further stated that he did not carry unauthorized construction in the premises nor any notice was received from MCD regarding carrying out of unauthorized construction. He also claimed that no demolition was carried out in the premises till the time it remained in his possession. He also stated that he had CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 26 purchased property no. 16/23AB, Tilak Nagar, New Delhi and had no concern with property no. 16/23, Tilak Nagar. Accused further claimed that the property purchased from Kishan Chand Ailawadi was 16/23AB, Tilak Nagar and not 16/23, Tilak Nagar. However, no evidence was led on behalf of accused Bhagwant Singh in defence.
Accused Harvinder Singh Bindra also denied the case of the prosecution. Accused further claimed that the property purchased from Kishan Chand Ailawadi was 16/23AB, Tilak Nagar and not 16/23, Tilak Nagar and both the properties 16/23AB and 16/23, Tilak Nagar are different. He also submitted that he did not carry unauthorized construction in the premises and no notice was received from MCD regarding carrying out unauthorized construction. He further took a stand that no demolition was taken in the premises till the time it remained in his possession. However, no evidence was led in defence on behalf of accused Harvinder Singh Bindra.
7. Counsel for accused Ajay Kumar Shrotriya assailed the case of prosecution on various grounds detailed below and also filed written submissions on record:
a) That the sanction order Ex.PW2/A had been passed by PW2 Shri Ashok Kumar, Competent Authority against accused Ajay Kumar Shrotriya without application of mind.
b) That Ajay Kumar Shrotriya had no occasion, motive or opportunity to obtain any pecuniary advantage and the investigating agency had malafidely implicated accused Ajay CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 27 Kumar Shrotriya who was on deputation from DDA with MCD for a short period from 06.05.02 to 30.09.03 ignoring the role of all other JEs/AEs posted in West Zone, MCD.
c) It was also vehemently urged that there was no evidence to prove conspiracy between the accused and the same could not be inferred in the absence of any evidence to show meeting of minds. It was also submitted that no evidence had been led to show passing of gratification or meeting of accused at any point of time.
d) Counsel for accused Ajay Kumar Shrotriya also urged that demolition charges were not to be claimed by Ajay Kumar Shrotriya since the same was the job of OI(B) and also no demolition charges were generally claimed for carrying out minor demolitions.
e) It was vehemently contended that the investigating agency had commenced the investigation only with the motive to fix Ajay Kumar Shrotriya, JE who had been on short period of deputation leaving aside the role of all other officials i.e. JE, AE, EE, SE or DC. It was urged that accused had been already acquitted in CC No.92/11, 111/11, 109/11, 114/11, 117/11, 107/11, 108/11 & 116/11 wherein the prosecution had miserably failed to point out evidence of conspiracy or that the demolition action had not been taken by the accused. In the aforesaid context, it was pointed out that in the charge-sheet CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 28 bearing CC No.117/11 arising out of FIR (RC) No.1/2007, the prosecution had relied upon statement of one Ramesh, baildar recorded u/s 161 Cr.P.C. who had admitted the carrying out demolition in property no. A5/11, Paschim Vihar involved in CC No.111/11 but the same was deliberately suppressed by the investigating agency in CC No.111/11 and accused stood acquitted therein considering the infirmities and motivated investigation.
It was also contended that in CC No.92/11 wherein accused have been acquitted by this Court, Ajay Kumar Shrotriya was arrayed as an accused despite the fact that he had been never posted in the Ramesh Nagar Ward wherein the property was situated. It was contended that this Court has already observed the serious lapses in investigation in aforesaid case and the accused stands acquitted.
f) It was submitted that the proceedings recorded in Unauthorized Construction File on 19.02.03 to the effect that demolition action could not be taken due to non availability of police force, could not be doubted merely because the file was not reflected in the File Movement Register as the file had been duly marked to AE(B) Shri Vinod Kumar on aforesaid date and he had also initialed the file and remarked "try again" under his initials dated 19.02.03.
It was also contended that it could not be inferred that partial demolition action was not carried by Ajay Kumar CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 29 Shrotriya as per entry dated 27.03.03 in demolition register merely because corresponding noting was not reflected in UC file or that the movement of file was not reflected by the OI(B) in the 'File Movement Register'. Reliance was also placed on the cross-examination of PW14 Shri Moti Lal who admitted having missed the making of entries in several cases in the file movement register and other record, wherein demolition had been carried due to overload of work.
It was also submitted that the file never stood closed by mere entry dated 27.03.03 made in the demolition register whereby partial demolition action was taken by Ajay Kumar Shrotriya. It was also contended that investigating agency has not booked the AE or any subsequent JE/AE posted after transfer of Ajay Kumar Shrotriya for failing to take further demolition action since the same was never closed by mere part demolition action reflected vide entry dated 27.03.03 in demolition register.
g) It was also submitted that there was no bar for the JE to visit the property in question for taking demolition action against the unauthorized construction without police force and with the available staff of MCD. It was further urged that Ajay Kumar Shrotriya had visited the property in question on 27.03.03 without police force and taken action in the properties reflected in the demolition register i.e. WZ-183, Punjabi Market, Vishnu Garden; 1/17 Tilak Nagar and 15/35B along with property numbers WZ-23, Gali No. 7, Krishna Park CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 30 (involved in CC No.112/11), 16/23 Tilak Nagar (involved in CC No.119/11), 22/23, Tilak Nagar (involved in CC No. 110/11) and WZ-30, Krishna Park (involved in CC No.93/11) but the prosecuting agency had not challenged the demolition action taken without police force in WZ-183, Punjabi Market, Vishnu Garden and 1/17 Tilak Nagar on the aforesaid date.
h) It was also contended that the inference could not be drawn that partial demolition action had not been taken on 27.03.03 on the basis of inspection conducted in 2008 by CPWD reflecting the existing construction as it could not be ruled out that the repairs/renovation may have been carried of the portion which had been partially demolished in the intervening period of about five years.
i) It was also urged that Ajay Kumar Shrotriya had been posted in the concerned Ward No. 22 for a short duration from 20.06.02 to 02.09.02, 31.12.02 to 31.03.03 & 10.04.03 to 29.05.03 and the investigating agency had made him a scapegoat ignoring the role of the officials posted prior to him and after his transfer from the concerned ward though they failed to initiate any demolition action. It was also pointed out that Shri A.K. Mittal, Shri U.C. Saxena, Shri S.K.Anand and Shri R.P.S. Nain who were posted in the intervening periods were given clean chit who failed to initiate any action but Ajay Kumar Shrotriya had been wrongly booked by the investigating agency by disputing the demolition action taken by him.
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 31
j) It was also contended that there was no requirement or procedure that demolition action could not be carried without obtaining the police force and in fact on 27.03.03 the action was taken by him without police force and there was no question of obtaining the police force from PS Tilak Nagar since the truck was out of order.
k) It was also vehemently contended by counsel for accused that no evidence has been led by prosecution to show that the demolition action had not been taken by the accused on 27.03.03 and merely because a corresponding entry was not made in the unauthorized construction file, it could not be presumed that the entry in the demolition register had been fabricated. It was submitted that the UC file never stood closed by a mere entry of partial demolition action which was taken and reflected in the demolition register and was missed to be mentioned in the UC file. Further, there was no bar for the succeeding JEs/AEs posted after transfer of Ajay Kumar Shrotriya to initiate demolition action as per law on the basis of factual position reflected in the UC file which required further demolition action to be taken.
Similarly, it was contended that entry dated 24.04.03 in UC File reflecting that the Chhajja had been removed at SF partly and complete demolition action could not be taken due to shortage of time could not be doubted since the files were CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 32 duly marked to AE in respect of property no. WZ-23 Krishna Puri (CC No.112/11), 16/23 Tilak Nagar (CC No.119/11) and 22/23 Tilak Nagar (CC No.110/11) taken on aforesaid date. Further, the file was duly signed by the AE in CC No.110/11 on the same date. It is further contended that the AE concerned Shri Vinod Kumar (since expired) could have explained the reason as to why the entry could not be signed in CC No. 112/11 & 119/11 (present case) though the same was duly signed in CC No.110/11 and was even subsequently taken up on several dates for demolition action by the succeeding JEs/AEs after transfer of Ajay Kumar Shrotriya. It is urged that the entries may have been missed in the demolition register since the demolition action could not be completed in the present case due to shortage of time but the same could not be doubted since the file was duly signed by the AE concerned on 24.04.03 in CC No.110/11 pertaining to property no. 22/23 Tilak Nagar.
l) Counsel for accused Ajay Kumar Shrotriya also relied upon John Pandian Vs. State Rep. by Inspector of Police, T. Nadu, MANU/SC/1025/2010 : 2011(1) JCC 193 in support of the contentions made by him.
Counsel for accused Bhagwant Singh and Harvinder Singh Bindra submitted that there could not have been any conspiracy with Ajay Kumar Shrotriya since different JEs were posted prior to booking CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 33 of the alleged construction by MCD and after passing of demolition order and no evidence has been led on record to show the meeting of minds with Ajay Kumar Shrotriya in particular or any other MCD official. It was also contended that there is absolutely no evidence to reflect that the accused was known to Ajay Kumar Shrotriya, JE or had ever met him or if any gratification had been passed. It was also contended that accused Bhagwant Singh and Harvinder Singh Bindra had absolutely no role in making of any entries in the records of MCD which are in possession of the MCD officials. It was submitted that accused were unaware of the service of notices u/s 343/344 DMC Act, 1957 and the service of the same upon the accused has not been proved beyond reasonable doubt.
It was also contended by the counsel for accused Bhagwant Singh and Harvinder Singh Bindra that the investigation is beset with several infirmities since the GPA was executed in favour of accused H.S. Bindra on 24.03.03 (Ex.PW18/DZ3) and the property had already been booked by MCD vide FIR Ex.PW14/A prior to aforesaid date. It was urged that there could not have been any conspiracy with Harvinder Singh Bindra in case the construction was already existing in the premises. It was submitted that it had not been proved on record if the construction had been carried by Harvinder Singh Bindra after 24.03.03 or before the aforesaid date. It was also contended that the observations that the building was unapproved without sanction plan also does not corroborate with the documents filed by the investigating agency on record since it was reflected in letter no. 317/B/WZ/02 dated 19.12.02 issued by MCD to Kishan Chand Allahabadi/GPA holders Bhagwant Singh, Tejvir Singh, Trilochan CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 34 Singh and Harpreet Singh that the construction could be carried with reference to application dated 26.11.02 subject to the conditions referred in said letter and the plan was valid till 18.12.04. It was also contended by counsel for accused that the investigating officer has not come out with any reason for chargesheeting only Bhagwant Singh if the GPA also existed in favour of other persons, namely, Tejvir Singh and Harpreet Singh who have not been arrayed as accused by investigating agency for the reasons best known.
It was also urged by the counsel that the name of the owner/builder was not reflected in notices u/s 343/344 DMC Act, 1957 and even the extent of unauthorized coverage was not reflected in FIR Ex.PW14/A. Counsel also pressed that the particulars of the property in question did not match as the same had been referred as 16/23AB in the documents but the investigating agency had investigated in respect of 16/23 Tilak Nagar.
On the other hand, ld. PP for CBI vehemently contended that the entry dated 27.03.03 in the demolition register was falsely made in conspiracy by Ajay Kumar Shrotriya in order to help accused and save the property from demolition. It was further contended that the contradictions in the testimony of witnesses were of minor nature and did not discredit the statement of the witnesses in entirety. It was also submitted that the entry dated 27.03.03 pertaining to carrying of partial demolition was forged and fabricated in MCD records by Ajay Kumar Shrotriya as it is not supported by the corresponding record.
Apart from above, reliance was also placed on the inspection report prepared by CPWD in the year 2007-08 after the registration of CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 35 FIR/RC by CBI which reflected the unauthorized construction carried in the property.
8. I have heard Shri Y. Kahol, Advocate for accused Ajay Kumar Shrotriya, Shri S.P. Yadav, Advocate for accused Bhagwant Singh and Harvinder Singh Bindra, ld. PP for CBI at length and perused the record.
Before deliberating upon the evidence on merits, the scope of Section 120B IPC may be briefly noticed, as the foundation of the prosecution case is that the entry dated 27.03.03 was forged by Ajay Kumar Shrotriya in furtherance of conspiracy with co-accused and it was wrongly reflected that the demolition action had been partly taken in the property, to safeguard the same from demolition. It is also necessary to find out in this case as to whether the accused Ajay Kumar Shrotriya abused his position and acted dishonestly or with a corrupt or oblique motive.
Criminal conspiracy has been defined in Section 120A of the Indian Penal Code and Section 120B provides punishment for the same. A conspiracy must be put to action, inasmuch as, so long a crime is generated in the mind of the accused, it does not become punishable. The offence is said to have been committed only when the thoughts take concrete shape of an agreement to do or cause to be done an illegal act or an act although not illegal by illegal means. The gist of the offence of the conspiracy lies in agreement being the essential element and mere knowledge of the plan is not per se CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 36 enough. It also needs to be taken into account that the acts or the conduct of the parties must be cautious and clear enough to infer their concurrence as to common design and its execution. Also the incriminating circumstances must form a chain of events from which conclusion about the guilt of the accused could be drawn.
For the purpose of bringing the charge of criminal conspiracy read with other sections for which the accused has been charged, the prosecution is required to show the circumstances on which it could be inferred that the accused had hatched a conspiracy. Though often the conspiracy is hatched in secrecy and for proving the offence direct evidence may not be possible to obtain but in aforesaid eventuality the circumstances need to be proved which may lead to an inference that the accused acted in conspiracy. It has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence.
The principles laid down for ascertaining the conspiracy as referred in para 40 & 41 of (2009) 8 Supreme Court Cases 617 State of Madhya Pradesh vs. Sheetla Sahai and Others may aptly be quoted:
"40. In Kehar Singh v. State (Delhi Admn.), this Court has quoted (at SCC p. 731, para 271) the following passage from Russell on Crimes (12th Edn., Vol.1) The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 37 formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.
41. In State (NCT of Delhi) v. Navjot Sandhu this Court stated the law thus: (SCC p.691, para 101) One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
9. Since accused Ajay Kumar Shrotriya is also alleged to have abused his position and by corrupt or illegal means obtained pecuniary advantage, it may be relevant to refer to observations made by the Hon'ble Apex Court in S.K. Kale vs. State of Maharashtra AIR 1977 Supreme Court 822 with reference to Section 5(1)(d) of the Prevention of Corruption Act, 1947. It was therein held that the abuse of position in order to come within the mischief of the section must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It was further held that it is CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 38 for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
In the aforesaid context, since the conspiracy has been inferred on circumstantial evidence, it may be apt to refer to the observations of the Hon'ble Supreme Court in para 21 & 22 of S.P. Bhatnagar and Another vs. The State of Maharashtra AIR 1979 Supreme Court
826.
"21.................It would be well to bear in mind the fundamental rule relating to the proof of guilt based on circumstantial evidence which has been settled by a long line of decisions of this Court. The rule is to the effect that in cases depending on circumstantial evidence there is always the danger that conjecture or suspicion may take place of legal proof. In such cases the mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely it is, considering such matters, to over-reach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.
22. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 39 established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
10. Now, adverting to the charge-sheets filed by the prosecution, the evidence fairly needs to be assessed in the background that though the directions issued by the Hon'ble High Court in WP(C) 4582/2003 directed to probe the nexus of MCD officers including suspects with the hierarchy in the Engineering Department, builders and political bosses but the investigation has been intentionally confined to the cases involving accused Ajay Kumar Shrotriya, the then JE on deputation from DDA to MCD for a period of less than one and a half years. The posting of Ajay Kumar Shrotriya in the respective wards in the West Zone involving the 15 properties investigated by CBI has been for short periods revolving for few weeks to few months. The role of the other JEs, AEs, EE during whose tenure some of the properties may have substantially come up and who failed to take any further demolition action after transfer of Ajay Kumar Shrotriya from concerned ward has been completely overlooked by the investigating agency and investigation has been focused only in CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 40 respect of the entries of partial demolition action made by Ajay Kumar Shrotriya in respect of the aforesaid 15 properties. It is pertinent to note that the files never stood closed by entries made by Ajay Kumar Shrotriya reflecting partial demolition action during his posting in respective wards. The further demolition action required to be taken has been completely ignored by the succeeding JEs including the AEs & EE who were equally responsible to take the demolition proceedings to logical end.
The investigation and circumstances reflect a clear partisan role taken by the investigating agency in picking up selective cases pertaining to Ajay Kumar Shrotriya and ignoring all other aspects of investigation in blatant violation of the directions for investigation issued by the Hon'ble High Court.
However, the same does not lessen the responsibility of Ajay Kumar Shrotriya, JE and each respective case requires to be scrutinized independently to assess if the entries for partial demolition were forged by him in conspiracy.
It may also be relevant to observe at this stage that accused Ajay Kumar Shrotriya has already been acquitted in CC No.92/11, 111/11, 109/11, 117/11, 114/11, 107/11, 108/11, 116/11, 113/11, 115/11, 93/11, 110/11 & 112/11 wherein the prosecution failed to prove conspiracy beyond reasonable doubt or that the entry of partial demolition action had been forged by him. In CC No.92/11, Ajay Kumar Shrotriya was arrayed as an accused by investigating agency despite the fact that he had never been posted in Ramesh CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 41 Nagar Ward and the prosecution miserably failed to prove that demolition entry in respect of property concerned was forged by him.
It may also be noticed that thereafter prosecution has also filed applications for withdrawal of six cases against Ajay Kumar Shrotriya & others under Section 321 Cr.P.C. which includes the present case but the same were declined as the applications were not filed in four other similar cases based on analogous evidence and were contested by prosecution.
11. Keeping in view the principles referred to in the preceding paragraphs, observations made in para 10 above and the period of posting of Ajay Kumar Shrotriya in the ward in question, the circumstances relied upon by the prosecution may now be assessed to see whether they factually exist and, if so, whether they are of a character to be wholly incompatible with the innocence of the accused and consistent with their guilt.
Evidence has been led on record in defence in several cases including present case (i.e. CC No.119/11) whereby the posting of Ajay Kumar Shrotriya and other JEs in the concerned ward wherein property in question is located has been revealed for the period 2002-03 as under:
Ward Name of JE's Tenure of JE's in said
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 42
No. Ward
Sh. Ajay Kumar Shrotriya 20.06.02 to 02.09.02
Sh. A.K. Mittal 02.09.02 to 14.012.02
21-22 Sh. U.C. Saxena 14.12.02 to 31.12.02
Sh. Ajay Kumar Shrotriya 31.12.02 to 31.03.03
Sh. S.K. Anand 31.03.03 to 10.04.03
Sh. Ajay Kumar Shrotriya 10.04.03 to 29.05.03
Sh. R.P.S. Nain 29.05.03 onwards
The aforesaid chart clearly reflects that Ajay Kumar Shrotriya was posted in the concerned Ward only for a short period from 20.06.02 to 02.09.02, 31.12.02 to 31.03.03 & 10.04.03 to 29.05.03. The property in question was booked for unauthorized construction on 27.01.03 by Ajay Kumar Shrotriya and it was reflected on FIR (Ex.PW14/A) "on completion/on complain". The unauthorized construction was further reflected as deviation/excess coverage against SBP No.104/B/HQ/2000/01 dated 01.06.02 and the building was reflected to consist of GF, FF and Second Floor. The controversy has been narrowed down by the investigating agency to entry dated 27.03.03 made in the demolition register by Ajay Kumar Shrotriya whereby partial demolition action was stated to have been carried out in the property in question. However, the investigating agency has overlooked the role of other JEs/AEs during whose tenure, the unauthorized construction had also come up as well as further role of succeeding JEs/AEs/EE who had failed to initiate the demolition action against unauthorized construction after transfer of Ajay Kumar Shrotriya though the file never stood closed vide entry dated 27.03.03 made in the demolition register.
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 43
12. It may next be observed that notice u/s 344 (1) DMC Act, 1957 dated 27.01.03 (Ex.PW4/A) as well as 343 DMC Act, 1957 dated 03.02.03 (Ex.PW4/B) were issued under the signatures of Shri Vinod Kumar, AE as per record of MCD. The aforesaid notices were further served on the owner/builder of the property by way of affixation by Ajay Kumar Shrotriya, JE after obtaining the approval from Shri Vinod Kumar, the then AE. The demolition order dated 11.02.03 (Ex.PW5/B) was thereafter passed as proposed by Ajay Kumar Shrotriya, JE and approved by Shri Vinod Kumar, AE and he (AE) further remarked "demolish as per policy". The proceedings till aforesaid stage have not been disputed by the investigating agency.
Prosecution has disputed entry dated 19.02.03 made by Ajay Kumar Shrotriya in Unauthorized Construction file whereby it was observed on the demolition order (Ex.PW5/B) to the effect "demolition action could not be conducted due to non-availability of police force". The case of the prosecution is that the aforesaid entry dated 19.02.03 made in UC file on Ex.PW5/B has been wrongly made since the demolition action was fixed at PS Tilak Nagar wherein it was recorded in the demolition register maintained at PS Tilak Nagar to the effect "not carried out/MCD staff not reported". It is submitted by prosecution that the demolition had not been carried out since the MCD staff had not reported but not due to the non availability of police force.
At the outset, it may be observed that so far as aforesaid CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 44 entry dated 19.02.03 in the UC file is concerned, the proceedings undertaken on aforesaid date cannot be disputed since the same stand countersigned by Shri Vinod Kumar, AE(B). In case there was any doubt as to the non availability of police force, the same would also have been commented upon by Shri Vinod Kumar, AE(B) but he simply remarked "try again". The fact that the MCD officials visited police station Tilak Nagar on the aforesaid date stands corroborated by the entry dated 19.02.03 made in the log book by Shri Lal Chand (PW11). As per entry dated 19.02.03 in the log book, the vehicle was taken on the requisition of the then AE Shri A.K. Mittal who visited PS Tilak Nagar to take police force for demolition but later on they returned back without carrying demolition action because police force was not made available by the concerned authorities. Deposition to aforesaid extent was made by Shri Lal Chand (PW13) in CC No.113/11 which has been decided earlier by this Court. The fact that the demolition was also fixed on the aforesaid date by Shri A.K. Mittal, JE along with Ajay Kumar Shrotriya, JE also stands corroborated from the entry dated 19.02.03 made in the demolition register wherein the name of Shri A.K. Mittal also stands recorded. The fact that the log book also stands initialed against entry dated 19.02.03 also corroborates that the police force was unavailable. In case any such entry was wrongly made, then obviously Shri A.K. Mittal as well as PW Lal Chand would have also been charge-sheeted by the investigating agency. In the facts and circumstances, merely on the basis of entry reflected in the demolition register at PS Tilak Nagar, it cannot be concluded that CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 45 the demolition action was intentionally not carried out on 19.02.03 and a false entry was recorded by Ajay Kumar Shrotriya. It may also be observed that in the aforesaid entry, the remarks "MCD staff not reported" have been recorded in a different blue ink though the remarks in the remaining portion are in different impression of blue and red ink and it is not free of doubt if the same was recorded on the same date. It is also pertinent to note that PW6 Ct. Jacob Mathew in his cross-examination also submitted that he had no personal knowledge regarding the entries made in the remarks column as the same were made as per the instructions of the Reader but the investigating agency has not cited the Reader posted at aforesaid time at PS Tilak Nagar.
The fact that the proceedings were taken on the aforesaid date by Ajay Kumar Shrotriya cannot be doubted since the file was marked on 19.02.03 to the AE(B) Shri Vinod Kumar who remarked on the noting "try again". In case the file had not been handed over by OI(B), the aforesaid noting by Ajay Kumar Shrotriya, JE and further observations by AE(B) could not have been recorded on 19.02.03. As such, the stand of the prosecution that the file was not handed over by OI(B) on 19.02.03 does not find corroboration from record. Even otherwise, no complaint was made by OI(B), in case the file was not handed over by him to JE on 19.02.03. It may also be noticed that Shri Vinod Kumar, AE was reported by the prosecution to have expired and, as such, has not been examined. In the facts and circumstances, the prosecution has failed to prove that the proceedings on 19.02.03 CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 46 were fabricated by Ajay Kumar Shrotriya, JE.
13. The investigating agency has further disputed the entry dated 27.03.03 made by Ajay Kumar Shrotriya, JE in demolition register during his tenure in the ward from 31.12.02 to 31.03.03 whereby partial demolition action was stated to have been carried by him and noting was made to the effect "remove the chhajja at SF" though no corresponding entry was made in the unauthorized construction file. The said entry dated 27.03.03 is alleged by prosecution to be concocted without actually carrying the demolition.
The entire blame and investigation by prosecution only centres around entry dated 27.03.03 which is claimed by prosecution to have been forged in conspiracy with the co-accused. It is imperative to notice that demolition action was not taken after transfer of Ajay Kumar Shrotriya and the conspiracy obviously would also have been with the JE/AE/EE posted during aforesaid time rather being only confined with Ajay Kumar Shrotriya. The evidence on the point of conspiracy shall be discussed in detail in the subsequent paras but suffice to point out that there is no conclusive evidence on record to show as to the meeting of minds between Ajay Kumar Shrotriya and co-accused Bhagwant Singh & Harvinder Singh Bindra and the inference as to conspiracy with Ajay Kumar Shrotriya is only based upon entry dated 27.03.03. If there happened to be any malafide intention of closing the file merely on the basis of partial demolition action vide entry dated 27.03.03 in demolition register CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 47 then there was no occasion for Ajay Kumar Shrotriya for again taking up the file on 24.04.03. The root of the prosecution case, as such, appears to be on a slippery ground.
It may also be observed that on 27.03.03 Ajay Kumar Shrotriya had made entries as to partial demolition action taken without police force in property numbers WZ-183, Punjabi Market, Vishnu Garden; 1/17 Tilak Nagar and 15/35B along with property numbers WZ-23, Gali No. 7, Krishna Park (involved in CC No.112/11), 16/23 Tilak Nagar (involved in CC No.119/11), 22/23, Tilak Nagar (involved in CC No.110/11) and WZ-30, Krishna Park (involved in CC No.93/11) but the investigating agency has not disputed or challenged the action taken by him in property numbers WZ-183, Punjabi Market, Vishnu Garden; 1/17 Tilak Nagar and 15/35B for undisclosed reasons. There is no reason to presume that he could have legally taken action without police force in aforesaid properties WZ-183, Punjabi Market, Vishnu Garden; 1/17 Tilak Nagar and 15/35B but could not have taken the same in remaining four properties wherein he has been chargesheeted.
All the aforesaid four cases involving property number WZ-23, Gali No. 7, Krishna Park (CC No.112/11), 16/23 Tilak Nagar (CC No.119/11), 22/23, Tilak Nagar (CC No.110/11) and WZ-30, Krishna Park (CC No.93/11) involving the aforesaid entry dated 27.03.03 have been taken up together for arguments. It is interesting to note that the prosecution had filed application for withdrawal of cases u/s 321 Cr.P.C. at final stages in CC No.119/11 CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 48 (i.e. present case) and 110/11 but did not file any such application in CC No.93/11 & 112/11 though entry dated 27.03.03 is similarly involved in all the four cases wherein partial demolition action was reflected in the demolition register. The aforesaid application for withdrawal at final stage in this case was declined by the Court since the cases are based on analogous evidence but appear to be selectively prosecuted by CBI.
It may also be noticed that accused Ajay Kumar Shrotriya stands acquitted in similar cases involving entry dated 27.02.03 in demolition register whereby partial demolition action was reflected in CC No.116/11, 113/11 & 115/11 wherein corresponding entry had not been made in the unauthorized construction files since the prosecution failed to prove conspiracy and also considering the fact that the properties involved therein could not be saved from further demolition action merely on the basis of aforesaid entry as the files never stood closed and the burden equally lay on the succeeding JE/AE to take the demolition action after transfer of Ajay Kumar Shrotriya. Also it could not be proved beyond reasonable doubt if the entries dated 27.02.03 recorded as to partial demolition action in demolition register in respect of properties concerned in CC No.116/11, 115/11 & 113/11 were wrongly recorded. It had also come up on record that the JE could not close the unauthorized construction file. It further came up on record that the labourers alongwith the MCD staff can also travel by private vehicle to the property in case the government vehicle is unavailable. Even in the aforesaid cases bearing CC No.113/11, 115/11, Shri Vinod Kumar was the concerned AE posted in Ward no.
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 49 22 at relevant time but could not be unfortunately examined due to his death prior to commencement of trial. The demolition action in CC No.116/11 was further supported by Shri Gautam Chand, concerned AE.
14. It may also be appropriate to point out that in connected cases decided by this Court including CC No.114/11 (CBI vs. Ajay Kumar Shrotriya/Krishna Pahwa) in which the accused have been acquitted, it has also come on record in testimony of Brij Pal Singh, the then EE that demolition action could be carried by JE concerned without police force in an ongoing unauthorized construction. In the aforesaid case, it has also been brought on record in testimony of Umesh Singh, Baildar that they used to demolish the unauthorized construction even without the aid of police force wheresoever it was directed by JE concerned and they also used to visit the property by their personal conveyance as it was not necessary to commute in official vehicle provided by MCD. Shri Umesh Singh, Baildar examined as PW1 in CC No.109/11 by prosecution also made a similar statement to aforesaid extent in said case and has also deposed on similar lines in the present case i.e. CC No.119/11. It may also be noticed that Shri Umesh Singh examined as PW4 in CC No.112/11 taken up along with present case deposed during cross-examination that he had visited WZ-23 Krishna Puri along with Ajay Kumar Shrotriya for purpose of demolition action. Similarly, in CC No.93/11 taken up for arguments with present case PW12 Umesh Singh deposed in his cross-examination that he had visited WZ-30 Krishna Park. Further, the demolition action taken on 27.03.03 by Ajay Kumar CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 50 Shrotriya has also been supported by DW1 Babu Lal, Baildar in CC No.110/11 who had also witnessed the service of notice u/s 344 DMC Act. The demolition action has been further supported by DW3 Shri Chandi Ram, Baildar in the property in question in this case i.e. CC No.119/11 in his cross-examination who was also a witness to affixation of notice dated 27.01.03 u/s 344 DMC Act (Ex.PW4/A).
In the aforesaid context, PW 2 Shri Vijay Kumar Kadyan, Executive Engineer in his cross-examination dated 03.01.12 in CC No.93/11 deposed that demolition may be carried by JE without police assistance.
In view of above, merely because the JE visited the property without the police aid, it cannot be presumed that the entry was forged or the partial demolition action had not been carried out as inferred by the Investigating Agency. More so over for the reason that the conspiracy with co-accused has not been proved beyond reasonable doubt.
Also, PW2 Shri Vijay Kumar Kadyan, the then EE(B) in CC No.93/11 also corroborated the above fact in his cross-examination dated 03.01.12 (page 2) that the unauthorized construction file is not closed by mere part demolition and complete unauthorized construction is to be removed within the purview of Building Bye- laws. He also deposed that demolition action can be taken by a JE even without taking the file relating to unauthorized construction at spot in cross-examination dated 03.01.12 on page 1.
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 51 It has also come up in evidence of Shri Vijay Kumar Kadyan, EE (B) in CC No. CC No.116/11 (on page 7 of cross-examination dated 11.04.12) that the Incharge of demolition squad is AE and it is the duty of AE at site what action is to be taken with respect to unauthorized construction at site and the responsibility of taking the complete demolition action lies with the AE. He also clarified therein on page 8 of his cross-examination dated 11.04.12 that there has to be specific order for closing of the file by AE concerned and the file is not closed till demolition action is taken against the unauthorized construction or the same is regularized.
PW5 Shri Brij Pal Singh in the present case i.e. CC No.119/11 also deposed that AE is the head of demolition squad when the schedule is fixed for demolition of unauthorized construction and the demolition action could be carried by JE without police force in an ongoing unauthorized construction (page 4 and page 5 of cross- examination dated 14.03.12).
It may also be noticed that PW Vijay Kumar Kadyan examined in other cases including CC No.107/11 deposed on similar lines and also clarified that JE is not the officer authorized to close the file and the same is closed by AE.
The testimony of other JEs examined on behalf of prosecution in other cases is also to similar effect. PW7 Shri Umesh Chand Saxena, the then JE(B) in CC No.107/11 also stated in his cross-
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 52 examination dated 19.04.12 (page 4) in aforesaid case that till the time unauthorized construction file is closed, the action for demolition can be again taken.
In the light of evidence led on record, it can be safely inferred that the unauthorized construction file never stood closed by the aforesaid noting dated 27.03.03 made by Ajay Kumar Shrotriya in the demolition register whereby partial demolition action was taken. Thus, on the basis of aforesaid entry, it cannot be concluded in the facts and circumstances that the proceedings had been fabricated by Ajay Kumar Shrotriya.
15. Prosecution has further disputed entry dated 24.04.03 made by Ajay Kumar Shrotriya in UC file whereby it was observed on the demolition order (Ex.PW5/B) to the effect "removed the chhajja at SF partly and complete demolition action could not be taken due to shortage of time"on the ground that the file of aforesaid property was not obtained by him and is not reflected in the file movement register. It is also the case of prosecution that demolition in the area of Tilak Nagar was fixed on aforesaid date and demolition was carried by Ajay Kumar Shrotriya in other properties as reflected in the demolition register of MCD and also corroborated by the entry recorded in the demolition register maintained at PS Tilak Nagar but partial demolition of property in question was not taken by Ajay Kumar Shrotriya.
At this stage, it may be noticed that the investigating agency CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 53 has filed four charge sheets pertaining to property no. WZ-23, Krishna Puri (CC No.112/11); property no. 16/23 Tilak Nagar (CC No.119/11); property no. WZ-30 Krishna Park (CC No.93/11) and property no. 22/23, Tilak Nagar (CC No.110/11) wherein it is alleged on similar grounds by prosecution that entry dated 27.03.03 as to partial demolition action was dishonestly made by Ajay Kumar Shrotriya since the corresponding entry was not recorded in the respective UC files. The prosecution has also disputed entry dated 19.02.03 recorded in CC No. 119/11 pertaining to 16/23, Tilak Nagar; CC No. 93/11 pertaining to property no. WZ-30 Krishna Park and CC No. 110/11 pertaining to property no. 22/23 Tilak Nagar wherein it was recorded that demolition action could not be taken due to non availability of police force. However, no entry dated 19.02.03 was recorded in CC No.112/11 pertaining to property no. WZ-23, Krishna Puri. The prosecution has further disputed entry dated 24.04.03 made in CC No.112/11 wherein it was recorded by Ajay Kumar Shrotriya in the UC file that "action could not be taken due to shortage of time"; entry dated 24.04.03 made in UC file of CC No.119/11 pertaining to property no. 16/23 Tilak Nagar wherein it was recorded "removed the chhajja at SF and complete demolition action could not be taken due to shortage of time"; entry dated 24.04.03 in CC No.110/11 pertaining to property no. 22/23 Tilak Nagar wherein it was recorded by Ajay Kumar Shrotriya, JE "demolition action could not be taken due to shortage of time" and the file was further marked to AE who endorsed "try again" on the same date. However, no entry dated 24.04.03 exists in CC No.93/11 pertaining to property no. WZ-30, Krishna Park.
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 54 The observations as to entry dated 27.03.03 made in the demolition register and entry dated 19.02.03 in unauthorized construction file have already been deliberated in detail in paras above. It may further be observed that even the proceedings as per entry dated 24.04.03 in the UC file cannot be disputed since the file was put up before the AE concerned though the same has not been countersigned by Shri Vinod Kumar, AE(B) in CC No. 119/11 pertaining to property no. 16/23 Tilak Nagar and in CC No. 112/11 pertaining to property no. WZ-23, Krishna Puri. However, at the same time, the file pertaining to CC No.110/11 involving property no. 22/23 Tilak Nagar has been duly signed by Shri Vinod Kumar, AE and he remarked "try again". The file pertaining to CC No.110/11 (involving property no. 22/23 Tilak Nagar) was even thereafter put up on several dates before the AEs concerned i.e. 19.05.03, 30.06.03, 07.07.03, 10.07.03, 18.08.03, 13.09.03, 13.10.03 and 18.11.03 by different JEs but the demolition action could not be taken on one ground or the other. The aforesaid file in CC No.110/11 is even not reflected in the File Movement Register but the fact that the file was dealt by the AE concerned on 24.04.03 cannot be disputed since he remarked "try again". The fact cannot be lost sight of that all the four cases referred to above are similarly placed and it cannot be ignored that the file did not stand closed merely vide entry dated 24.04.03 and the burden equally lay on the shoulders of succeeding JEs/AEs after transfer of Ajay Kumar Shrotriya to take the demolition action in accordance with law. Even otherwise, no CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 55 complaint was made by OI(B), in case the file was not handed over by him to JE on 24.04.03. It may also be noticed that Shri Vinod Kumar, AE was reported by the prosecution to have expired and, as such, has not been examined. He could have been the best witness to clarify the proceedings taken on aforesaid date and an adverse inference cannot be drawn against accused for being unable to take complete demolition action on 24.04.03 for shortage of time since AE is equally responsible being Incharge of the demolition team. The AE had not been chargesheeted by the Investigating Agency and has been given a clean chit. In case the proceedings were not taken up on 24.04.03 as referred in noting made in UC file in CC NO.110/11, the investigating agency should have also chargesheeted the AE concerned who is the Incharge of demolition team. In the facts and circumstances, it cannot be inferred beyond reasonable doubt that the proceedings on 24.04.03 were fabricated by Ajay Kumar Shrotriya, JE merely because the demolition action is not reflected in the demolition register.
16 It is also imperative to point out that mere reflection of movement of files by OI(B) in the 'file movement register' for purpose of demolition action on the date fixed for demolition does not appear to be conclusive to determine that the demolition action had not been taken. As per contention made by ld. PP for CBI, the movement of the files was recorded in the file movement register only in case the demolition action was scheduled with police force as per monthly programme. In view of above, the movement of files on the dates CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 56 other than fixed for scheduled demolition was not recorded and the the UC files in custody of OI(B) could have been taken by the JEs/AEs for any other proceedings without recording in the file movement register. The possession of the UC file being obtained by JE on 27.03.03 without entry in the movement register, since he did not visit the site as scheduled is probable and no adverse inference can be drawn merely because the movement of file was not reflected in the file movement register. It may also be noticed that the custody of the files and demolition register maintained by MCD remains with OI(B) but no explanation has come as to how the files could have been accessed by Ajay Kumar Shrotriya if the same remained in possession of OI(B). Further, no complaint was lodged by AE(B) or EE in case the demolition action had been wrongly shown by Ajay Kumar Shrotriya in the file.
It may also be mentioned that only the attested copies of file movement register have been produced by the investigating agency and the original register has not been brought on record.
17. It may also be noticed that a mere non entry of the file in the movement register or the action taken report or the missalbandh register or demolition claim charge register does not automatically lead to an inference that the entries for partial demolition action had been forged by the JE. The same needs to be assessed in the light of other circumstances and evidence on record.
CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 57 It is imperative to note that during cross-examination of PW14 Moti Lal {the then Officer Incharge (Buildings)}, it has been brought on record that various entries existing in the demolition register were not supported by corresponding entry in the missalbandh register, file movement register, demolition charge register which may be due to negligence or oversight by OI(B) but were not disputed or charge-sheeted by Investigating Agency. The aforesaid aspect has been admitted by PW14 Moti Lal in his cross-examination dated 08.06.12 on page no.6 in the present case deposed to the effect that:
"There is an entry in demolition register dated 19.03.03 in respect of properties no. 14/9 and 10/62 Punjabi Bagh but there is no corresponding entry in missalbandh register, file movement register, demolition charge register. I cannot say anything about the entry in ATR since the same for the said period is not available on judicial record. Similar is my reply in respect of property no. D-12 Rajouri Garden, 10/62 West Punjabi Bagh, 21/98 West Punjabi Bagh, 34/75 West Punjabi Bagh, 2A/DG2 Vikaspuri-II, B-98 Kirti Nagar, 9/50 Kirti Nagar, X-5 Kirti Nagar and B-2/133 Janakpuri. These entries might have been left out due to over burden of work."
It is also pertinent to note that during cross-examination of PW14 Moti Lal in the present case, the counsel for accused also pointed out the missing entries in the file movement register and the action taken report which were admitted by PW14 Moti Lal to CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 58 have been missed by him due to overload of work. In the aforesaid context, cross-examination of PW14 Moti Lal dated 08.06.12 on page no.2 may be noticed:
"It is correct that the entries mentioned in demolition register Ex.PW2/D for 09.10.02 pertaining to property no. 23, Punjabi Bagh for 17.10.02 (pertaining to property No. C-40 Kirti Nagar) is not entered in the movement register Ex.PW3/D (exhibited in CC No.93/11). It is correct that in spite of the aforesaid missing entries in the movement register, the demolition is shown to have been carried and as such the demolition register could have been obtained without the corresponding entries in the movement register. (Vol. The said entries may have been missed due to overload of work)." He also admitted on page 4 of the cross- examination dated 08.06.12 to the effect "It is correct that entry dated 07.11.2002 pertaining to property no. C-3/396, Janak Puri in the demolition register is not mentioned in the Action Taken Report for the month of November, 2002. It is also correct that entry dated 25.11.02 pertaining to property no. C-5C-19 Janak Puri, C-5C-36A, Janak Puri and C-3/375, Janak Puri in the demolition register is not mentioned in the action taken report for the month of November, 2002. There is a possibility that there may be further entries in the demolition register which may not have been mentioned in the action taken report. I cannot say in case the said entries may be numbering about 150 over a CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 59 period of 6 months."
As such, it cannot be ruled out that the entries may be missed in the monthly 'action taken report' by OI(B) and the same may not be conclusive to infer that the entry dated 27.03.03 is forged and the demolition action had not been carried by the JE.
18. Ld. PP for CBI has next contended that since the 'demolition charges' were not raised in respect of the property in question and claimed from the owner, the entry for partial demolition action was forged.
The contention has been vehemently opposed by counsel for accused Ajay Kumar Shrotriya and it has been pointed out that it is the job of OI(B) to prepare the letter of demand/bill for the demolition charges as per the entries in UC file or in the demolition register and thereafter the said letter/bill is sent to the owner/builder under the signatures of AE. It is also contended by counsel for accused that JE has in fact no role to play in recovery of said charges.
It may be noticed that similar contention has also been raised in other cases decided by this Court. In CC No. 114/11, Shri Brij Pal Singh, EE was examined by the prosecution and in the aforesaid case, he stated in cross-examination dated 30.04.12 (page 3 and 4 ) to the effect:
"The demolition charges are to be claimed by the OI(B) and the necessary documentations is also to be CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 60 made by him for aforesaid purpose. The said charges are forwarded to the House Tax Deptt. for recovery from the concerned Assessee. It is not the duty of JE to claim the demolition charges."
Similar deposition has also been made by Shri Brij Pal Singh, EE in the present case i.e. CC No.119/11 on page no. 3 & 4 of his cross-examination dated 14.03.12.
PW16 Shri J.S. Yadav, AE in the aforesaid context in CC No.114/11 also clarified during cross- examination that for minor demolitions, the demolition charges are not normally raised.
It was also admitted by PW18 Inspector N. Mahato (IO) in the present case i.e. CC No.119/11 in his cross-examination dated 19.09.12 page 20 that "the demolition charges in respect of action taken by MCD are required to be collected by Assistant Engineer and not by the JE."
In the aforesaid context, it may also be noticed that since the posting of Ajay Kumar Shrotriya, JE was till 31.03.03 and the Ward was transferred from his jurisdiction merely within four days of entry dated 27.03.03, the further action in this regard, if any, could also be taken by the succeeding JE or the AE. In view of above, merely on this ground it cannot be inferred that the entry dated 27.03.03 carrying partial demolition action had been forged.
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19. Ld. PP for CBI has next relied upon report prepared by CPWD on inspection of property in 2007/08 and contended that unauthorized construction reflected in the report leads to inference that the demolition action had not been carried on 27.03.03.
I am of the considered view that aforesaid report may be relevant to show that the unauthorized construction had been carried in the property but merely on the basis of construction reflected in the CPWD report made in the year 2008 after registration of FIR by CBI, it cannot be inferred that entry regarding partial demolition action dated 27.03.03 in the demolition register and entry dated 24.04.03 in UC file is forged. It cannot be ruled out that the property may have been renovated or repaired after the said partial demolition action carried on 27.03.03 and 24.04.03. The testimony of PW8 Himmat Singh, PW12 Gurcharan Singh, PW13 B.K. Sharma and PW15 Rakesh Kumar Gupta does not further the case of prosecution in any manner as they came in possession of property after 24.04.03 and could not have been aware of the proceedings conducted on 27.03.03 and 24.04.03. In the facts and circumstances, it cannot be concluded on the basis of CPWD report prepared in 2008 that the entry dated 27.03.03 had been forged by Ajay Kumar Shrotriya though the fact that unauthorized construction was raised at the time of booking of FIR in the property cannot be doubted.
20. Learned PP for CBI has also vehemently contended that there is sufficient evidence to infer conspiracy since accused Ajay Kumar Shrotriya, JE had forged the entry dated 27.03.03 & 24.04.03 to CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 62 benefit the owner/builder.
To assess the aforesaid contention, it may be outrightly noticed that there is absolutely no evidence on record to show meeting of accused during the relevant period or passing of gratification. PW18 Inspector N. Mahato during his cross- examination dated 09.08.12 (page 18) stated that the owners of the property had informed him that Ajay Shrotriya had not met them during 2002/03. The inference as to conspiracy is merely drawn since the owner/builder of the property may be benefited, even in the absence of any corroboratory evidence of conspiracy. The same is clear from the fact as PW18 admitted in his cross- examination dated 09.08.12 on page 18 that there was no direct evidence of conspiracy but the same was inferred since the owner/builder were the beneficiary. The inference as to conspiracy has been drawn merely on the presumption that the entry dated 27.03.03 had been falsely introduced which itself has not been proved beyond reasonable doubt.
For the purpose of offence of conspiracy, the evidence should clearly reflect the meeting of the minds between the accused for achieving the intended object which is completely missing in this case. It is also imperative to notice that by merely making entry dated 27.03.03 the property of the owner/ builder could not have been saved from further demolition action. The duty for further complete demolition action lay on the shoulders of succeeding officers (JE/AE) under the supervision of other CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 63 senior officers in hierarchy after transfer of Ajay Kumar Shrotriya on 31.03.03. If any such conspiracy existed, then the officers posted after transfer of Ajay Kumar Shrotriya were also equally responsible for failing to take demolition action but have not been charge-sheeted by the investigating agency. Further, there was no reason for Ajay Kumar Shrotriya to further take up the proceedings or file on 24.04.03 if the entry dated 27.03.03 was fabricated. It may also be observed that testimony of PW8 Shri Himmat Singh, PW12 Shri Gurcharan Singh, PW13 Shri B.K. Sharma, PW15 Shri Rakesh Kumar Gupta and PW16 Shri Kishan Chand Ailawadi does not further the case of prosecution in any manner. PW8 Himmat Singh claimed a shop was purchased by his brother Tara Singh (who expired in 2006) in the property vide sale deed dated 12.11.03 Mark PW8/A and as such could not have been aware of the proceedings conducted by Ajay Kumar Shrotriya on 27.03.03 or 24.04.03. Similarly, PW12 Shri Gurcharan Singh stated to have purchased a shop in the property vide sale deed dated 19.09.03 (Mark PW12/A) and could not have been aware of the proceedings conducted by Ajay Kumar Shrotriya on 27.03.03 or 24.04.03. Also, PW13 Shri B.K. Sharma stated that rear West portion of first floor in the premises was purchased in the name of his wife vide sale deed dated 23.09.03 (Mark PW13/A) and could not have been aware of the proceedings conducted by Ajay Kumar Shrotriya on 27.03.03 or 24.04.03. PW15 Shri Rakesh Kumar Gupta also stated that his father Shyam Lal Gupta had purchased second floor of the premises in the year 2004 vide sale deed Mark PW15/D and as CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 64 such could not have been aware of the proceedings conducted by Ajay Kumar Shrotriya on 27.03.03 or 24.04.03.
It may also be noticed that the service of notice u/s 343/344 DMC Act has not been proved upon accused Harvinder Singh Bindra and it has also come up on record that the GPA was executed in his favour only on 24.03.03 as per Ex.PW18/DZ3. The property had already been booked by MCD vide FIR Ex.PW14/A prior to aforesaid date and the evidence has not come on record in case the property was built by him prior to 24.03.03. There could not have been any conspiracy with Harvinder Singh Bindra in case the construction was already existing in the premises prior to execution of GPA dated 24.03.03. It may also be noticed that the observation in the CPWD report that the entire building was unapproved since no approved plan of the property is available does not find corroboration from the documents filed by the investigating agency on record since it was reflected in letter no.317/B/WZ/02 19.12.02 issued by MCD to Kishan Chand Allahabadi/GPA holders Bhagwant Singh, Tejvir Singh, Trilochan Singh and Harpreet Singh that the construction could be carried with reference to application dated 26.11.02 subject to the conditions referred in said letter and the plan was valid till 18.12.04. The investigating officer has not come out with any reason for chargesheeting only Bhagwant Singh if the GPA also existed in favour of other persons, namely, Tejvir Singh and Harpreet Singh. In the facts and circumstances and evidence led on record, I am of the considered view that the prosecution has failed to prove beyond reasonable doubt if the entries dated 27.03.03, 19.02.03 and 24.04.03 CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 65 had been wrongly made by Ajay Kumar Shrotriya, JE in conspiracy with co-accused.
21. Counsel for accused Bhagwant Singh and Harvinder Singh Bindra also pressed that the particulars of the property in question referred in charge sheet did not match with the property possessed by accused as the same had been referred as 16/23AB, Tilak Nagar, Delhi in the documents but the investigating agency had investigated in respect of 16/23 Tilak Nagar.
I am of the considered view that the aforesaid contention does not carry any merits since the property finds description with reference to adjacent properties in several documents filed on record and in case the property no. 16/23AB was different from 16/23 Tilak Nagar, the accused could have led some probable evidence on record to show the existence of two separate properties from any government record. In the aforesaid context, even the IO had clarified during cross-examination that 16/23AB and 16/23 Tilak Nagar is one and the same property.
22. I am also constrained to point out that the investigating agency at its whims and fancies carried the investigation ignoring the role of any other JE posted prior to or after Ajay Kumar Shrotriya in the concerned ward and a clean chit has been given to the AE,EE,SE and DC without bothering to investigate their role.
The premier investigating agency (CBI) was expected to thoroughly investigate the case since the FIR was registered by CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 66 CBI and the investigation commenced on the directions issued by the Hon'ble High Court in WP (C) No.4582/2003 to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. However, the investigation has merely been confined to role of Ajay Kumar Shrotriya who was on deputation from DDA to MCD from 06.05.02 to 30.09.03 ignoring the role of other officers who appear to be also equally responsible for ensuring complete demolition action in the properties in question.
The dumping of the files by succeeding JE/AE/EE without initiating further necessary action in accordance with law leads to the only inference that the same was either in collusion or the role of subordinate officers was deliberately ignored. There also has been clear lack of supervision by the SE & DC concerned posted at relevant time.
23. Considering the fact that the nexus between the builders, their political bosses and officials from MCD is deeper and unauthorized constructions continue unabated even today, it may be observed that the acquittal of the accused wheresoever in the 15 cases prosecuted by CBI in RC No.1/07 does not protect the unauthorized construction from demolition. Also, departmental action be taken by Commissioner, North Delhi Municipal Corporation / concerned Commissioner, MCD in respective cases against the JEs/ AEs (other than Ajay Kumar Shrotriya) who are found liable for failing to take demolition action in the properties CC 119/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors.. 67 in question investigated by CBI after the same were booked for unauthorized construction by MCD and action was not taken after transfer of Ajay Kumar Shrotriya from the concerned Ward. A copy of this judgement be accordingly forwarded to Deputy Commissioner, MCD West Zone and Commissioner, North Delhi Municipal Corporation, for compliance and placing the action taken report on record within eight weeks.
24. For the foregoing reasons, the prosecution has failed to bring home the charge against all the accused beyond reasonable doubt. All the accused are accordingly acquitted of all the charges.
Announced in the (Anoop Kumar Mendiratta)
open Court on 23.10.13 Special Judge (PC Act) CBI-08
Central District, THC, Delhi.
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