Allahabad High Court
Rajiv Kumar vs State Of U.P. & Another on 24 February, 2016
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Case :- CRIMINAL APPEAL No. - 4717 of 2012 Appellant :- Rajiv Kumar Respondent :- State Of U.P. & Another Counsel for Appellant :- Samit Gopal,Mangala Prasad Rai,Pawan Kumar Tripathi,Samit Gopal Counsel for Respondent :- Govt. Advocate,Abhishek Mishra,Anurag Khanna,Ashok Pande,M.N.Mishra,N.I.Jafri,Pranay Krishna,V.K. Shukla Connected with Case :- CRIMINAL APPEAL No. - 4888 of 2012 Appellant :- Smt. Neera Yadav Respondent :- C.B.I. Counsel for Appellant :- S.K. Yadav,Shreesh Chandra Counsel for Respondent :- P. Krishna Hon'ble Harsh Kumar,J.
1. These two appeals being Criminal Appeal Nos.4717 of 2012 and 4888 of 2012 have arisen out of the one and same judgment and order dated 20.11.2012 passed by Special Judge Ante Corruption CBI Ghaziabad in Special Trial No.19 of 2002, C.B.I. Vs. Smt. Neera Yadav and Rajiv Kumar arising out of Case Crime No. R.C. No.3(A)/98 ACV VII, Police Station CBI/ACV-7, New Delhi convicting both the appellants for offences under section 120-B IPC and section 13(2) read with section 13 (1) (d) of Prevention and Corruption Act and sentencing each of them with three years R.I. and Rs. 50,000/- fine under section 120-B IPC and with three years R.I. and Rs. 50,000/- fine, under section 13(2) read with section 13(1)(d) of Prevention and Corruption Act and in case of default in payment of fine with simple imprisonment for an additional period of three months.
2. Since, the two appeals have arisen out of the same judgment passed in Special Sessions Trial, they were connected vide order dated 29.10.2014, were heard together and are being disposed by common judgment.
3. The relevant facts of the case in brief are, that in furtherance of order dated 20.1.1998 passed by The Apex Court., an F.I.R. was lodged by Central Bureau of Investigation on 26.2.1998 with the allegations that Smt. Neera Yadav (I.A.S. 1971 Batch) while working as Chairperson and Chief Executive Officer (hereinafter referred as "CCEO") of New Okhla Industrial Development Authority (N.O.I.D.A.) U.P. (hereinafter referred as "Noida") from 10.1.1994 to 08.11.1995, in conspiracy with some officers of Noida and other persons committed following acts of commission and omission in the matters of allotments, conversion and regularization of several residential/commercial plots in her name, in the name of her daughters and other persons:-
(i) that Smt. Yadav had three unmarried daughters out of whom eldest Km. Sanskriti was studying abroad since 1991 and second one Km Suruchi had studied abroad from September 1996 to 1997; that Km Sanskriti was allotted shop no.9 in sector 28 and obtained possession through her sister Km Suruchi and upon her request, for issuance of functional certificate, it was immediately issued on the same date 6.6.1994 on the strength of ownership of which shop she applied for allotment of a residential plot under the scheme 1994 (ii) of Noida, was allotted plot no.B-73 in sector 44 of Noida and later on, got it converted to plot no.A-33 in Sector 44; that Km Suruchi another daughter of Smt. Neera Yadav was allotted shop no.74 in Sector 15 of Noida and after obtaining possession by her, the same was also declared to be functional on 28.5.1994 and on the strength of ownership of the shop, she applied for allotment of a plot under the scheme 1994 (iii) and was allotted plot no.B-88 area 450 sq. mts. in Sector 51, which was subsequently converted to plot no.A-32 adjoining to plot no.A-33 (allotted to her sister) in Sector 44 Noida; that the shop was allotted to Km Suruchi after closure of scheme of 1992 and no certificate was enclosed with the applications of any of the two daughters of appellant Smt. Neera Yadav about their shops being functional or being run by any of them.
(ii) that in first lottery under the scheme 1994 (i) appellant Smt. Neera Yadav was allotted plot no.B-002 area 300 sq. mts. in sector 32 and after one week on her request, for conversion of plot in developed sector, she was allotted plot no.26 area 450 sq. mts., in sector 14-A of Noida, and thereafter its area was enhanced by 112.5 sq. mts., which was lying between sector 26 and 27, against the Rules, as it could not have been allotted without due publication; that Sector 14-A was reserved only for the officers of Noida and could not have been allotted to any other private person,
(iii) that plot no.27-A in Sector 14-A, which was reserved for Government Guest House was allotted after conversion to Sri Rajiv Kumar, Deputy Chief Executive Officer, Noida (the appellant of Criminal Appeal No.4717 of 2012) in violation of Rules,
(iv) that several plots were allotted to different influential as well as political persons including brothers of Ex.Chief Minister Miss Mayawati, wrongly, illegally and against the rules and regulations of Noida, just to favour them and even without enclosing the requisite eligibility certificates by them, their applications were entertained and included in draw of lottery or otherwise and they were allotted plots out of turn.
4. That in this manner Smt. Neera Yadav in her capacity as CCEO of Noida, being a public servant in-conspiracy with some other officers of Noida as well as certain private persons, by use of corrupt and illegal means and by abusing her position, as such public servant without protecting the public interests obtained valuable things and pecuniary advantages to herself, caused such benefits to others and caused loss to Noida and by her actions, the Government, has been cheated and the facts disclose commission of offences by her with other punishable under section 120-B read with section 420 IPC and section 13(1)(d) read with section 13 (2) of Prevention and Corruption Act, 1988 (hereinafter referred as "P.C. Act").
5. Upon investigation with requisite prosecution sanction under section 19(1) of P.C. Act charge sheet was submitted with averments that Smt. Neera Yadav I.A.S. in capacity of CCEO of Noida from 10.01.1995 to 08.11.1995 and Shri Rajiv Kumar, I.A.S. in capacity of Deputy Chief Executive Officer of Noida (hereinafter referred as "Dy.CEO") from 14.06.1994 to 29.12.1995 entered into a criminal conspiracy with an object to cause pecuniary advantages to Rajiv Kumjar and herself, committed criminal misconduct and by abusing their official position as public servants;
(i) allotted residential plot No.27 in sector 14-A of Noida in favour of Rajiv Kumar.
(ii) while as per revised layout plan of sector in 1991 5 residential plots.25, 25A, 26, 27, 28 were earmarked for residences and one for guest house and after 10.02.1994 the uneven size of plot nos. 26, 27 & 28 was reorganised to 450 Sq. mts. each, keeping two plots for residential purpose and one for Guest House, with approval on 21.2.1994 by Smt. Neera Yadav, the then CCEO and by further reorganization, provision of 7.5 mts. wide road was made between residence of Chairman Greater Noida & plot No. 26 of Smt. Neera Yadav with enhancement of the area of plot no.26 from 450 Sq. mts. to 562.5 Sq. mts., plot no. 27 from 450 Sq. mts. to 525 Sq. mts. and plot no.28 from 450 Sq. mts. to 487.5 Sq. mts., earmarking plot no.27 for Guest House with approval of Smt. Neera Yadav on 31.05.1994.
(iii) On application of Sri Rajiv Kumar, Plot No.B-86 of 450 Sq. mts. was allotted to him in sector 51 and on his request for a plot of smaller size, after converting his plot to plot no.A-36 in sector 44 by second conversion he was allotted plot no. 27 of 300 Sq. mts in most prestigious sector 14-A on Delhi border with approval of Smt. Neera Yadav on 15.10.1994, communication on 17.10.1994 and execution of lease deed in his favour & in favour of his wife on 27.07.1995, and later on by getting the note presented through Smt. Rekha Devyani, the then Associate Architect and Sri Tribhuwan Singh Chief Architect planner, the area of plot no.27 allotted to Sri Rajiv Kumar was enhanced by 105 sq. mts., to total 405.00 Sq. mts., and thus the appellants committed offences punishable under section 120-B IPC and section 13(1)(d) r/w 13(2) of P.C. Act as well as substantive offences punishable under section 13(2) r/w 13(1)(d) of P.C. Act.
6. After filing of charge sheet, the Special Judge CBI framed charges against appellants whereafter apart from documentary evidence CBI produced as many as 23 witnesses to prove its case. Thereafter, the statements of appellants Sri Rajiv Kumar and Smt. Neera Yadav were recorded under section 313 Cr.P.C. and opportunity to produce defence evidence was given. After completion of evidence and hearing the learned counsel for parties, the Special Judge CBI Ghaziabad holding the appellants guilty of offences under sections 120-B IPC and Section 13(2) read with section 13(1)(d) of P.C. Act passed impugned order of conviction and sentenced each of them with rigorous imprisonment for a period of three years and fine of Rs.50,000/-, under section 120-B IPC and with rigorous imprisonment for a period of three years and fine of Rs.50,000/-, under section 13(2) read with section 13(1)(d) of P.C. Act and in case of default in payment of fine with simple imprisonment for an additional period of three months each.
7. Feeling aggrieved both the convicts have preferred appeals separately.
8. Lengthy arguments were advanced on behalf of both the appellants and the respondents. Sri G.S. Chaturvedi, learned Senior Counsel assisted by Sri Mangala Prasad Rai and Sri Samit Gopal, learned counsel for the appellant Rajiv Kumar in Criminal Appeal No.4717 of 2012 and Sri Ravi Kant, learned Senior Counsel assisted by Sri S.K. Yadav and Sri Shreesh Chandra, learned counsel for the appellant Smt. Neera Yadav in Criminal Appeal No.4888 of 2012, submitted detailed arguments in appeal.
9. The entire records of court below and departmental files relating to sanction to prosecute the appellants in original from the Department of Personal & Training, North Block, New Delhi, which were summoned during the trial as well as in appeal upon application of appellant Smt. Neera Yadav and during arguments, learned counsel for the parties also carried me to the original documents on records of Special Trial, the records relating to prosecution sanction summoned in appeal, papers including the Exhibits, which were part of paper book as well as those which were left to be made part of paper book due to error of some officials of the registry.
10. Learned counsel for the appellant Rajiv Kumar in Criminal Appeal No.4717 of 2012 submitted that there is no evidence on record to connect the appellant with the offence in question; that charge sheet against him and appellant Smt. Neera Yadav was filed upon faulty investigation; that no valuable thing or pecuniary advantage was obtained by appellant and no loss was caused to the Noida, by any act of the appellant; that the appellant has performed his duty in ordinary course of business of Noida on account of holding the office of Dy.CEO of Noida; that appointing authority of appellant is President of India with delegated powers to Prime Minister of India and the prosecution of appellant may proceed only with the prior sanction of prosecution by the Prime Minister of India; that there is no valid prosecution sanction against the appellant by the Prime Minister and the sanction in fact has been granted by Sri D.P. Khatri, the Under Secretary which may not be considered to be a valid prosecution sanction; that it is proved from the evidence on record that plot no.27 in Sector 14-A was never a guest house rather plot no.28 was the guest house and, so the appellant may not be held guilty for alleged conversion of plot no.27 in Sector 14-A from guest house to residential plot; that in any case by conversion of a plot reserved for guest house to residential plot, no change in the nature of user of plot did take place as guest house and residence, both comes within one and same category and by such conversion, the appellant may not be held guilty of getting the user of land changed in contravention with law; that there is no evidence on record to show that any cuttings in the note of S.P. Gautam were made subsequently with alleged malafide intentions to cause undue advantage to the appellant; that by conversion of plot from Sector 51 to Sector 14-A, the appellant has actually suffered a loss towards conversion charges as well as value of the enhanced area of 105 sq. mts., which was found in excess in adjoining plot no.28 and was taken by appellant on payment on additional charges so as to save Noida from loss of its value as this strip would have been of no use for any other; that it is wrong to say that the appellant was instrumental in any maneuverings or, in getting the allotment of additional area of 105 sq. mts. made in his favour, rather it was done in ordinary course of business of Noida and its allotment in favour of appellant on 5.11.1995 was approved by competent authority, co-accused appellant Smt. Neera Yadav the then CCEO of Noida.
11. He further submitted that there is no evidence on record to show that the then associate architect/ town planner Smt. Rekha Devyani and Chief Architect Planner S.P. Gautam or anybody else presented proposal or moved files with an intention to fulfill the desires of Rajiv Kumar and to cause pecuniary advantage to him, under his instructions or on account of any criminal conspiracy between them; that if above persons acted wrongly and illegally in above process, they are also guilty of the same offence for which, the appellant has been charged and convicted and ought to have been tried together and since they were not prosecuted the conviction of appellant is liable to be set aside; that there are material contradictions in the statements of prosecution witnesses; that the learned trial court has acted wrongly in relying on the evidence, which is not legally admissible; that there is no evidence on record to show that any subsequent changes were made in the proposal dated 28.5.1994 Ext. A-16 by SP. Gautam, the then Chief Architect Planner; that the then town planner Rekha Devyani, associate Architect S.P. Gautam Chief Architect Planner and his successor Tribhuwan Singh, Senior Development Manager G.C. Tiwari, and the then Deputy Chief Executive Officer Dev Dutt, who are alleged to have acted wrongly and illegally have not been made accused or prosecuted for the offences; that there is no evidence to show that after retirement, P.W.19 S.P. Gautam had ever visited the office and the record of Ext. A-16 or paper no.23-A was within his assess for making any alleged changes in the note; that further there was no reason for keeping the copy of such note paper no.23-A in his possession by P.W.21 Dev Dutt Ex-Dy. CEO for a period of about five years; that the Investigating Officer has admitted that in fact this is a case of one conversion of plot no.B-86 in Sector 51 to plot no.27 in Sector 14-A, as the conversion to plot no.A-36 in Sector 44 was never requested and was totally unwarranted; that there is no evidence to show any pre-meeting of minds or criminal conspiracy between the appellants Rajiv Kumar and Smt. Neera Yadav; that the prosecution has exaggerated the matter unnecessarily; that even if a little favour was given to appellant Rajiv Kumar or any discretion was exercised in his favour by appellant Smt. Neera Yadav CCEO in making conversion of his plot from sector 51 to plot no.27 in Sector 14-A or in enhancing its area, it was a matter of an adjustment like an adjustment made inter-se passengers in respect of reserved berths/seats in train according to their convenience and for such favour even if some rules, regulations or bye-laws were not followed or were not taken care of, the same may not come within the category of an illegal act so as to come within the category of an offence of committing criminal conspiracy or criminal conduct with co-accused Smt. Neera Yadav.
12. That the appellant has an unblemished career of more than 29 years and prosecution has failed to bring home the charges against him; that the learned trial court acted wrongly in relying on the untrustworthy evidence of prosecution witnesses and misread the evidence on record; that the impugned order of conviction and sentence is wrong on the facts and law and is liable to be set aside and the appellant is entitled for an order of acquittal.
13. Learned counsel for the appellant Smt. Neera Yadav adopted all above arguments and in addition thereto submitted that the impugned order of conviction and sentence is wrong on facts and law and has been passed on wrong assumptions; that there is nothing on record to show that there was any pre-meeting of the minds between two appellants Rajiv Kumar and Smt. Neera Yadav; that Smt. Neera Yadav had no knowledge regarding allotment of plot to Rajiv Kumar till 15.10.1994; that two appellants have not been charged with same or similar charges and though appellant Smt. Neera Yadav has been charged for committing criminal conspiracy in allotting additional area of 105 sq. mts. to appellant Rajiv Kumar's plot no.27 from the plot of guest house 28 but appellant Sri Rajiv Kumar has not been charged for criminal conspiracy in getting same additional area allotted in his favour; that since the two accused were holding the office of Dy.CEO and CCEO of Noida and had to meet almost every day for consultations or meetings in ordinary course of business/work of Noida, they cannot be said to have committed any criminal conspiracy without there being any specific and direct evidence in this respect; that the order of prosecution sanction issued by Sri D.P. Khatri, the Under Secretary does not make a valid prosecution sanction; that allotment of plot or changing of plot from one sector to another or enhancing the area of plot allotted to Rajiv Kumar and his wife even if found to be against rules, regulations or bye-laws, it may be considered to be irregular only and may not considered to be any illegal act so as to bring the appellant within the purview of an offence under section 120-B IPC or section 13 (1)(d) read with section 13 (2) of P.C. Act; that the appellant Smt. Neera Yadav being CCEO of Noida as well as head of the department of Noida authority was duty bound to approve the proposals or resolutions brought before her in ordinary course of business/work and for doing so she may not be held guilty for committing any criminal conspiracy under section 120-B IPC or committing of any offence of criminal misconduct under section 13(1)(d) read with section 13 (2) of P.C. Act; that there are material contradictions in the statements of prosecution witnesses; that the evidence on record shows that the Prime Minister/competent authority did not apply mind in granting prosecution sanction against the appellants; that the appellant is not alleged to have received any valuable thing or peculiarly advantage by corrupt or illegal means herself or with any other person by abusing her position during her tenure as CCEO of Noida.
14. Per contra, in reply to the arguments advanced on behalf of appellants, Sri N.I. Jafri, learned counsel for C.B.I. supporting the impugned judgment and order of conviction and sentence, contended that the impugned judgment and order of conviction and sentence is absolutely correct; that the appellants Sri Rajiv Kumar and Smt. Neera Yadav were Dy.CEO and CCEO of Noida, respectively and in conspiracy with each other have acted wrongly, illegally and arbitrarily in the matter of allotment of plots in their favour, in favour of their kith and kin as well as in favour of different persons mentioned in F.I.R. by making misuse of their offices, as Dy. C.E.O. and CCEO of Noida and abusing their positions as public servants and acted wrongly, illegally and arbitrarily flouting the rules and regulations of authority as well as terms and conditions mentioned in the brochures of different allotment schemes and have caused loss to the authority and obtained valuable things or pecuniary advantages to themselves; that it is fully proved from the evidence on record that in furtherance of criminal conspiracy with each other and misuse of their offices as public servants by the appellants, plot no.27 was allotted to appellant Rajiv Kumar by maneuvering the records and getting the note in this respect moved and approved by appellant Smt. Neera Yadav without there being any reason for reorganization of plots illegally against the rules and regulations; that it is proved from the evidence on record that the appellants were habitual of arbitrary working and used to change the areas as well as nature and user of different plots against the rules every now and then according to their wishes and convenience for obtaining advantage, without there being any reason for such change and without caring for the rules and regulations; that in Sector 14-A, plot no.28 was initially reserved for guest house, but during the course of time some changes were made and the guest house was shifted from plot no.28 to plot no.27, and again when appellant Rajiv Kumar desired to get it allotted the plot no.27 in his favour in order to satisfy the demand of appellant Rajiv Kumar, by getting another proposal moved through their subordinate officers, in the name of reorganization of plots, the user was again changed by appellant in the manner that guest house was again shifted to plot no.28 so as to facilitate allotment of plot no.27 in favour of Rajiv Kumar; that under the various schemes of allotment of plots launched of Noida from time to time, plots of different sizes and categories were advertised for allotment, in different sectors and six sizes of residential plots viz. 112.50, 162, 200, 250, 350 and 450 sq.mts. were proposed in different schemes under 6 different categories of persons, who may have applied for a particular category; that as per universal rule under any scheme of the Development Authority, one person or members of his family can get allotted only one plot under any of the categories or scheme for which he is eligible and cannot get allotment of more than one plot; that the maximum area of the largest size of residential plots advertised was 450 sq.mts. under any of the various schemes launched by Noida (which was only 350 sq. mts. in the scheme in which appellant Smt. Neera Yadav was allotted plots), and nobody could have been able to get it allotted a larger residential plot than of largest having an area over 450 sq.mts.; that the appellants wilfully flouted the rules and regulations of authority in wrongful, illegal & arbitrary manner, as appellant Smt. Neera Yadav, by making misuse of her position as public servants after closure of allotment scheme 1994 (i), on her ante-dated incomplete application got allotted a plot of 300 sq. mts. in other sector and converted it with plot no.26 area 450 sq. mts. in sector 14-A for her residence and thereafter by making provisions of 7.5 mts. wide road converted it in two sides open plot and further enhanced the area of her plot by 112.50 sq. mts. to 562.50 sq. mts.; that similarly appellant Rajiv Kumar, who had applied and was allotted a plot of 450 sq. mts. in Sector 51, moved an application for conversion of his plot to a smaller plot in Sector 14-A and in furtherance of criminal conspiracy with appellant Smt. Neera Yadav not only managed to get it converted with plot no.27, (after getting changed its user from guest house to residential) area 300 sq. mts. but subsequent to execution of lease deed, also got allotted an additional area by 105 sq. mts. enhancing it to 405 sq. mts.; that according to scheme of Sector 14-A, which was illegally reserved for the officers and employees of Noida, only an earlier cancelled plot could have been allotted to an officer or employee by way of conversions, but plot no.27 which was guest house and was not a cancelled plot illegally converted to residential plot and was allotted to appellant Rajiv Kumar, Dy. C.E.O. Noida in furtherance of criminal conspiracy with appellant Smt. Neera Yadav, the then CCEO.
15. That in cases of corruption in conspiracy with the officers or persons concerned, there can be no direct evidence and such cases are to be considered on the basis of circumstantial evidences; that the circumstantial evidence available on record points not only one but all the four fingers towards appellants showing that they agreed to do or cause to be done wrong and illegal acts as well as acts by illegal means, in furtherance of criminal conspiracy between them and got the plot allotted to appellant Rajiv Kumar by way of conversions and its area enhanced as per their choice in wrong, illegal and arbitrary manner by making misuse of their offices as public servant and obtained valuable thing/pecuniary advantage to themselves as well as caused undue loss to the Noida; that resettlement of plot nos.26 to 28 and changing their dimensions and area, every now and then as per their wishes and choice of the appellants without following the relevant rules of the Noida, shows that the appellants had made a mockery crossing all the limits of arbitrariness in performance of working in affairs of Noida; that it was wholly upon their arbitrary decision to allot a plot in favour of a person of their choice even if, he may not be eligible or to refuse from allotting it to a person not of their liking even if he was eligible; that it is wrong to say that all the acts were done by appellant Neera Yadav CCEO in ordinary course of business of Noida and the approval given by her to allotment of plot as well as for enhancement of area of plot of appellant Rajiv Kumar were not in accordance with law; that being CCEO the appellant Smt. Neera Yadav was not bound to approve each and every proposal brought before her despite its being against the rules and regulations of the authority and she was equally empowered and competent to raise queries for the need and justification of moving such note or proposal as well as to disapprove the proposals so brought before her.
16. That it is wrong to say that the prosecution sanction given in this case for prosecuting the two appellants is wrong or invalid or has not been issued by the competent authority or has been issued without due application of mind; that the prosecution sanction has been issued by competent authority after considering all the records and after applying mind to the facts, circumstances and entire material evidence of the case; that under Secretary was competent enough to issue order of prosecution sanction for and on behalf of Prime Minister of India; that there is no iota of evidence to show any defect in prosecution sanction and there is nothing on record to show that due to alleged error, omission or irregularity in grant of prosecution sanction, the appellants have been prejudiced in any manner and to any extent or thereby failure of justice has occasioned; that the sanctioning authority is not required to make a trial of entire case before grant of sanction and the purpose of prior sanction is only to give protection to the government servant against frivolous litigations and unnecessary harassment; that provisions of section 19 (3) of Prevention of Corruption Act provides that no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, on the ground of absence of, or any error, omission or irregularity in the sanction required under sub-sections (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
17. That it is wrong to say that charges framed against the appellants are wrong, defective or incorrect on any ground that something has missed or omitted from being mentioned therein; that the appellants are senior IAS Officers having full knowledge of their actions and inactions and the charges levelled against them are correct and perfect and for mere omission or missing of any fact or certain words, in any of the charges framed against them, they may not take any advantage and trial may not be vitiated on this score; that Section 464 of the Code of Criminal Procedure provides that no judgment or order shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charges including any misjoinder of charges, unless, in the opinion of the Court of appeal, a failure of justice has in fact been occasioned thereby.
18. That it is wrong to say that there are any contradictions in the prosecution evidence or prosecution evidence is lacking on any point; that it is wrong to say that appellants have not committed any willful offence or illegal acts and that their acts were in conformity with law; that the evidence on record completes the chain of circumstances, which points out that appellants have committed offences deliberately well within their knowledge and none other than the appellants have committed such offences; that on the basis of evidence on record, the charges against the appellants are proved to the hilt and beyond any reasonable doubt; that there is nothing to suggest even that not the appellants, but someone else may be the real culprits; that the appeal has been filed with absolutely wrong and baseless allegations and is liable to be dismissed.
19. Upon hearing learned counsel for the parties and perusal of record, certain facts which are not disputed between the parties, rather are admitted to the appellants, are being mentioned as under:-
(i) appellant Rajiv Kumar being Dy. C.E.O., Noida applied for a plot in 'Residential Plot Scheme (iii) of Noida' in sectors 41, 49, 51 and 53 on 16.8.1994 under category 6 for largest size of plot of 450 Sq. mts. with required demand draft of Rs.50,000/-.
(ii) on 21.9.1994, plot no. B-86 was allotted to appellant Rajiv Kumar in Sector 51.
(iii) on 27.9.1994 on allotment letter was issued and the same day appellant Rajiv Kumar moved an application for conversion of his plot to a smaller plot in sector 14-A.
(iv) on 15.10.1994, appellant Rajiv Kumar was allotted plot no.A-36 in Sector 44 by way of conversion.
(v) on 15.10.1994, appellant Rajiv Kumar again moved application for a smaller plot in Sector 14-A by way of conversion, and not in Sector 44.
(vi) on 17.10.1994, plot no.27 of 300 sq. mts. in Sector 14-A was allotted to appellant Rajiv Kumar.
(vii) on 27.7.1995, lease deed of plot no.27 measuring 30 x 10 mts. total 300 sq. mts. was executed in favour of appellant Rajiv Kumar and his wife Smt. Neeva Kumar.
(viii) on 26.10.1995, wife of appellant Rajiv Kumar moved an application for enhancement of area as well as extension of width of plot no.27 by at least 3.5 meters on which on 28.10.1995, Smt. Rekha Devyani, the then Town Planner, Noida submitted a proposal that the desired width 3.5 x 30 meters may be given from adjoining plot No.28 and the proposal so presented was approved by appellant Smt. Neera Yadav on 5.11.1995.
(ix) That vide letter dated 6.11.1995 paper No.8ka/70, the appellant Rajiv Kumar and his wife were informed of extension of width of their plot and area by 105 sq. mts., after which an undated note was submitted by Project Engineer stating that "As per the discussions held in this regard the boundary wall of plot no.28 is being constructed with the dimension of plot as 16.25 x 30 mts. as shown in layout plan and the 3 meters wide extra space which is available at site has been included in the dimension of plot no.27 which will now be measuring 13 x 30 mts." and the same was approved by appellant Rajiv Kumar on 1.12.1995. The above note followed by letter dated 19.12.1995 of Project Engineer paper no.8ka/71 intimating the Development Manager residential of the revised area of plot no.27 as 13 x 30 mts.
(x) on 8.1.1997 lease deed of additional area of 105 sq. mts. was executed in favour of appellant Rajiv Kumar and his wife with total area 405 sq. mts. as against 390 sq. mts. as per paper nos.8/Ka 70 & 71 dated 1.12.1995 and 19.12.1995, mentioned above respectively.
(xi) on 21.9.1994, (when plot no.B-86 in Sector 51 was allotted to appellant Rajiv Kumar), Smt. Rekha Devyani, the then town planner submitted a proposal in consultation with appellant Rajiv Kumar and Chief Architect Planner for change of plot no.27 reserved for guest house in sector 14-A in residential plot, which was approved by appellant Smt. Neera Yadav on 24.9.1994 vide Exhibit A-17. The above proposal starts with "आज उप मुख्य कार्यपालक अधिकारी (Dy. CEO) व (CAP) के साथ सेक्टर 14-A के विन्यास मानचित्र के बारे में विचार विमर्श हुआ"
(xii) on 11.2.1994, the three plots of sector 14-A of the size of 823.20, 665.60 and 534.85 sq. mts. were re-organized with three plots of 450 sq. mts. each (Annexure No.A-15).
(xiii) On 28.5.1994 a proposal was submitted by S.P. Gautam Chief Architect Planner for making a provision for 7.5 meters wide road between residence of CCEO of Greater Noida and plot no.26 of appellant Smt. Neera Yadav, to re-organise the areas of three plots as well as to further enhance the area of plot no.26 from 450 sq. mts. to 562.50 sq. mts. Above proposal was approved by appellant Smt. Neera Yadav on 31.5.1994.
(xiv) Sector 14-A is the most developed and prestigious sector of Noida on the Delhi Border, was reserved for persons of privileged category like officers and officials of Noida (not available to general public through advertisements under any scheme of Noida) and were to be allotted only to influential officers of Noida according to choice of CCEO of Noida on individual basis.
20. For better appreciation of changing spot position of relevant site in sector 14-A, the site plans proved and Exhibited as Exhibit A-18 to A-20 are being reproduced on following pages:-
21. The above maps show the changing picture/position of the site as well plots so allotted to appellants by conversion (of which are was enhanced after converting their corner plot) in most developed and prestigious sector at stone throw distance of just 30-35 meters from Delhi Border surrounded by very wide range of green belts as well as wide roads on one side or the other.
22. The frequent changes made from time to time which are clear from above Exhibit marked maps of the site may be seen at a glance (in terms of area) in following table:-
Sl. No Plot No. Map No.1 Ext.A-18 July 1984 Map No.2 Ext.A-19 11.2.94 Map No.3 Ext.A-20 11.2.94 (wrongly showing Road in East) Map No.4 Ext.A-21 28.5.94 before cuttings Map No.5 Ext.A-22 28.5.94 after cuttings Map No.6 Ext.23 latest 31.10.99 w.e.f. 6.11.95 Area of appurtenant Green Belt in North Total Area of Plot with appurtenant Green Belt 1 26 630.00 450.00 450.00 562.50 562.50 562.50 783.86 1346.36 2 27 482.50 450.00 450.00 525.00 300.00 405.00 535.15 940.75 3 28 371.25 450.00 450.00 487.50 487.50 487.50 593.4 1080.71 4 Unnumbered Plot towards West NIL 529.35 304.35 90.00 304.35 Trapezium of (3.16+9.57)/2x30=190.95 49.8 240.75 5 Green Belt Area towards West Rectangle of (7.93x30)=237.90 Rectangle of 7.93x30=237.90 Rectangle of 7.93x30=237.90 Trapezium (7.23+7.93)/2x30=227.4 Rectangle of (7.93x30) =237.90 Trapezium of (7.93+7.50)/2x30 =231.45
-
231.45 6 Total Area 2311.65 2706.29 2481.29 2493.89 2445.89 2469.74
-
3840.02
23. The above maps and tabulation chart shows that the spot position of Sector 14-A as shown in map Ext. A-18 of July 1984 remain unchanged for a period of 10 years from 1984 to 1994 and was frequently changed for as many as 5 times during the short tenure of posting of appellant Smt. Neera Yadav as CCEO of Noida from 10.1.1994 to 8.11.1995. It is also noteworthy that on map Ext. A-20 dated 11.2.1994 the road in East of Plot No.26 has been wrongly shown, as the above road was introduced for the first time vide proposal Ext. A-16 dated 28.5.1994 (as approved by appellant Smt. Neera Yadav on 31.5.1994) while map Ext. A-23, which shows the latest position as on 31.10.1999, actually shows the position of changes effected on 6.11.1995 in view of the approval of proposal for enhancement of area of plot no.27 by appellant Smt. Neera Yadav on 5.11.1995 and no changes were made after transfer of appellants.
24. It is also pertinent to mention that the boundaries of various plots, which have been mentioned hereinbefore or hereinafter, have been mentioned with respect to the boundaries given in the lease deeds and supplementary lease deeds of appellants and if anywhere any difference in description of boundaries is found that may be due to the fact that North is not exactly upward on paper and is tilting towards left top corner in the maps.
25. The maps also show that plot no.27 having been allotted to appellant Rajiv Kumar is bounded with giant sized plot for palatial house of his boss and co-accused appellant Smt. Neera Yadav, the then CCEO of Noida in East, Guest House of Noida followed by about 8 mts. or 26 feet wide green belt and Delhi Border in West about 10 meters or 33 feet very wide green belt in North and 40 feet wide road in South.
26. The maps Ext. A-18 to A-23 also show as to how frequently and arbitrarily the position as well as sizes of above plots which were not touched for a single time during the period of ten years from 1984 to 1994 were changed for as many as five times during the period of less than twenty months of posting of appellant Smt. Neera Yadav from 10.1.1994 to 8.11.1995 to accommodate or facilitate herself, her deputy co-accused Rajiv Kumar and persons of her choice in the matter of allotment of plots by way of conversion in sector 14-A followed by allotment of another plots to appellants in the name of and under the garb of enhancement of area of their plots, wrongly, illegally and arbitrarily against the rules and regulations of Noida.
27. Article 13 of the Constitution of India provides that all laws in force immediately before commencement of the constitution in so far as they are inconsistent with the provisions of part IIIrd relating to "Fundamental Rights", shall to the extent of such inconsistency be void and the State shall not make any law which takes away or abridges the rights conferred by above part IIIrd and any law made in contravention of this clause shall to the extent of the contravention be void. Article 13(3), further defines that "law includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India, the force of law.
28. Article 14 of the Constitution of India provides right to equality and states that, "the State shall not deny to any person 'equality before the law' or the equal protection of the laws, within the territory of India". In view of above provision, our constitution provides equity and equality before law to every citizen of India and any law which deprives any citizen or class of citizen from his equal rights that will have no legal sanctity and will remain void ab-initio without its being challenged or declared to be void.
29. In view of above provisions contained in Constitution of India, the provisions if any made by Noida with regard to conversion policy for converting a plot from one sector to another or for reserving any sector or its part for a particular section of public or officers in exclusion of general public is void ab-initio and may not be considered to be legal or in-confirmity with law. Each and every plot is required to be open for allotment to general public through due advertisement and any policy for allotment in contravention of the general rule stands wrong and illegal. Similarly, the alleged policy permitting the allotment of a plot to a person in one sector and converting it to another developed sector is also wrong and illegal as it violates fundamental rights and provides undue advantage to the allottee enabling him to get more valuable plot than which was allotted to him and at the same time deprives the general public of the opportunity of getting plots allotted in such developed sectors. It may not be disputed that development authorities do adopt such a practice of not allotting the plots in developed sectors to general public by draw of lots and they get the allotment of plots in remote or undeveloped sectors and the plots in developed and prestigious sectors are allotted to influential persons by way of conversion.
However, irrespective of the fact that the conversion policy was unconstitutional, the case of appellants is being considered on the basis of facts on record without prejudice to their rights on above account.
30. It is also pertinent to mention that after allotment of plot of 450 sq. mts. in Sector 51 appellant Rajiv Kumar, who had prayed for a smaller plot in his conversion application dated 15.10.1994 stating that he is unable to afford a plot of above size of 450 sq. mts., subsequently got another plot of 105 sq. mts. allotted under the garb of enhancement of area of his plot upto 405 sq. mts. (just equal to the size of plot, he was initially allotted) in connivance with appellant Smt. Neera Yadav.
31. The evidence on record shows that the appellant Rajiv Kumar being Dy.CEO of Noida had full and complete knowledge of allotment from the time of draw of lots on 21.9.1994 itself, and before getting the allotment letter issued by department on 27.9.1994 in pre-planned manner in conspiracy with appellant Smt. Neera Yadav, got a proposal Ext.A-17 presented through Town Planner Smt. Rekha Devyani for changing guest house from plot no.27 to plot no.28 and further to reduce its area to 300 sq. mts. so as to create a plot befitting the needs of appellant Rajiv Kumar. It may not be believed that upon draw of lots on allotment of plot in the name of Dy.CEO of Noida, the staff would not have immediately communicated to Dy.CEO appellant Rajiv Kumar.
32. Above proposal of Rekha Devyani dated 21.9.1994 Ext.A-17 starts with "आज उप मुख्य कार्यपालक अधिकारी (Dy. CEO) व (CAP) के साथ सेक्टर 14A के विन्यास मानचित्र के बारे में विचार विमर्श हुआ"
33. As far as obtaining valuable thing or pecuniary gains by appellants Rajiv Kumar or Neera Yadav and causing of such loss to the Noida on account of commission of above acts of criminal misconduct by appellants in furtherance of criminal conspiracy between them, I find no force in the arguments of learned counsel for appellant Rajiv Kumar that he had bonafidly purchased plot no.27 after payment of its value and had to bear conversion charges also because the appellant Rajiv Kumar, having been allotted plot no.B-86 of 450 sq. mts. in sector 51, got it converted to plot no.27 of 300 sq. mts. in sector 14-A and despite allotment of another plot of 105 sq. mts. in the name of enhancement of its area to 405 sq. mts., does not claim to have made payment of conversion charges in respect of entire area of his plot of 405 sq. mts. or for any area beyond 300 sq. mts. and thus undisputedly, not only he obtained valuable things and pecuniary advantage for himself but appellant Smt. Neera Yadav also caused benefit for him by not demanding conversion charges for the entire plot particularly in respect of enhanced area of 105 sq. mts., and at the same time they also caused loss to Noida to the same tune, on this account.
34. At the same time the appellant Smt. Neera Yadav, who had (i) mis-utilized 225 sq. mts. area of land by making provision of 7.5 mts. wide unwarranted road between residence of CCEO Greater Noida and her own plot no. 26 (ii) mis-utilized another 112.5 Sq. mts. area of land by getting it allotted to herself another plot of category-I, area 112.5 sq. mts. adjoining to her plot towards west in the name of unprayed and unwarranted enhancement of area of her plot no.26 to 562.50 sq. mts, (iii) by approving allotment of another plot of 105 sq. mts. in the name of enhancement of area of plot no.27 of her Deputy co-accused Rajiv Kumar, by 105 sq. mts. to 405 sq. mts., ultimately mis-utilized an area of 225+112.5+105=442.5 sq. mts. (and despite making over 105 sq. mts. area by decreasing area of guest house plot no.28) reduced the area of unnumbered plot from 529.35 sq. mts. to 190.85 sq. mts. with its Eastern and Western sides 30 mts. each, Northern side 9.57 mts. and Southern side only 3.6 mts. resulting in conversion of this unumbered plot in a Trapezium piece of waste land beyond any utilization, without caring for public property, in conspiracy with each other and thus committed criminal misconduct and obtained valuable things and pecuniary gains to herself as well as for her Deputy and caused pecuniary loss to the Noida not only in respect of the value of around 442 sq. mts. area of unnumbered plot, but also in respect of the value of entire 529.35 sq. mts. area of the unnumbered plot of, depriving Noida from its value, which could have been fetched by it on its allotment by way of conversion.
35. The evidence on record shows that appellants, who were CCEO and Dy.CEO of Noida, working together in the same office, used to meet each other almost daily in ordinary course of business and had entered into criminal conspiracy with each other in the matter of conversion of plot no.27 in favour of appellant Rajiv Kumar as well as in the matter of allotment of another adjoining plot of 105 sq. mts. to him in the name of enhancement of area extending width of his plot upto 3.5 mts. as per desire of appellant Rajiv Kumar on the false pretext of having it been emerged to be in excess from plot no.28 at the time of raising of its boundary wall.
36. It is the case of prosecution that paper no.23-A is the true copy of proposal dated 28.5.1994 presented by S.P. Gautam in which cuttings and interpolations were made subsequently as shown in Ext. A-16, later on for facilitating conversion of plot no.27 in favour of appellant Rajiv Kumar. It is not disputed that in above proposal Ext. A-16 there are cuttings and overwritings over 2 words and 1 figure. It is also not disputed that the above cuttings and overwritings have been made deliberately and so strongly that without expert evidence, the original words and figure beneath the cuttings/overwritings, may not be read.
37. Making of mistake is human nature and oftenly some mistakes do occur in ordinary course of working and their corrections are not and need not require any attention or suspicion. It is noteworthy that in official working some clerical mistakes do occur, of which correction may be required but for correction of any such bonafide/clerical mistake, cuttings are required to be made by single oblique or horizontal line with mention of correct word or figure above the lines with initials on such corrections so that even after the correction so made at time of preparation of note or proposal, the words or figure so wrongly mentioned cut and corrected may remain legible.
38. However the strong cuttings and overwritings made in order to make the original words or figures illegible, itself show malafides behind the cuttings and overwritings. The cuttings in above Exhibit A-16 dated 28.5.1994 itself show that they are not on account of clerical mistakes or inadvertent error but strong cuttings and overwritings have been made deliberately with ulterior motive to cause benefit to appellants and have been made so strongly that the matter beneath them may not be read by naked eyes even after efforts.
39. It is proved from the evidence on record from the statement of Dev Dutt, Ex. CEO of Noida that cuttings in Exhibit A-16. dated 28.5.1994 were made subsequently. The argument of appellants that prosecution has failed to prove that cuttings or interpolations in Exhibit A-16 dated 28.5.1994 were subsequently made by S.P. Gautam, has also no force. The copy of above note paper no.23-A without any cutting has been produced by P.W. 21 Dev Dutt(who was Dy.CEO at that time) proving it to be the true photo copy of Ext.A-16 signed by him and that its photo copy was obtained and kept by him after approval by CCEO on 31.5.1994 in view of repeated re-organization of plots. It has not been suggest to P.W.21 Dev Dutt during lengthy cross examination by any of the two appellants that the copy paper no.23-A produced by him as true photo copy of original proposal Ext. A-16 without any cuttings, is not the true copy of the original or has been forged in connivance with prosecution or otherwise. There is no suggestion to the witness of having any grudge or enmity with any of the two appellants. It is also pertinent to mention that in her statement under section 313 Cr.P.C. in reply to question no.73 with respect to the fact, stated by prosecution witness 21 Dev Dutt that paper no.23/A is photo copy of Ext. A-16 before any cuttings, appellant Smt. Neera Yadav has stated that " eSa ugha crk ldrh fd ;g ewy uksV dh Nk;k izfr gS ;k ugha". Such an evasive answer of ignorance shows that the appellants could not dare to even suggest that paper no.23-A is not true photo copy of Ext. A-16 before any interpolations, which were made subsequently.
40. It is also pertinent to mention that the expert evidence on record, proves that the words and figures, which were hidden beneath the strong cuttings and overwritings were the words (i) ^^xsLV gkml* (ii) ^पुनर्नियोजित djrs* and (iii) '300' in Ext. A-16 on investigation were found to be (i) ^vkiwfrZ* (ii) ^c<+krs* and (iii) "525", respectively, as mentioned in paper no.23-A without any such cuttings.
41. It is settled principle of law as has also been laid down by a Division Bench of High court of Andhra Pradesh, in the case of Jai Laxmidevamma Vs. Janardhan Reddy reported in AIR 1959 AP 272(b) that:-
"If anything in examination in Chief of a witness is disputed, and opponent avoids asking questions on those matters in cross examination, the evidence in examination in Chief must be accepted, unless of course there are inherent improbabilities".
42. Similarly, in the criminal appeal of Sarwan Singh Vs. State of Punjab reported in 2003 (1) SCC 240, the Apex Court has held that "whenever opponent declines to avail himself of opportunity to put his case in cross examination- the evidence tendered on that issue ought to be accepted".
43. The contention of prosecution that cuttings have been made subsequently by its writer S.P. Gautam, is based upon the possibility in view of facts and circumstances of the case and even in case of its not having been proved to the hilt, it does neither adversely affect the case of prosecution nor benefits the appellants because the above fact would have relevant and required proof only in case of prosecution of S.P. Gautam for making such cuttings. In this matter the mere proof of fact that cuttings/maneuverings were made subsequently (as proved from the testimony of P.W.21 and evidence on record) is sufficient to establish the case of prosecution.
44. In view of above evidence and legal positions, I find that there are no inherent improbabilities in correctness of statement of P.W. 21 that paper no.23-A is photo copy of resolution and Ext. A-16 dated 28.5.1994 obtained by him after approval by appellant Smt. Neera Yadav before any cuttings which are proved to have been made deliberately and subsequently, it is proved from the evidence on record that in paper no.23-A, cuttings/interpolations were made at some subsequent stage.
45. Clause 11 of 1994 (iii) scheme states that the area of a plot allotted or handed over may vary from the size of the plots advertised in the scheme and applied for, and a marginal increase or decrease in area upto a maximum of 20% on either side may be found and to meet such an eventuality of any difference of area on the spot, no unnecessary dispute may be raised and in case of any such increase or decrease the value of plot allotted will be increased or decreased proportionately. However, in case of increase or decrease in the area of plot allotted is more than 20%, the allottee may refuse to accept allotment on the ground of such variation and will be entitled to refund of his registration money and the authority may not forfeit any part of it, which the authority can, in case of refusal to accept allotment by allottee without any such reason.
46. From above clause, I find that the provisions for increase or decrease have been made to avoid any dispute in case of any marginal increase or decrease of area as it a very small area is there on the spot which is less than 20% of area allotted, the same may also be allotted to the allottee on payment of its proportionate value and the provisions may not be continued to enhance the area of plot initially to any area more than 20% and so the enhancement of area of 105% sq. mts. in the name of extension of width making 35% enhancement of original area of plot no.27, is absolutely wrong, illegal and arbitrary.
47. In view of above facts, it is clear that any increase over and above the maximum limit of 20%, as mentioned in clause 11 of brochure mentioned above will fall in the category of fresh allotment of plot, which is prohibited in the eligibility clause itself. In any case, in the alleged conversion policy or anywhere else, there is no provision for enhancement of area of a plot and in any case after execution of lease deed the question of enhancement of area of a plot does not arise, and certainly falls within the category of fresh allotment of a plot.
48. It is not disputed that the appellant being Dy. CCEO of Noida was entitled for allotment of a plot in sector 14-A by conversion under the alleged conversion policy, the conversion scheme provides that only cancelled or surrendered plots can be given in conversion and since plot no.27 in sector 14-A was neither a cancelled plot nor a surrendered plot, so it could not have been allotted to him by way of conversion. The learned counsel for appellant submits that though as per rules, for conversion of plots in other sectors the plot to be given by way of conversion was required to be a cancelled or surrendered plot, but this rule was not applicable for conversion of plot in Sector 14-A. Be that it may, but if such rules are framed for giving benefit to one section of VIPs or influential persons, as against the interests of general public is unconstitutional and may not be considered to be in conformity with law being against the spirits of Articles 13 and 14 in Chapter II of Constitution of India.
49. So, even in case of conversion of plot despite framing of rules and passing of an illegal & constitutional policy to favour oneself or persons of one's choice, the development authority may not be correct to give a plot of 300 sq. mts. in most developed and prestigious sector on Delhi boarder in lieu of exchange from undeveloped sector or to enhance its area by 35% to 405 sq. mts. and such conversion and enhancement are absolutely wrong, illegal and arbitrary and has been dishonestly obtained by appellants in pre-planned manner by making misuse of their offices as public servant being CCEO and Dy.CEO of Noida.
50. The learned counsel for appellants have failed to show any provision for enhancement of area in the conversion scheme so passed by Noida or otherwise which permits conversion of plot in more developed sector and further its enhancement. In absence of any such provision in conversion scheme or other even in view of general rule of ordinary prudence, the allotment of plot no.27 of 300 sq. mts. in Sector 14-A to appellant Rajiv Kumar in lieu of plot no.B002G in Sector 32, by way of conversion is absolutely wrong and illegal.
51. The argument of learned counsel for the appellant Sri Rajiv Kumar justifying enhancement of area of his plot no.27, on the ground that its dimensions were not suitable for construction of a house, has no force. Istly, because Noida, which deals with allotment of residential plots is not supposed to allot a plot unsuitable for construction of a house even to general public, what to say of its allotment to Dy.CEO and IIndly, appellant Rajiv Kumar, Senior IAS, the Dy. CEO, Noida having all time assistance and advice of town planner, chief architect etc. working under him, had full knowledge of the dimensions and size of the plot from the date of its allotment by conversion on 17.10.1994 and in case it was not suitable for construction of a house, he had every right and opportunity to refuse from accepting its allotment, but he neither refused to accept the allotment, nor made any whisper about inadequate dimensions nor made any demand for any additional width or area for a period of over 9 months, till execution of lease deed in favour of himself and his wife on 27.7.1995 and after 3 months from execution of lease deed and after a period of over one year from the allotment dated 17.10.1994, he become wiser and in furtherance of criminal conspiracy with appellant Smt. Neera Yadav got moved an application on 26.10.1995 through his wife for extension of width and area of his plot on the ground of alleged inadequacy of dimensions and amazingly enough simultaneously the same width and area as requested was reported by Project Engineer to have emerged (as a divine act by the grace of God) at the time of construction of boundary wall of guest house as excess land from adjoining plot no.28 and proved as a boon in disguise for appellants.
52. Undisputedly, the area of any plot or immovable property without shifting it to either side may not be reduced or enhanced under any imagination, even by way of magic or any divine act or with the grace of God.
53. In fact no such area was found in excess and the false story of finding it to be in excess from plot no.28 was cooked up to fulfil the desires of appellants, by actually pushing and shifting the plots in west of plot No.27 to further West and by taking the area of 105 sq. mts. from unnumbered plot in West of plot No.28 reducing it from 304.35 sq. mts. I find force in the arguments advanced by learned counsel for CBI that the enhancement of area was confined to 105 sq. mts. only keeping in mind following factors.
(i) the appellant Rajiv Kumar in order to make a ground for conversion of plot in Sector 14-A stated the need for a smaller plot and so by such enhancement the total area of his plot was being enhanced to 405 sq. mts. keeping it 10% lesser than originally allotted plot, else the entire area of unnumbered plot 304.35 sq. mts. of plot in West of plot no.28 could also have been found in excess on same of similar reason, (ii) that the area of 150 sq.mts. was not enhanced with a view that had 150 sq.mts. been emerged as excess area from plot no.28, upon allotment of the same to appellant Rajiv Kumar, the total area of his plot would have become 450 sq.mts. equal to area originaly allotted, falsifying his ground of conversion based on need for smaller plot and (iii) that the entire area of 304.35 sq. mts. could also not have been given to appellant Rajiv Kumar because (a) on finding so much area in excess it could have been treated separate plot, (b) on giving the entire area to him, it would have been a bit difficult to justify the double area, and (c) the total area of plot of appellant Rajiv Kumar, Dy.C.E.O. would have become 604.35 sq. mts., larger in size from the plot of his boss appellant Smt. Neera Yadav, which would not have been tolerable to his superior officer appellant Smt. Neera Yadav, the then CCEO of Noida that her deputy is holding a plot of 604.35 sq. mts. larger than her plot of 562.50 sq. mts. on the principle of "USKI SHIRT MERI SHIRT/SAREE SE ZIADAH SAFED KAISE"
54. Hence, Noida authority at its own invented a strip of only 3.5 mts. width and offered it to Rajiv Kumar in Golden plate with a plea that it has been found in excess from the area of plot no.28 at the time of constructions of boundary wall and is of no use for any purpose or for any person and appellant Rajiv Kumar very innocuously, in order to save Noida against loss of value of this 105 sq. mts. area, agreed to oblige Noida and bear the unwanted burden.
55. The above contradictory stands of requirement of 3.5 mts. width emerging of same width from plot no.28 as excessive and its approval by appellant Smt. Neera Yadav for extension of width by 3.5 mts., two days before handing over charge on her transfer also shows the dishonest and arbitrary acts of appellants were committed in furtherance of criminal conspiracy between them and amounts to criminal misconduct and cuts a sorry figure of working and affairs prevailing in Noida at the relevant time.
56. It is also noteworthy that conversion of plot no.27 from guest house to residential was done illegally and arbitrarily in contravention of rules and the argument of learned counsel for the appellants that in fact plot no.28 was the guest house and had been wrongly changed from 27 without adopting due procedure under rules and law and so its further conversion of guest house to plot no.28, may not be considered to be a conversion, has no force because the note itself states that (for no reason rather for the hidden reason of accommodating the wishes of Dy.CEO appellant Rajiv Kumar & CCEO appellant Smt. Neera Yadav), the conversion of guest house plot no.27 to residential and of plot no.28 to Guest House was proposed. It does not state that due to any mistake earlier plot no.27, which was residential plot was wrongly mentioned as guest house and for correction of such mistake, the plot no. 28 is to be marked as guest house and 27 as residential plot, as it were. Even if plot no.28 was originally a plot for guest house, as argued by appellant, since it was converted with residential plot by converting plot no.27, as guest house, even without due process of law, its re-conversion as above, without any whisper of any mistake in past or of any attempt to make things right, the two WRONGS may not make one RIGHT.
57. The learned counsel for appellant also submitted that since plot no.28 was nearer to Delhi Border, he would have preferred to get that plot by conversion without any change of plot reserved for guest house from 27 to 28, has also no force because such arguments are immaterial and there may be several reasons to prefer allotment of plot no.27 viz (i) to get a plot adjoining to his co-conspirator appellant Smt. Neera Yadav with, (ii) getting larger area of trapezium shaped green belt in North of plot no.27, or (iii) the appellant Smt. Neera Yadav could have been willing to keep her deputy and co-conspirator adjoining her plot and to keep herself at a distance from guest house or (iv) she may be of the view that guest house must not come between two appellants.
58. The arguments of appellant that charge of two conversions is wrong and not proved need no discussions as the conversion from sector 32 to sector 44 was neither prayed nor required and there was only one conversion, as has also been held by trial Court.
59. In cases based on charges of corruption, except in trap cases where accused is caught red handed at the time of accepting bribe, oftenly direct evidence may not be available and on the basis of circumstantial evidence inference has to be drawn in favour of or against the prosecution as the case may be. It is settled principle of law that it is only men who may speak lie and circumstances never speak lie.
60. As far as the conspiracy between the two appellants Smt. Neera Yadav and Rajiv Kumar is concerned it is proved from following events regarding allotment and conversion of plots and extension of its area.
(i) On applying plot of 450 sq. mts. plot by Rajiv Kumar and getting allotment of plot in his favour in sector 51 on 21.9.1994, the same day a proposal was presented by town planner Smt. Rekha Devyani for re-organization of area of plot nos.26, 27 and 28 and reducing the area of plot no.27 from 450 to 300 as well as its conversions from guest house to a residential plot which starts with "आज उप मुख्य कार्यपालक अधिकारी (Dy. CEO) व (CAP) के साथ सेक्टर 14A के विन्यास मानचित्र के बारे में विचार विमर्श हुआ" and was approved by appellant Smt. Neera Yadav on 24.9.1994 before issuance of allotment letter.
(ii) Despite moving proposal by Smt. Rekha Devyani and getting its approved by appellant Smt. Neera Yadav on 24.9.1994 and his plea that despite being Dy. CEO of Noida, he was unaware of the allotment until receipt of allotment letter dated 27.9.1994 and moving of application for conversion of the allotted plot to a smaller plot in sector 14-A the same day.
(iii) In order to establish no pre-meeting of minds between appellants despite application of conversion in sector 14-A, order for conversion in Sector 44, Ext. A-31 was issued on 15.10.1994.
(iv) Same day on 15.10.1994 appellant Rajiv Kumar moved another application Ext.A-32 for conversion in Sector 14-A instead 44, upon which the proposal Ext.A-34 was presented the same day and was also approved by appellant Smt. Neera Yadav the very same day.
(v) After execution of lease deed, on application of wife of appellant Rajiv Kumar on 26.10.1995 for extension of width by 3.5 mts., the same width was reported to have been found in excess from plot no.28 on 28.10.1995, the proposal for its allotment to appellant Rajiv Kumar by way of enhancement was approved by appellant Smt. Neera Yadav on 5.11.1995.
61. The learned counsel for appellant Smt. Neera Yadav has submitted that in the case of State of Madhya Pradesh Vs. Sheetla Sahai and others (2009) 3 SCC (Crl) 901, it has been held that for establishing criminal conspiracy under section 120-A IPC, it is necessary to show the meeting of minds of two or more persons, for doing or causing to be done an illegal act or an act by illegal means.
In above case from the material available on record, it was crystal clear that decision taken was a collective one and was required to be taken in the exigency of the situation and that even if there may be an error of judgment but then no material has been brought on record to show that they did so for causing any wrongful gain to themselves or to third party or for causing wrongful loss to the State.
The principle of law laid down or the interpretation of law made in above judgment, may not be disputed, but on facts of the case, the above case is distinguishable as it is not a case of collective decision taken in view of exigency of situation rather independent decision was taken at the level of appellant Smt. Neera Yadav, CCEO of Noida. It is proved from the evidence on record that there was pre-meeting of minds of appellants in pre-planned manner in furtherance of criminal conspiracy in view of such pre-meeting of their minds, between them were done with dishonest intentions of obtaining wrongful gains and such gains were obtained by them by causing wrongful loss to Noida.
62. In the case of Sherimon Vs. State of Kerala (2012) 1 SCC (Cri) 116 relied by appellant Smt. Neera Yadav in a case under sections 302 and 324 read with section 120-B IPC, the appellant being Managing Partner of a financial establishment called City Auto finance, allegedly hatched a criminal conspiracy to seize Auto Rickshaw financed by the Company, in furtherance of which accused nos.1 to 3 caused death of person, who was driving Auto Rickshaw. Considering the fact that appellant was not present at the spot of occurrence, in absence of any evidence regarding his alleged conspiracy with accused nos.1 to 3, it was held that on the basis of recovery of certain documents pertaining to said Auto Rickshaw, it may not be concluded that the appellant entered into a conspiracy with accused nos.1 to 3, to the extent of causing death of person rather it was only upto the extent to re-possess the auto rickshaw because of loan amount was not re-paid. The facts of the above case are wholly distinguishable from the present case and the above case law is not applicable to the present case.
63. In the case of Saju Vs. State of Kerala (2001) SCC (Cri) 160 relied by appellant Smt. Neera Yadav, it has been held that to prove charge of criminal conspiracy, the prosecution is required to prove that two or more persons had agreed to do or caused to be done, an illegal act or an act which is not illegal, by illegal means and mere motive in absence of any evidence of last seen in murder case by itself cannot be a proof of conspiracy.
This legal position laid down in above case, may not be disputed, but on the facts of above murder case under section 302 IPC, it is clearly distinguishable from this case.
64. In the case of R. Venkatkrishnan Vs. CBI (2009) 11 SCC 737, it was held that "criminal conspiracy takes place when there is an agreement to do or cause to be done an illegal act, or an act which may not be illegal but by illegal means and since conspiracy is generally hatched in secrecy, its direct evidence is therefore difficult to become available and criminal conspiracy can be proved on the basis of circumstantial evidence and/or by necessary implications."
In the above case, officials of two public sector Banks acted in such a way that transaction appeared to be an inter-banking transaction relating to call money, but the transaction was in fact done to help a private party to use public funds for private purposes and relying on an earlier decision, in the case of Mohammad Usman Mohammad Hussain Maniyar & Ors. v. State of Maharashtra (1981) 2 SCC 443, the Apex Court held that "the courts, however, while drawing an inference from the materials brought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is, thus, difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which the offences have been committed and the level of involvement of the accused persons therein are relevant factors. For the said purpose, it is necessary to prove that the propounders had expressly agreed to or caused to be done the illegal act but it may also be proved otherwise by adduction of circumstantial evidence and/ or by necessary implication."
65. In the case of Hema Vs. State Through Inspector of Police, Madras (2013) 10 SCC 192 relying on the principles of law laid down in 2012 9 SCC 532 in the case of Gajoo Vs. State of Uttarakhand, the Apex Court has held that "certain defects in investigation unless affects the very root of the prosecution case and is prejudicial to the accused, should not be an aspect of material consideration by the Court. Since, the Court has adverted to all the earlier decisions with."
and other case laws, it was held that "it is clear that merely because of some defects in the investigation, lapse on the part of the I.O., it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions etc., it is the obligation on the part of the court to scrutinize the prosecution evidence de hors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth."
66. The impugned judgment and order of conviction has also been assailed for want of valid prosecution sanction. The learned counsel for the appellants argued that the prosecution sanction has been accorded without due application of mind by the competent authority and the sanction order issued by Under Secretary to Government of India does not make a valid prosecution sanction.
67. The object of enactment behind framing of statutory provision for prior prosecution sanction in the matters of prosecution of public servants in respect of their official acts is that they should not be harassed unnecessarily on flimsy grounds for settlement of personal scores and the purpose behind the provision is not to shield the real culprits. So in matters of grant of prosecution sanction, the competent authority concerned is required to look into the evidence collected against the accused and examine the prima facie correctness of the allegations made or evidence collected and consider that in case the correctness of allegations is proved to be as such, the accused may be held guilty of the offence of criminal misconduct within the provisions of sections 13 (1)(d) read with section 13(2) of P.C. Act and section 120-B Cr.P.C., as in the case in hand. At the time of considering the matter for according prosecution sanction, the authority concerned is not required to conduct a trial, examine the witnesses and pass a detailed judgment holding the accused to be guilty or innocent and it is suffice for it to see as to whether the prima facie strong evidence is available against the accused, which if remains as such upon trial, will be sufficient to hold him guilty. It is also pertinent to mention that while section 19 (1) of P.C. Act provides the necessity of previous prosecution sanction, section 19 (3) provides that no finding, sentence or order passed by Special judge shall be reversed or altered by a court in appeal on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section 1, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.
68. Upon considering the entire evidence on the record of trial court as well as on the record summoned, on the application of appellant Smt. Neera Yadav vide order dated 21.11.2014 in this appeal from Government of India, the Department of Personal and Training, North Block, Delhi. I find that the lower court has very clearly and elaboratory analyzed the evidence on record in right perspective has also taken into consideration the gesture and demeanor of the witnesses, and has committed no mistake in coming to the findings that the prosecution has succeeded in bringing the charges home as against the appellants and that they in furtherance of criminal conspiracy between them have committed an offence of criminal misconduct and are punishable under section 13(1)(d) read with section 13(2) of P.C. Act and section 120-B IPC.
69. The arguments regarding prosecution sanction against appellants being defective or invalid having not been granted by competent authority upon due application of mind, have been categorically dealt with by the trial court in its judgment at page 320 to 326 of the paper book, and in detailed analysis of factual and legal position by trial court, no illegality or incorrectness, could be pointed out by or on behalf of any of the appellants.
70. In the case of Gokulchand Dwarkadas Morarka Vs. The King AIR 1948 Privy Council 82 relied on behalf of appellant Rajiv Kumar, the accused was convicted for committing an offence under clause 18 (2) of Cotton Cloth and Yarn (Control) Order, 1943, and finding that the prosecution sanction as required by clause 23 was not a valid sanction, setting aside conviction, accused was acquitted holding that "the finding of conviction and sentence is since erroneous and has occasioned, in a failure of justice, the provision of sections 537 of the Code of Criminal Procedure(old), may not provide a cure."
The facts of the above case are different and in present case there is nothing to show that the prosecution sanction was invalid on any ground and so the above case law has no applicability to the facts of the present case.
71. In the case of S.P. Bhatnagar Vs. State of Maharashtra (1979) 1 SCC 535 relied by appellant Rajiv Kumar, it was held that "In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
Dealing with in above case under section 5(1)(d) of Prevention of Corruption Act, 1947, the Apex Court also held that the abuse of position in order to come within the mischief of section 5(1)(d), must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. On the contrary in the facts of the present case as discussed earlier, it is proved from the evidence on record that the appellants by making misuse of their position, as Dy.CEO and CCEO, by their corrupt and illegal means and dishonest actions in furtherance of criminal conspiracy between them, not only obtained undue advantages in the form of valuable plot in favour of appellant Rajiv Kumar in most prestigious sector at New Delhi border but also allotted another adjacent plot illegally in the name of enhancement of its area against the rules and regulations and virtually made disappearance of a plot of considerable size 529.35 sq. mts., as is clear from map Ext.A-23, and caused huge loss to the department i.e. Noida towards value of the plot. It is also pertinent to mention that the circumstantial evidence on record is consistent only with the hypothesis of guilt of the appellants and does not leave any reasonable ground for coming to a conclusion consistent with their innocence of appellants and also show that in all probability, the acts have been done by the accused-appellants and none other than the accused-appellants. In view of above the above case law also does not provide any support to appellant.
72. In the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622 relied by appellant Rajiv Kumar, the prosecution sanction was held to have been granted without application of mind to the facts of case as also to the material and evidence collected during investigation by the authority. In above case, it was found that the prosecution sanction was granted by State Government in furtherance of a mandamus issued by the High court on judicial side, in a writ petition under Article 226 taking away the discretion vested in the authority and so it was found to be invalid.
The facts of this case are entirely different and distinguishable and so this case law also does not help the appellants.
73. In the case of R. Sai Bharathi Vs. J. Jayalalitha and others AIR 2004 SC 692 relied by appellant Rajiv Kumar, as per prosecution case land had been purchased by a firm of Chief Minister, and the Apex Court held that since the sale was made to a private party by adopting process of open tender and was sold to the highest bidder, it cannot be said that the property had been under sold and caused any loss to Tamil Nadu Small Industries Corporation Ltd. It was also held that decision to accept the offer of Chief Minister's firm was that of the Board and not of accused, who was Chairman-cum-Managing Director of Government Company and so in absence of any evidence to show that Chairman-cum-Managing Director acted in favour of firm of Chief Minister, the Chairman-cum-Managing Director, may not be held guilty.
On the other hand, in the case in hand, the process of allotment and for conversion of plots in the name of appellant as well as extension of area of plots without there being any provision, as discussed earlier were done by appellants in conspiracy with each other and they obtained valuable things and pecuniary advantage for Rajiv Kumar and caused undue loss to Noida. The above case law on different and distinguishable facts is also not applicable to the facts of this case. The argument that they had deposited entire amount as the prevalent rates and thus did not cause any undue advantage to themselves and any loss to Noida is also incorrect and has no force as has been discussed earlier.
74. In the case of V. Venkata Subbarao Vs. State represented by Inspector of Police, A.P. (2007) 3 SCC (Cri) 175 relied by appellant Smt. Neera Yadav, in a matter of trap case having been conducted within 40 minutes of making of demand of Rs.5000/- as illegal gratifications and reducing the same to Rs.2000/-, the prosecution evidence was found unreliable and contradictory and it was found proved from the evidence on record that the relevant documents showing involvement of Mandal Revenue Officer were not produced before the sanctioning authority, the appeal was allowed and conviction was set aside.
75. In the case of State of Karnataka Vs. Ameerjan (2008) 1 SCC (Cri) 130 relied by appellant Smt. Neera Yadav, it has been held by the Apex Court that the sanctioning authority is the best person to judge as to whether public servant concerned should get the protection under the Act by refusing to accord sanction for his prosecution or not and indisputably application of mind on the part of sanctioning authority is imperative.
76. In the case of Dinesh Kumar Vs. Chairman Airport Authority India and another (2012) SCC (Cri) 509 relied by appellant Smt. Neera Yadav also similar view has been expressed, that grant of prosecution sanction is not intended to be, nor is an empty formality but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecution and is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty.
77. In the case of CBI Vs. Ashok Kumar Aggarwal AIR 2014 SC 827 relied by appellant Smt. Neera Yadav, it was held that for grant of prosecution case, the sanctioning authority has to do complete and conscious scrutiny of whole records placed before it and the sanction order should also show that the authority has considered all the relevant facts and applied its mind and prosecution is under obligation to place entire record before the sanctioning authority and satisfy the court that authority has applied its mind.
78. In the case of C.K. Jaffer Sharief Vs. State (through CBI)(2013) 2 SCC (Cri) 482 relied by appellant Smt. Neera Yadav, wherein the then Union Railway Minister C.K. Jaffer Sharief, who was also ex-officio head of two public sector undertakings RITES and IRCON, was accompanied by four persons during his trip to London in connection with his medical treatment and observing that the Minister had to decide the number and identify of the officials who should accompany him to London, it was held that merely for violation of some rules or norms it will not be correct to say that above act was done with a dishonest intention to obtain an undue pecuniary advantage and that there can be no crime without a guilty mind as well as in absence of any physical or mental element to show dishonest intent i.e. in absence of 'actus reus' and 'mens rea', the proceedings are liable to be quashed.
79. In the case of Subramanian Swamy Vs. A. Raja (2012) 3 SCC (Crl) 1085 relied by appellant Smt. Neera Yadav, in 2G spectrum scam case, the Apex Court refused to implement Finance Minister as conspirator with Telecom Minister holding that "Criminal conspiracy cannot be inferred on the mere fact that there were official discussions between the officers of the MoF and that of DoT and between two Ministers, which are all recorded. Suspicion, howsoever, strong, cannot take place of legal proof and the meeting between Shri P. Chidambaram and Shri A. Raja would not by itself be sufficient to infer the existence of a criminal conspiracy so as to indict Shri P. Chidambaram. The petitioners submit that had the Minister of Finance and the Prime Minster intervened, this situation could have been avoided, might be or might not be. A wrong judgment or an inaccurate or incorrect approach or poor management by itself, even after due deliberations between the Ministers or even with Prime Minster, by itself cannot be said to be a product of criminal conspiracy."
80. In the case of C. Chenga Reddy and others Vs. State of A.P. (1996) SCC (Crl) 1205 relied by appellant Smt. Neera Yadav relating to commission of fraud, irregularities and illegalities in execution of jungle clearance work contract by government engineers and contractors in conspiracy by fabricating documents to show that the work had been executed and payment were made to contractors, while in fact, no work had been performed, in the case of prosecution based on circumstantial evidence, though the fact that accused acted in volition of financial code and government circulars/ instructions was established, but in absence of dishonest intentions, it was held that the strong suspicion raised against the appellants since was not proved by prosecution by sufficient clinching evidence, the appellants engineers acquitted.
The facts of above cases relied by the appellants are clearly distinguishable from the facts of this case, where direct involvement of appellants with dishonest intentions is fully established and so it is not applicable to the facts of the case and do not support the appellants.
81. In (2013) 8 SCC 119 State of Maharashtra Through C.B.I. Vs. Mahesh G. Jain, the principles with regard to prosecution sanction have been culled out in para 13 of the judgment as follows:-
"(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
(d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
(g) The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity."
82. In the case of State of Maharashtra and others Vs. Ishwar Piraji Kalpatri and others (1996) 1 SCC 542, in a matter of disproportionate assets when validity of prosecution sanction was questioned for not giving opportunity of being heard to the accused under principles of natural justice and High Court quashed the proceedings under section 482 Cr.P.C. holding that "in the absence of sanctioning authority recording and holding that the accused could not satisfactorily account for disproportionate assets no sanction could even have been granted "
83. In appeal, the Apex Court setting aside the above order held that the order of prosecution sanction is an administrative act where question of giving opportunity of being heard at that stage does not arise and since in the preamble of the said order, it is categorically stated that "Another reason as given by High Court for quashing the sanction was that the order of sanction was signed by the Additional Chief Secretary to the Government of Maharashtra but there is nothing in this order to indicate as to whether the signatory or any other officer on his part was the one who had personally scrutinized the file and arrived at a subjective satisfaction that is a legal pre-requisite. "We do not find any warrant, in law, which requires a statement being made, while according sanction, that the officer signing the order had personally scrutinized the file and had arrived at the required satisfaction. In the preamble of the said order, it is categorically stated "and whereas the Government of Maharashtra having fully examined the material before it and considering all the facts and circumstances disclosed herein, is satisfied that there is a prima facie case made out against the accused person and that it is necessary in the interest of justice that accused person should be prosecuted in the Court of competent jurisdiction for the said offences......." which prima facie shows that there has been application of mind and that the material on record has been examined by the concerned officers before according sanction and the law does not warrant or require a statement being made that while according sanction, the officer signing the order had personally scrutinized the file and had arrived at the required satisfaction.
84. In the case of State of Madhya Pradesh Vs. Harishankar Bhagwan Pd. Tripathi (2010) 8 SCC 655, in a trap case regarding receipt of illegal gratifications by the accused persons for issuance of license, the special Judge as also the High court while holding that the trap had been proved, dismissed the case of prosecution on the ground that proper sanction had not been obtained to prosecute the accused-persons. The Apex Court setting aside the acquittal held "that while according sanction, officer concerned is not required to indicate that he had personally scrutinized the file and arrived at a satisfaction for according sanction and the order granting sanction did not suffer from any infirmity to acquit the accused-persons. Considering that Ghanshyam Das, one of the two accused died but since the defence failed to explain as to how the tainted currency came to be in possession of sole surviving accused/respondent, except for the statement that same had been handed over to him by co-accused Ghanshyam Das deceased, it held that unless there was understanding between the sole surviving respondent and Ghanshyam Das deceased, there could be no reason for Ghanshyam Das to have given the sole respondent a part of money, which he had received by way of illegal gratification".
85. In view of above, despite there being no direct evidence, the Apex Court held that it is a matter of common experience that direct evidence to prove conspiracy between two persons is rarely available and the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused and finding pre-meditation of mind between the surviving and deceased accused persons, consequently set aside the acquittal order.
86. In the case of State of Orissa Vs. Mrutunjaya Panda 1998 SCCrR 741, where respondent was convicted for the offence under section 161 IPC (as was then applicable) and section 5(2), (1) (d) of Prevention of Corruption Act, 1947, the High court in appeal though concurred with the findings of trial court, set aside the conviction for want of valid sanction to prosecute, and the Apex Court making reference to provisions of section 465 Cr.P.C. held that "any error or irregularity in any sanction for the prosecution shall not be a ground for reversing an order of conviction by the appellate court unless in the opinion of that court a failure of justice has in fact been occasioned thereby."
87. In the case of State of Bihar and others Vs. Rajmangal Ram (2014) 11 SCC 388, in a matter where proceedings under IPC and Prevention of Corruption Act, 1988 were quashed by High Court. The Apex Court making reference of provisions of section 465 Cr.P.C. and section 19 of P.C. Act held that "In a situation where under both the enactments any error, omission or irregularity in the sanction, which would also include the competence of the authority to grant sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred, it is difficult to see how at the intermediary stage a criminal prosecution can be nullified or interdicted on account of any such error, omission or irregularity in the sanction order without arriving at the satisfaction that a failure of justice has also been occasioned. This is what was decided by this Court in State Vs. T. Venkatesh Murthy wherein it has been inter alia observed that: (SCCp.767, para 14) "14. ......Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice."
88. Similar view was also taken in the case of State of Madhya Pradesh Vs. Virender Kumar Tripathi (2009) 15 SCC 533, by the three Judges Bench of Apex Court.
89. In view of the discussions made above, I find that due to issuance of order of prosecution by Under Secretary D.P. Khatri, it may not be correct to say that the sanctioned was not accorded by the competent authority or was granted without due application of mind. There is no illegality or defect in the grant of prosecution sanction against the appellants and the alleged defect if any may not be used by appellants as shield or for cure from conviction, and there is nothing on record to show that due to alleged error, omission or irregularity in grant of prosecution sanction any failure of justice is likely or has in fact been occasioned.
90. Apart from case laws relied by parties counsel discussed above, few more legal pronouncements may also be discussed.
91. The three Judges Bench of Apex Court in the case of Krishna Mochi Vs. State of Bihar (2002) 6 SCC 81 has held that "when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more than. Now the maxim "let 100 guilty persons be acquitted but not a single innocent be convicted", which is in practice, changing the world over and courts have been compelled to accept that, "society suffers by wrong convictions and it equally suffers by wrong acquittals". It further held that the duties of courts is not only to see that no innocent man should be punished, but also to ensure that no person committing an offence should go scot-free.
Some discrepancies are inevitable - But a discrepancy existing in a prosecution case, held should not weigh with the Court so long it does not materially affect the case, upon appreciation of evidence."
92. In (2010) 8 SCC 593 G. Parshwanath Vs. State of Karnataka, the Apex Court has held that "circumstantial evidence can sometimes be more reliable than eye witness account. Every suspicion is not doubt. Only reasonable doubts give benefit to the accused and not doubt of vacillating judge.
In a case based on circumstantial evidence if proved circumstances complete the chain - it cannot be said that in absence of motive proved, circumstances are of no consequence."
93. In the case of Lal Singh Vs. State of Gujarat 2001 (3) SCC 221, the Apex Court held that "concept of benefit of doubt is vague". The doubt must be reasonable one which occurs to prudent man and not to a weak or unduly vacillating or confused mind. Inspite of presumption of innocence, it has to be judged on the basis of a reasonable prudent mind. Smelling doubts for the sake of giving benefit of doubt is not the law of land."
94. The above facts and motion of proposals for frequent re-organization and conversion of plots and enhancement of their areas as well as conversions of plot no.26 in corner plot with provision of extra vide road and their approval without any query or objection by appellants and in particular appellant Smt. Neera Yadav herself reflects that these proceedings were not done in good faith and in ordinary course of business of Noida rather were done with a dishonest mind with dishonest intentions in furtherance of criminal conspiracy between appellants to obtain valuable property of Noida and pecuniary gains from and further to cause advantage to appellant Rajiv Kumar by conversion and further allotment of another plot of 105 sq. mts. without seeking payment of conversion charges thereof and by allotment of a plot of 112.50 sq. mts. to appellant Smt. Neera Yadav and misutilized 225 sq. mts. area for the road in order to have two side openings of the plot and by doing so making disappearance of an unnumbered plot of 529.35 sq. mts. by reducing its area to 190.00 sq. mts. (unusable) and causing undue loss of its value to the Noida.
95. The above circumstantial evidence on record fully satisfy that there was pre-meeting of two minds of appellants for making criminal conspiracy as above by making misuse of their officials positions.
96. The arguments of the learned counsel for the appellant that this is not a case of illegalities rather is a case of minor irregularities only and since similar irregularities were committed in cases of other allotments made by her in favour of Sidharth Prasad, Kaushalya Devi, Chandana, Krishna Venkat Narayanan, A.K. Goswamy, Vikram Jain, Subhash etc. who have not been prosecuted, she may also not be held guilty and is entitled for acquittal, also has no force and does not help the appellant rather goes against her and supports the contention of prosecution that the appellant was habitual of arbitrary working and making misuse of her office as public servant CCEO Noida and being habitual of working wrongly, illegally and arbitrarily, had obtained undue benefits/gains by obliging the influential persons and political leaders with ulterior motive to obtain their favour or otherwise.
97. Similarly, the argument advanced on behalf of appellant that they are not liable to be convicted as the town planner, chief architect or senior development manager, Rekha Devyani, S.P. Gautam, Tribhuwan Singh and G.C. Tiwari etc. who were equally involved, have not been prosecuted, has no force. Istly, because all the above persons were subordinate to the appellants and were working under their directions and instructions, having every knowledge that their character roles and the pension papers were to be written and cleared/passed by appellants and since they were under pressure due to fiduciary relationship with appellants and appellants being in dominating position above persons were bound to follow even their oral directions and IIndly, the notes and proposals presented by them in the matter of re-organization or conversion of plots or in the matters of allotment of another plots in the name of enhancement of the areas in plot no.26, 27 by cleverly shifting the adjoining plots towards west, were done by them under instructions and directions of appellants only in order to satisfy the wishes of appellants and they are not alleged to be beneficiary under above transactions. In any case for non-prosecution of one or the other, the appellants, who are proved to be the real culprits, may not escape from their liability as well as from clutches of law and may not be acquitted even if the alleged other wrong doers were left to be prosecuted for any reason whatsoever.
98. The argument advanced on behalf of appellants that they have been exonerated in departmental inquiries initiated against them also, has no force because the result in departmental inquiries has no effect on the Court proceedings in criminal matters or otherwise and possibility of their exoneration having been managed by appellants through influence of political leaders [who were obliged by benefiting them through allotment of plots in their favour (as mentioned in F.I.R.) by flouting rules and regulations], may not be ruled out.
99. In above respect, the court below has rightly pointed out that the departmental inquiry report was submitted during the tenure of the then Chief Minister Kumari Mayawati and in view of the reference made to specific averments in FIR as well as in the report of justice Murtaza Hussain dated 8.12.1997 submitted by him in the Noida, Inquiry Commission constituted by U.P. State vide notification No.86/N/96 dated 25.1.1997, that in exercise of powers of her office as public servant appellant Smt. Neera Yadav as CCEO of Noida appointed two brothers of Kumari Mayawati (Chief Minister) in Noida, as carpenters and LDC and also made allotment of two plots in a very developed and prestigious sector 44 in the names of brothers of Ex. Chief Minister, causing undue advantage to them and obliging Chief Minister by fulfilling her wishes of obtaining plots for her brothers, and causing huge undue loss to Noida, the exonerated of appellants in departmental inquiry is of no consequence.
100. During the appeal in arguments, learned counsel for the appellant Smt. Neera Yadav did not put much emphasis on this point. Otherwise also in view of the settled principles of law for exoneration of a person in departmental inquiries to which different yardsticks and considerations are applicable, the person so exonerated may not be held to be innocent and may not be acquitted and vice versa even if a person is found guilty in departmental proceedings, it is not incumbent on the Courts to hold him guilty and convict in criminal trial in view of his having been proved guilty in departmental inquiry.
101. It is pertinent to mention that reference of plot no.26 allotted to appellant Smt. Neera Yadav which is not subject matter of offence under impugned judgment and order in the special trial no.19/2002 has come up at certain places, in view of the fact that the above plot is adjacent to plot no.27, of appellant Rajiv Kumar, (which is subject matter of this trial) and the discussions in respect of plot no.26 have come up only in order to clarify the events of ever changing areas and positions of plot nos.25, 26 and 27 (as have been shown in maps Annexures No.A-18 to A-23 and tabulation chart) and has nothing to do with taking of any decision in respect of correctness of her conviction order for the charges framed against her in respect of allotment etc. of plot no.27 to appellant Rajiv Kumar. The observations, if any made in respect of making of provision of 7.5 mts. wide road in East of plot no.26 or in respect of plot no.26 of Smt. Neera Yadav as well as enhancement of its area and shifting of various plots towards further West other plots have not been made basis of, and the confirmation of conviction of appellant Smt. Neera Yadav in this appeal independent of any such observations.
102. Upon hearing counsel for the parties and perusal of record, I find that there is no material contradiction in prosecution evidence and the prosecution has proved the charges against the appellants to the hilt by reliable and cogent evidence produced by it. The circumstantial evidence supported with documentary evidence is strong enough to prove the charges and there is no doubt in the commission of offence by appellant or to hold that the offence could have been committed by someone else, other than the appellants. As discussed above, the benefit of doubt does not require to mean a thorough search for finding a way as to how the accused may be acquitted.
103. I have gone through the record summoned from the department of Personal and Training, North Block, Delhi relating to prosecution sanction and after careful perusal thereof, I find that merely for the reason that the order of prosecution sanction has been issued under the signatures of Under Secretary, Shri D.P. Khatri, the grant of prosecution sanction may not be held bad or invalid. The material on record shows that the prosecution sanction under Section 19(1) of PC Act has been granted by the competent authority, the Prime Minister of India after due consideration of the entire material brought before him and there is no error, omission or irregularity in grant of prosecution sanction.
104. In view of the discussions made above, I find that there is no error, omission or irregularity in the grant of prosecution sanction as required under Section 19(1) of PC Act by the competent authority and even in case there has been some error or irregularity in it (which is not there), in view of the facts of the case, I find that due to the alleged error or irregularity no failure of justice has occasioned and there is no sufficient ground for reversing or altering the conviction or sentence in view of the provisions of Section 19(3) of P.C. Act.
105. Learned counsel for the appellant Smt. Neera Yadav has also argued that the charges framed are defective and particularly while the two charges have been framed against each of them one under section 120-B IPC and the other under section 13(1)(d) read with section (13)(2) of P.C. Act, there is difference of charges framed against the two accused; that while appellant Smt. Neera Yadav has been charged with conversion of plot of appellant Rajiv Kumar from Sector 51 to Sector 14-A, she has also been charged for causing undue benefit to appellant Rajiv Kumar by enhancement of area of her plot by 105 sq. mts. to a total of 405 sq. mts. but co-accused appellant Rajiv Kumar has not been charged for such enhancement of 105 sq. mts.
106. Upon perusal of charges framed against two accused appellants, I find that the above argument has been made only to be rejected. It is clear from the charges framed against the two accused that under Iind charge both of them have been charged of wrongful conversion of plot no.B-86 of appellant Rajiv Kumar in sector 51 to plot no.A-36 in sector 44 and again to plot no.27 in sector 14-A, by changing the plot reserved for guest house to a residential plot and of making enhancement of its area in furtherance of criminal conspiracy between them, causing undue advantage to appellant Rajiv Kumar and so they have committed an offence under section 13(1)(d) punishable under section 13 (2) of P.C. Act. There is no difference between the charges framed against the two accused appellants. However, it may be pointed out that in IInd charge framed against appellant Smt. Neera Yadav, the area of enhancement i.e. 105 sq. mts. has been specifically mentioned while in the IInd charge framed against appellant Rajiv Kumar area of enhancement of plot has not been specifically mentioned but the contention of enhancement of area is clearly there.
107. In view of above fact, the argument of learned counsel for appellants that the two accused have not been charged similarly and so there can be no conspiracy between them or they are entitle for acquittal, has got no force.
108. It is also pertinent to mention that section 464 of Code of Criminal Procedure provides that "no finding sentence or order of a competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges unless in opinion of the Court of appeal a failure of justice has in fact been occasioned thereby." and in view of above legal position also, I do not find any sufficient ground to interfere with the impugned order.
109. In view of the discussions made above, I have come to the conclusion that it is proved from the evidence on record that the appellants with dishonest intentions entered into criminal conspiracy with each other and without any bonafides, committed illegal acts as well as acts by illegal means in the matter of allotment of plot No.27 to appellant Rajiv Kumar in most developed and prestigious Sector 14-A on Delhi Border by way of conversion and in allotment of another adjoining plot of 105 sq. mts. to him, in the name of extension of its width or enhancement of its area and the wrongful, illegal and arbitrary acts were done by them in furtherance of criminal conspiracy, abusing their positions as public servant being Dy.CEO and CCEO of Noida, they committed criminal misconduct by which appellant Rajiv Kumar obtained for himself and appellant Smt. Neera Yadav obtained for Rajiv Kumar valuable things/property as well as pecuniary advantage, without any public interest and caused loss to Noida. The findings of trial court with respect to conviction of appellants are perfect on facts and law. The appellants have failed to show any illegality or incorrectness in the impugned judgment and order of conviction passed by Court below and there is no sufficient ground for interfering with or setting it aside the conviction of appellants as well as the judgment and order of learned Special Judge. The appeals have got no force and are liable to be dismissed.
110. The impugned judgment and order of conviction and sentence is confirmed and the appeals are dismissed, accordingly. All interim orders granting bail to appellants or staying operation of impugned order of conviction or otherwise, stand discharged.
111. The bail bonds furnished by appellants in court below, stand cancelled and sureties stand discharged. The appellants who are not present, shall forthwith surrender before the trial court, to undergo remaining sentence.
112. Let the lower court records be transmitted to court below immediately along with a copy of judgment, with a direction that it shall take immediate steps for arrest of appellants for serving the remaining sentence.
113. Let the record relating to prosecution sanction summoned from Department of Personal and Training, North Block Delhi vide order dated 21.11.2014 on application of appellant Smt. Neera Yadav No.339019 of 2014 be sent back to department concerned.
Order date:-24.2.2016 Tamang