Cc No.114/11 (Rc No.01/2007) -Cbi vs . Ajay Kumar Shrotriya & Anr. on 16 May, 2013

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Delhi District Court

Cc No.114/11 (Rc No.01/2007) -Cbi vs . Ajay Kumar Shrotriya & Anr. on 16 May, 2013

                                                  1


    IN THE COURT OF ANOOP KUMAR MENDIRATTA,
  SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
             TIS HAZARI COURTS, DELHI.

CC No. : 114/2011
RC No. : 01/2007
PS    : CBI/EOU-VI/New Delhi
U/s    : 120B r/w 217, 420, 465, 468 IPC and 13(2) r/w 13(1)(d)
         PC Act 1988 and substantive offences thereof.
Unique ID No. 02401R0046832009


C.B.I.

Versus

1.        Ajay Kumar Shrotriya
          S/o Shri G.S. Shrotriya
          R/o B-578, MIG Flats, Loni Road, Delhi.

2.        Krishna Pahwa
          W/o late Shri Sain Das Pahwa
          R/o 24/13-A, Tilak Nagar,
          New Delhi.

          Date of FIR                             : 23.01.2007
          Date of Institution                     : 31.01.2009
          Arguments concluded on : 15.05.2013
          Date of Judgement                       : 16.05.2013


JUDGEMENT

1. As per case of prosecution, a preliminary enquiry No. PE SIJ 2006 E 0003 was registered in CBI EOU-VI, New Delhi on 3-5-2006 against Sh. Brij Pal Singh, Executive Engineer, West Zone, MCD and CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

other unknown public servants and private persons in compliance to the order dated 20-04-2006 passed by the Hon'ble High Court of Delhi in WP (C) No. 4582/2003 (Kalyan Sanstha Vs. Union of India & Others) to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. The said enquiry was marked to PW17 SI Arvind Kumar and on the basis of his findings, a complaint dated 23.01.2007 (Ex.PW17/A) was forwarded to Superintendent of Police, CBI EOU-VI for registration of FIR u/s 120B IPC r/w 13(2) r/w 13(1)

(d) of PC Act, 1988 and Section 465 IPC against Ajay Kumar Shrotriya, JE West Zone MCD and other private persons for investigation. An FIR Ex.PW18/A bearing RC 1/2007 was accordingly registered and investigated by PW18 Inspector N. Mahato. Fifteen separate charge-sheets pertaining to 15 different properties in West Zone, MCD have been filed by prosecution.

Accused Ajay Kumar Shrotriya, JE along with the owners/builders of the respective 15 properties have been arrayed as accused. It is interesting to notice that the premier investigating agency has only picked up the cases involving Ajay Kumar Shrotriya, JE who was on deputation from DDA to MCD from 06.05.02 to 30.09.03. No other officer from MCD i.e. JE/AE/EE/SE/DC has been chargesheeted in any case defying the spirit of the order passed by the Hon'ble High Court pursuant to which investigation was commenced. The nexus is deeper but only illusory investigation has been conducted giving a clean chit to many other officials involved.

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

2. In brief the contents of complaint dated 23.01.2007 made by SI Arvind Kumar on the basis of preliminary enquiry conducted by him may be referred which forms the foundation of registration of FIR and subsequent investigation.

As per the complaint Ex.PW17/A by SI Arvind Kumar enquiries revealed that 15 properties were booked for unauthorized construction by Ajay Kumar Shrotriya, JE West Zone, MCD, New Delhi which are detailed as under:

1) D-16, Fateh Nagar, New Delhi

2) D-15, Fateh Nagar, New Delhi

3) 24/13A, Tilak Nagar, New Delhi

4) 15/11A, Tilak Nagar, New Delhi

5) 16/23, Tilak Nagar, New Delhi

6) 22/23, Tilak Nagar, New Delhi

7) WZ-30, Krishna Park, New Delhi

8) WZ-23, Krishna Puri, New Delhi

9) WZ-150B, Krishna Park, New Delhi

10)4 Industrial Area, Tilak Nagar, New Delhi

11) C-16, Vikas Puri, New Delhi

12)WZ-406R, Janak Park, New Delhi

13)B-3/84, Paschim Vihar, New Delhi

14)A-5/11, Paschim Vihar, New Dehi

15)Shop No.19, New Market, Ramesh Nagar, New Delhi.

It is further alleged that Ajay Kumar Shrotriya made false notings that partial demolition of the properties had been carried out in CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

pursuance of demolition orders passed in respective files. The fact that notings were false is stated to be corroborated on comparison with the entries made in demolition register maintained in MCD, demolition register of concerned police station, log books of the concerned vehicles of the MCD, the relevant letter of requisition for police force. It is further the case of prosecution that the enquiry also revealed that unauthorized construction files relating to above 15 properties were not taken out from the office of Officer In-charge (Buildings) (OIB) and entries were forged by Ajay Kumar Shrotriya having knowledge that no demolition had taken place.

As such, it is alleged that accused Ajay Kumar Shrotriya abused his official position to cause undue pecuniary advantage for himself or other private persons. Further, on the basis of Preliminary Inquiry, recommendation was made by SI Arvind Kumar for registration of regular case (FIR) against Ajay Kumar Shrotriya and other persons.

3. In the aforesaid background, on registration of RC (FIR) by CBI, the case was further investigated by PW18 Insp. N. Mahato and chargesheet was filed u/s 173 Cr.P.C.

In brief, the case of prosecution is that Plot No. 24/13A, Tilak Nagar was originally a 476 sq. yds. plot owned by Shri Kashi Ram s/o Chunni Das vide lease deed dated 21.11.66 (Note : The date has been wrongly reflected in the chargesheet as 01.11.53). Further, Smt. Krishna Pahwa (w/o Sain Dass s/o Kashi Ram) became owner of an CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

area of 171 sq. yards in the said plot and the same was in her possession in the year 2000.

The property in possession of Smt. Krishna Pahwa was booked for unauthorized construction vide FIR No.B/UC/WZ/02/322 dated 05.07.02 by Ajay Kumar Shrotriya, JE for unauthorized construction in the shape of Hall on ground floor, hall at first floor and hall at second floor. A notice dated 05.07.02 U/s 344 (1) of DMC Act, 1957 was further issued to the owner/builder of the property and the same was served by way of affixation. Thereafter, a further notice dated 12.07.02 U/s 343(1) of DMC Act, 1957 under signatures of Shri J.S. Yadav, AE was issued to the owner/builder of the property for demolition of the property within 6 days as the construction had been carried in violation of the building bye-laws. The aforesaid notice was also served upon owner/builder by way of affixation by Ajay Kumar Shrotriya. Since the owner/builder of the property failed to respond to aforesaid notices, a demolition order dated 22.07.02 was proposed by Ajay Kumar Shrotriya and the same was approved by Shri J.S. Yadav, AE on the same day who further endorsed "take action as per law". (It may be noticed at this stage itself that the name of AE has been wrongly mentioned in the chargesheet as Vinod Kumar instead of J.S. Yadav).

It is further the case of prosecution that accused Ajay Kumar Shrotriya, JE thereafter made an entry in the official record (i.e. endorsement on demolition order dated 22.07.02) on 26.08.02 to the effect, "demolished/punctured Hall at second floor CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

and removed one shutter at ground floor". A corresponding entry to this effect was also made in the demolition register mentioning the file number relating to the property in question as 322/02. It is alleged that the aforesaid entries were wrongly made by Ajay Kumar Shrotriya in conspiracy without actually carrying out any such demolition. Further, the demolition action is not alleged to be supported by the action taken report, demolition programme, carrying of file to the spot, log book details of vehicle and non-levy of demolition charges. It is also alleged that even the demolition register maintained at the police station Tilak Nagar reflected that the aforesaid date was fixed for a demolition programme for a special drive for STF which was sent from Headquarters but none from MCD had reported.

It is further the case of prosecution that during course of investigation, the property was further got inspected by team of officers from CPWD and it was observed in the report Ex.PW2/A that no approved plan in respect of the property are available and as such the property is unapproved. Further, on the ground floor shops had been constructed for commercial use and there was unauthorized construction in front and back set backs as shown in the plan. It was also observed that the actual FAR is 260.32 against the permissible FAR of 200% and the number of dwelling units is four which is more than the permissible dwelling units.

As such, it was alleged that there was intentional disobedience of provisions of DMC Act in conspiracy with co-accused Krishna CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

Pahwa and false documents by way of bogus entries were prepared by Ajay Kumar Shrotriya.

4. Charge was framed against accused Ajay Kumar Shrotriya and Krishna Pahwa u/s 120(B) r/w Sec 417/465/468/217 IPC r/w Sec 13(2) alongwith Sec 13(1)(d) of the Prevention of Corruption Act, 1988. Accused Ajay Kumar Shartoriya was further charged for substantive offences u/s 417/465/468/217 IPC and u/s Sec 13(2) r/w Sec 13(1)(d) of the Prevention of Corruption Act, 1988.

5. In support of its case, prosecution examined eighteen witnesses, namely:

     i.     Shri Moti Lal
     ii.    Shri S.S. Rana
     iii. Shri Lal Chand
     iv. Ct. Jacob Mathew
     v.     Shri Babu Lal
     vi. Shri Moti Ram
     vii. Shri Prem Nath
     viii. Shri Baldev Raj
     ix. Shri Subhash Chand Thapar
     x.     Shri Nihal Singh
     xi. Shri R.S. Rana
     xii. Shri Girdhari Lal
     xiii. Shri Ashok Kumar
     xiv. Shri Himanshu Pandey
     xv. Shri Brij Pal Singh

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

xvi. Shri J.S. Yadav xvii. SI Arvind Kumar xviii.Insp. N. Mahato

(a) PW17 SI Arvind Kumar conducted the preliminary enquiry prior to registration of FIR. He deposed that he remained posted in EOU-VI from 2005 to 2009 and during his tenure, a preliminary enquiry was registered in CBI on 03.05.2006 in compliance to the orders dated 20.05.2006 passed by the Hon'ble High Court of Delhi in Writ Petition C(C) No. 4582/2003 to probe the nexus of MCD officers in engineering department, builders and political bosses. Further, the said PE was entrusted to him and after enquiring the matter, 15 properties were selected in which it was found that demolition was carried out in papers. After verifying the facts, it was found that reports in MCD records were different than the actual facts. Further, during the enquiry, owners of respective properties were examined by him along with the record of MCD and respective police stations and it was found that Ajay Kumar Shrotriya JE West Zone MCD forged the documents having knowledge that no demolition had taken place and dishonestly made bogus entries in the relevant records. Further, accused Ajay Kumar Shrotriya being the public servant also abused his official position to cause undue pecuniary advantage for himself or other private person. Accordingly, recommendation was made for registering a regular case u/s 120B r/w 13(2) r/w 13(1)(d) of PC Act and substantive offence u/s 465 IPC and in this respect, a letter dated 23.01.2007 (Ex.PW17/A) comprising of four pages was written by him to the then SP Shri A.K. Ohri whose signatures are at point B on CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

all the pages.

(b) PW13 Shri Ashok Kumar, the then Vice Chairman, DDA i.e. the competent authority accorded sanction for prosecution of accused Ajay Kumar Shrotriya, JE vide sanction order Ex.PW13/A.

(c) PW2 S.S. Rana and PW14 Shri Himanshu Pandey are the witnesses to the inspection and preparation of report as to existing construction in the property in question in 2007/08 after the FIR was registered by CBI. The aforesaid witnesses proved the report Ex.PW2/A. PW14 Shri Himanshu Pandey, then Executive Engineer proved the report (Ex.PW2/A) in respect of property no. 24/13A, Tilak Nagar, New Delhi and also identified his signatures alongwith those of Shri S.S. Rana, Deputy Architect, Shri D.K. Garg, Shri U.K. Dey, AE(P) and draftsman Shri Daya Chand. He further stated that the propert was inspected at the asking of CBI and the plan on page no. 2 to 5 of report indicates the construction existing at site alongwith the permissible area of construction as per building bye-laws in Delhi.

PW2 Shri S.S. Rana also deposed on similar lines.

(d) PW16 Shri J.S. Yadav, Executive Engineer (Building Department), South Zone, MCD deposed that in July 2002, he was posted as Assistant Engineer in West Zone, Rajouri Garden and his duty was to supervise unauthorized construction, its demolition and sanctioning of building plans. He further deposed that the unauthorized construction is booked by concerned JE and the show-

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

cause notices are issued by the concerned AE and after completion of the time limit mentioned in the show-cause notice, if the party does not respond to the same, then demolition order is approved by the concerned AE. Thereafter, the demolition order is proposed by the concerned JE and put up before the AE.

He further deposed that after issuance of demolition order, the file goes back to concerned OI(B). Further, the Executive Engineer chalks out the demolition programme for the entire month after the file is put up by the OI(B) and, thereafter, the file is handed over to concerned JE for necessary action. He further stated that after the action is taken, the JE puts back the file to AE concerned for necessary orders and, thereafter, the file is sent back to OI(B).

He further identified signatures of Ajay Kumar Shrotriya at point A on FIR no B/UC/WZ/02/322 dated 05.07.2002 (Ex.PW1/A) whereby unauthorized construction in property no. 24/13A, Tilak Nagar was booked and his signatures and endorsement at point B to the effect "take action as per DMC Act".

He further identified his signatures at point A on notice u/s 344(1) of DMC Act dated 05.07.2002 (Ex.PW1/C). He further identified his approval with signatures available at point D"as proposed" appearing on the back of show-cause notice dated 05.07.2002 against noting "I went to site to serve the notice to O/B but he is not available at site, if approved the same may be pasted at site".

He further deposed that the order to issue notice u/s 343 of DMC Act (Ex.PW1/E) was issued on 12.07.2002 under his signatures at point B with endorsement "issue notice". Further, notice u/s 343 of DMC Act dated 12.07.2002 (Ex.PW1/D) was issued under his CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

signatures at point A. He further stated that said notice also bears his signatures at point E against endorsement by Ajay Kumar Shrotriya regarding seeking permission to paste the same.

He also stated that demolition order dated 22.07.2002 (Ex.PW1/G) bears his signatures alongwith endorsement at point C "take action as per law" and, thereafter, the file was forwarded to OI(B). He further deposed that as per endorsement dated 26.08.2002, part demolition was carried by concerned JE and the file was marked to him. However, the same was not put up before him and it is possible that he may not be available in the office and the file might have gone to OI(B) directly.

He further deposed that as per movement register, there is no handing over of file from OI(B) to JE on 26.08.2002 but he might have handed over the file without making the entry. He also stated that as per movement register (Ex.PW2/F), on 26.08.2002 two files have been reflected to be handed over to JE concerned which pertained to Janakpuri.

(e) PW5 Shri Babu Lal and PW10 Shri Nihal Singh (baildars) are the witnesses to service of notices issued under sections 344/343 DMC Act, 1957.

PW5 Shri Babu Lal deposed that he was posted in MCD West Zone as baildar in 1999-2000 and remained there for about three years. Further, as per his duties, he used to accompany the JE concerned to the properties wherein unauthorized construction may have been carried for purpose of service of notices under the DMC Act. Further, the notices were not handed over to the owner/builder, if CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

present at spot but as a normal routine the same were pasted as per the directions of the JE concerned.

He further identified his signatures at point B on the back of notices u/s 344 of DMC Act (Ex.PW-1/C) which he had affixed on the building. He also stated that the notice pertains to property no. 24/13 A, Tilak Nagar and he had accompanied the JE on the date of service of notice and the same was affixed as per instructions of JE concerned.

He further identified his signatures at point B on the back of notice u/s 343 of DMC Act (Ex.PW-1/D) which he had affixed on property no. 24/13 A, Tilak Nagar and stated that he had accompanied the JE on the date of service of notice.

He further deposed that as per procedure, he used to visit the concerned property alongwith the JE and used to sign the notice after affixation as per the directions of JE.

(f) PW10 Shri Nihal Singh, baildar, deposed that he remained posted in MCD West Zone as baildar from 1989 to 2004 and as per his duties, he used to accompany the JE concerned to the properties wherein unauthorized construction may have been carried for purpose of service of notices under the DMC Act.

He further identified his signatures at point B on the back of notice u/s 344 of DMC Act dated 05.07.2002 (Ex. PW-1/C) and stated that notice was affixed on the building as per instructions of JE concerned. He also stated that he had accompanied Ajay Kumar Shrotriya on the date of service of notice as reflected therein.

He further identified his signatures at point C on the back of CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

notice u/s 343 of DMC Act dated 12.07.2002 (Ex.PW1/D) and stated that he had affixed the aforesaid notice on the building in the presence of Ajay Kumar Shrotriya, JE who put his signatures at point E.

(g) PW1 Shri Moti Lal deposed that during the period May 2002 to November, 2004 he was posted as OI (Building) in West Zone, MCD. Further, he was custodian of unauthorized construction files and was maintaining circular files, movement register, demolition register, missalbandh registers and also used to make entries regarding unauthorized construction in missalbandh registers.

Further, FIR No. B/UC/WZ/02/322 dated 05.07.02 (Ex.PW1/A) regarding building no. 24/13A, Tilak Nagar was lodged by the then JE Ajay Shrotriya. He also identified his initials on the same at point B and further stated that he had entered particulars of the FIR in missalbandh register (Ex.PW-1/B) at Sr. No.322 at point A and file was handed over to Sh. A.K. Shrotriya, the then JE. Further, Ajay Kumar Shrotriya had issued show cause notice (Ex.PW1/C) dated 05.07.02 and on the back of the notice (Ex.PW1/C), noting regarding pasting of the notice in the presence of witnesses bears the signatures of Ajay Kumar Shrotriya.

He further stated that as per record, another notice under Section 343 (I) of DMC Act dated 12.07.02 (Ex.PW1/D) was issued under the signatures of Shri J.S. Yadav. He also stated that order dated 12.07.02 (Ex.PW1/E) on the basis of which Show Cause Notice (Ex.PW1/D) was issued also bears the signatures of Ajay Kumar Shrotriya. He also proved endorsement dated 15.07.02 on the back of notice dated 12.07.02 (Ex.PW1/D) under the signatures of Ajay CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

Kumar Shrotriya at point A regarding pasting of the notice in the presence of witnesses.

He further deposed that demolition register (Ex.PW-1/F-colly) maintained by him during his tenure in the office was kept in the office for the purpose of reporting of demolition by concerned JE and making entries in this regard. He further proved entry regarding demolition of property no.24/13A, Tilak Nagar at point A on page no. 30 of the register wherein it is recorded "demolition/ punctured wall of second floor and removed one shutter at ground floor" against the entry of file no.322/02 under the signatures of Ajay Kumar Shrotriya at point A. He further stated that as per file maintained in the office with respect to property No. 24/13A, Tilak Nagar, the order for demolition (Ex.PW1/G) was issued on 22.07.2002 under the signatures of Ajay Kumar Shrotriya at point A and there is also an endorsement regarding part demolition of the property on 26.08.2002 under the signatures of Ajay Kumar Shrotriya.

He further stated that as per rules the above said file should have been handed over to him on the same day on the arrangement of police force for demolition but the same was neither taken by Ajay Kumar Shrotriya nor the same was handed over to him by Ajay Shrotriya on 26.08.02. Further, as per movement register (Ex.PW3/D in CC No.93/11) kept in his office, no file pertaining to property in question or any other property was taken by Ajay Kumar Shrotriya from him for taking any action with respect to unauthorized construction on 26.08.02.

He further stated that the programme for demolition was used CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

to be chalked out by the concerned XEN and the same was communicated to the concerned JEs/Asstt. Engineer. Further, he used to prepare letter in regard of levy of demolition charges and after procuring the signatures of concerned Asstt. Engineer, used to send it to the owner/occupier for paying the same. He further stated that he never sent any letter to the owner/occupier of property no. 24/13A, Tilak Nagar for the demand of demolition charges.

He also stated that request regarding requisition of police force for the assistance in demolition was sent to concerned DCP/SHO of the area. Further, Action Taken Report against the unauthorized construction was used to be prepared by him on the basis of demolition register which is usually written by the concerned JE.

He further deposed that Sh.Vijay Kadyan and Brij Pal Singh were posted as XEN in West Zone in the year 2002-03.

He also stated that Action Taken Report (Ex.PW1/I) bears his signatures at point B on page No. 1,4,5,6,7 along with the signatures of the then EE, Sh. Kadyan at point A. He also stated that he used to prepare Action Taken Report on the basis of information provided in demolition register and entries of missalbandh register which was maintained by him during his official course of duty and the action taken report was sent to concerned Sr. Officers on monthly basis by him.

He further stated that there is no reference in the Action Taken Report for the month of August, 2002 (Ex.PW1/J) with respect to demolition action in respect of property No. 24/13A, Tilak Nagar, CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

New Delhi and the same bears the signatures of Sh. Brij Pal Singh at point A on each page. Further, there is no entry of any type of demolition in the missalbandh register against the property in question at Sr. No. 322 at point A. He also stated that the duty to return the file was of the JE/AE who took over the possession of the file and normally the file used to be returned on the same day after the action had been taken.

(h) PW15 Shri Brij Pal Singh deposed that he remained posted as EE from 16.04.02 till 09.05.03 in West Zone, Rajouri Garden, New Delhi and during that period he was looking after building department in the supervisory/administrative capacity. Further, the office was maintaining missalbandh register through OI(B) on daily basis in which entries regarding unauthorized construction were maintained on the basis of feed back given by the concerned JE/AE of the area. The missalbandh register used to be put up before him for formal closing on day to day basis and he used to put his signatures. Further, monthly report was used to be sent to the higher authorities for their information regarding day to day working and monthly progress.

He further stated that programme regarding demolition of unauthorized construction was to be prepared by OI(B) on urgent basis and same was put up before him or concerned DC/Zone for the intimation to concerned police station for the requisition of police force for the assistance in carrying out the demolition. Further, while sending monthly report to higher authorities it used to contain information regarding opening balance of month in regard to unauthorized constructions, information about the demolitions/ sealing CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

actions carried out during the previous month and booking of properties under 345 ( A) of DMC Act and action taken against the properties under Section 344 of DMC Act. He further stated that all the information used to be provided by OI(B) and the same was further countersigned by him (EE) for sending it to the higher authorities.

He further deposed that the Action Taken Report (Ex.PW2/G) for the period from January to May 2003 (except February 2003, April, 2002 to December, 2002 and October, 2002) were sent by him under his signatures at point A. Further, the reports were put up before him by the concerned OI(B) Sh. Moti Lal which were prepared on the basis of original demolition register.

He further stated that an entry regarding particular demolition is made in UC file and the same is put up before concerned AE and after due ratification by the AE, the UC file is marked back to OI(B).

He further stated that as per UC file (D-3) and demolition order available on page 5 Ex.PW1/G, there is marking of concerned file to AE (B) at entry available at point A and AE(B) made the comments "take action as per law".

He further proved entry regarding demolition on demolition order at point B dated 26.08.02 which showed that the part demolition was carried out on the same date and the file was marked to AE(B) but is not signed by the concerned AE(B).

He also stated that as per Action Taken Report for the month of July-August, 2002 available in D13 (Ex.PW2/G), there is no mention of demolition of property no.24/13A, Tilak Nagar. He further stated that the reports used to be sent by Mr. Moti Lal, O.I. (B) on the basis CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

of demolition register and missalbandh register, for the concerned period and after verifying from the records.

(i) PW3 Shri Lal Chand stated that he was posted as Driver in MCD department (Building), West Zone, Delhi and used to ferry the officials and the police force as and when directed by the officials and used to maintain log book (Ex.PW3/A). Further, in case the truck was requisitioned by a particular officer, the same was reflected and the log book was also countersigned by the officer concerned in the relevant column in the log book.

He further stated that as per entry dated 26.08.02 at point A in the log book, the vehicle was booked against the name of JE Shri A.K. Goel who visited Janakpuri Police Station to take police force for demolition and further, he had not gone anywhere with the vehicle with any other JE.

He further proved the entries depicting the position of vehicle on other dates and stated that as per entry dated 31.12.2002, he had taken the vehicle on the permission of the then JE Shri U.C. Saxena for repair and later on returned back to the office.

Further, as per entry dated 03.12.2002, he had taken the vehicle at the requisition of the then JE Shri Ajay Kumar Shrotriya for taking police force to PS Hari Nagar for demolition action and later on left the force at P.S. Hari Nagar and returned back to the office.

Further, as per entry dated 27.02.2003, he had taken the vehicle for repair. Further, the entry bears the signatures of Shri Ajay Kumar Shrotriya at point B and his signatures at point A and the vehicle was not taken for any demolition work on said date.

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

Further, as per entry at point 'G' on 27.03.2003, he had not taken vehicle anywhere because of breakdown. He further stated that vehicle was booked by Shri Daljeet Singh Hooda and the vehicle was taken to Subhash Nagar workshop for repair purposes but was not taken for demolition work on 27.03.03.

Further, as per entry at point 'H' on 19.09.2002, he had taken vehicle at the request of the then JE Mohd. Ahmed and had taken police force from P.S. Hari Nagar for action and then after leaving them back to P.S. Hari Nagar, the vehicle was brought back to office.

He further stated that as per entry at point 'I' on 03.03.2003, he had taken vehicle as per the requisition of Shri Ajay Kumar Shrotriya for taking police force from P.S. Punjabi Bagh and then left back at same P.S. He further deposed that as per entry at point 'J' on 31.03.2003, he had taken vehicle to P.S. Paschim Vihar with Shri Ajay Kumar Shrotriya but police force was not available on that day so he took his vehicle back to office.

He further deposed that after his retirement, Dal Chand was deputed as driver on the said vehicle.

(j) PW4 Ct. Jacob Mathew deposed that he remained posted as Constable in P. S. Tilak Nagar from 2002 to 2007 and was handling work of diary dispatch and delivery and acceptance of dak to various offices along with maintaining demolition register at PS since he was attached with Reader to SHO.

He further stated that the demolition register maintained at PS Tilak Nagar contains entry with respect to dak received from MCD CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

office regarding demolition of unauthorized construction and requirement of police force by MCD office. Further, the requisition of police force by MCD department was used to be put up before SHO for necessary action and arrangement and details of same were used to be maintained in demolition register by him or Reader.

He further proved entry at serial no. 34 dated 26.08.2002 in the register maintained at PS Tilak Nagar (Ex.PW4/A) vide which a request from MCD was received for requisition of police force. He further stated that the remarks "not carried out" in the last column against the aforesaid entry is in the hand of the then Reader HC Mahender Singh at point A and also clarified that in the said entry, there is no mention of any specific reason as to why demolition was not carried out on 26.08.02.

He further deposed that letter dated 25.07.2002 (Ex.PW4/B) was received from Executive Engineer (Bldg.), West Zone regarding requisition of police force for the month of August and at serial no. 16 at point A requisition of police force was sought for Tilak Nagar on 26.08.2002.

(k) PW11 Shri R.S. Rana, AGEQD proved the report with reference to examination of documents (Ex.PW11/B) comprising of seven pages alongwith detailed reasons.

He stated that documents of this case were referred by SP, CBI EOU-VI, New Delhi vide their letter no. 4664/3/1/2007/EOU-VI dated 10.6.08 (Ex.PW11/A) along with annexures. Further, after careful and thorough examination of the documents, he came to the conclusion which was expressed in the form of a report (Ex.PW11/B) CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

comprising of seven pages alongwith detailed reasons which bears his signatures at point B and signatures of Dr. B.A. Vaid, GEQD who had also examined the case independently and came to the same conclusion. He also stated that the report was sent to CBI office vide letter no. CX-166/2008-1909 dated 31.12.08 and bears signatures of Shri B.A. Vaid at point A on Ex.PW11/B.

(l) PW6 Shri Moti Ram, PW7 Shri Prem Nath, PW8 Shri Baldev Raj, PW9 Shri Subhash Chand Thapar are the occupants/purchasers of the shops existing on ground floor of the premises in question.

PW6 Shri Moti Ram deposed that he had purchased a shop situated at ground floor of property no. 24/13 A, Tilak Nagar from Smt. Krishna Pahwa in 1999 which he is running under the name of Moti Bakers. He identified his signatures at point A on each page of agreement to sell (Mark PW6/A) which was executed at the time of purchase of the said shop. He further deposed that he never received any notice from MCD to the effect that the property is unauthorized. He further deposed that neither any MCD official had ever visited the shop, nor pasted any demolition notice on the shop at any point of time since he had purchased the shop. Further, the MCD authorities had never visited the shop for demolition at any point of time since 1999.

(m) PW7 Shri Prem Nath deposed that he had purchased a shop situated at ground floor of property no. 24/13 A, Tilak Nagar from Smt. Krishna Pahwa and running the same under the name and style CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

of Jyoti Tailors. Further, an agreement to sell (Mark PW7/A) alongwith possession letter (Mark PW7/B) were executed at the time of purchase of the said shop.

He also stated that he never received any notice from MCD to the effect that the property is unauthorized. Further, neither any MCD official had ever visited the shop nor pasted any demolition notice on the shop at any point of time since he had purchased the same.

He further deposed that the MCD authorities had never visited the shop for demolition at any point of time since his occupation of the aforesaid shop. Further, he handed over papers of shop no. 2 & 3 to CBI officials vide receipt memo dated 04.01.2008 (Ex.PW7/C) which bears his signatures at point A.

(n) PW8 Shri Baldev Raj, deposed that a shop was purchased in premises no. 24/13A, Tilak Nagar from accused Krishna Pahwa. He further clarified that there are four shops in the said premises on ground floor which were owned by Shri Moti Lal, Shri Prem Nath, Sh. Subhash Chand Thapar and himself. Further, neither any notice was received, nor any demolition action was taken by MCD in respect of said shops. He also clarified that there are two floors constructed above the shops on first and second floors.

He further identified photocopy of GPA, Will, Agreement to Sell, SPA along with receipts (Mark PW8/A-colly) which were executed for the purpose of purchase of shop in the premises in favour of his wife (late Smt. Gulshan). Further, he identified signatures of his wife at point A on Mark PW8/A-colly. He also stated that the papers were handed over to CBI officials on 4.1.08 vide receipt memo CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

Ex.PW8/B.

(o) PW9 Shri Subhash Chand Thapar deposed that he is having a shop in property no. 24/13A Tilak Nagar for the last 35 years. Earlier this shop was rented and later on purchased in 2002 from Krishna Pahwa. He further stated that GPA Mark PW9/B was executed for purpose of purchase of shop in favour of his wife and documents regarding purchase were handed over to CBI as per seizure memo Ex.PW9/A which bears his signatures at point A. He further deposed that none from MCD visited the premises for demolition or affixation /service of notice.

(p) PW12 Shri Girdhari Lal deposed that since 1953 he was residing at 24/13A, Tilak Nagar which is in the name of his father Shri Kanshi Ram. Further, initially the said property was measuring 496 sq. yards but later on, after the demise of his father, the property was bequeathed to him along with his brothers and he got 128 sq. yards as share in the abovesaid property. He further stated that he got the aforesaid premises repaired in 1980 and it is a single storey house along with a store on the first floor. Further, the other two portions of the plot are in possession of his other brothers which have a construction upto ground plus three floors in one portion and another portion has a construction of ground plus two floors. He further deposed that all the four portions of the plot were in possession of the four brothers respectively but portion of the property which fell in share of Brij Lal had been sold to Bharat Bhushan in 1980. He further deposed that he has never received any notice from MCD regarding CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

unauthorized construction raised in the property or for demolition of the same. Further, no action for demolition had been taken by MCD in respect of the said property to his notice.

(q) PW18 Insp. N. Mahato deposed that on 23.01.2007, he was posted at EOU-VI, New Delhi as Inspector and was entrusted with the investigation of complaint dated 23.01.2007 which was enquired at preliminary stages by SI Arvind Kumar and thereupon it was entrusted to him under the signatures of the then SP Shri A. K. Ohri on FIR dated 23.01.2007 (Ex.PW18/A). Further, FIR was accompanied with the complaint of SI Arvind Kumar dated 23.01.2007 (Ex.PW17/A) vide which he was asked to investigate regarding unauthorized construction and demolitions carried out by accused A.K. Shrotriya during his posting in building department west zone of MCD New Delhi. He further stated that during the course of investigation, he obtained the search warrant from Spl. Judge, Tis Hazari Courts u/s 93 Cr.P.C and conducted search in the presence of independent witnesses and other team members at residence and office of Ajay Shrotriya. Further, he also collected various documents from MCD office Rajouri Garden, occupants/ builders of the buildings in question, office of CPWD like missalband register (Ex.PW2/B & C in CC No. 93/11), demolition register (Ex.PW2/D) in CC No.93/11, log book (Ex.PW5/A) in CC No.93/11, attendance register (Ex.PW8/DA) in CC No.93/11, demolition register pertaining to PS Tilak Nagar (Ex.PW7/A in CC No.93/11) and copy of the same is placed in respective chargesheets.

He also stated that he obtained opinion from GEQD regarding CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

handwriting as per marks on various registers and documents and further the documents were forwarded for opinion in sealed cover vide letter dated 10.06.2008 (Ex.PW11/A) and also the report (Ex.PW11/B) was thereafter obtained.

He further stated that the property in question was also inspected by the officials from CPWD and he had accompanied the officials for aforesaid purpose and obtained report (Ex.PW2/A) from the concerned department.

He also stated that the unauthorized construction file was seized consisting of FIR, notices u/s 343/ 344 DMC Act and demolition order along with other relevant documents. Further, he had collected the action taken report maintained in respect of demolition carried in the concerned properties and statement of OI(B) and EE alongwith other concerned officials and witnesses were also recorded. He also joined the police officials from the concerned PS wherein a separate demolition register was also maintained at some of the Police Stations and relevant documents were collected in this regard.

He further deposed that as per investigation, the accused conspired for purpose of fabrication of records and unauthorized construction was not demolished in the property in accordance with law.

6. In her statement u/s 313 Cr.P.C. accused Krishna Pahwa denied the case of prosecution and stated that she is innocent and has been falsely implicated in this case. She further took a stand that the building was constructed by her husband during his lifetime around 1989 and she had nothing to do with the construction/renovation of CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

the building. Further she had never met any MCD official. She also denied receipt of any notice u/s 343/344 DMC Act and factum of demolition. She also claimed that construction was old and the plot was allotted to her father-in-law. She also stated that Moti Ram, Prem Nath and Subhash Chand Thapar were tenants in shops during lifetime of her father-in-law for 30-35 years. Further shop in possession of Baldev Raj was earlier tenanted to one Mehtab and subsequently purchased by him. Also, the shop in possession of Moti Ram was purchased by him in 1999. However, she did not lead evidence in defence.

Similarly, accused Ajay Kumar Shrotriya also denied the case of the prosecution. Accused further took a stand in statement u/s 313 Cr.P.C that he has been falsely implicated in this case with a view to save the actual culprits since no officer in whose duration the construction was carried out or who joined after his transfer had been booked or even interrogated by CBI. He also filed statement u/s 313(5) Cr.P.C.

Accused Ajay Kumar Shrotriya examined two witnesses in defence, namely, DW1 Shri Pradeep Kumar Mittal & DW2 Shri Umesh Singh (Baildar).

DW1 Shri Pradeep Kumar Mittal, OI(B), West Zone, MCD Delhi produced the record in respect of tenure and ward assigned to Ajay Kumar Shrotriya, Junior Engineer during the period 03.05.2002 to 30.09.2003 as per the available record of building department in the CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

form of chart (Ex.DW1/X collectively). The same consisting of five pages was prepared on the basis of the office orders as available in the Area Distribution Register w.e.f. 01.01.2001 and bears his signatures at point A, signatures of Shri A.K. Meena, EE at point C and Shri R.K. Ailawadi, Superintending Engineer at point B on each page.

He also produced a chart indicating the name of the Junior Engineers and Assistant Engineers (Ex.DW1/Y & DW1/Z respectively) who had worked in the West Zone Building Department during the period 03.05.02 to 30.09.03 bearing his signatures at point A alongwith Shri A.K. Meena, EE(B) at point B and Shri R.K. Ailwaadi, SE at point C. He further deposed that the chart has been prepared on the basis of Area Distribution Register and office records.

The posting of respective Junior Engineer in the concerned wards in which the property booked by MCD were located was also provided by way of chart (Ex.DW1/X).

DW2 Shri Umesh Singh deposed that he remained posted as baildar in MCD, West Zone during the tenure of Ajay Kumar Shrotriya in 2002-03 and his duties included to accompany JE as and when directed for purpose of execution of notices under DMC Act as well as to accompany the JE/AE for purpose of demolition action to be taken against any unauthorized construction. He stated that he also used to accompany Ajay Kumar Shrotriya for purpose of execution of notices and demolition action. and about 4-6 baildars used to accompany the JE/AE in case the demolition action had to be taken.

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

He further stated that in case of part demolition action, the wall used to be demolished or the chhajjas used to be punctured or any other action taken as directed by JE/AE and AE used to be the incharge of the demolition team. Further, they used to visit the site for demolition action both with the aid of police as well as without the aid of police if so directed by JE/AE. He also stated that they used to visit site by official vehicle i.e. the truck if the same was available and at times also used to visit site by their own conveyance.

He further deposed that he was summoned by CBI on 2/3 occasions but did not recollect the property numbers in respect of which the enquiry was made. Further, he could not recollect if he had visited property no. 24/13A for purpose of demolition action.

7. Counsel for accused Ajay Kumar Shrotriya assailed the case of prosecution on various grounds detailed below and also filed written submissions on record:

a) That the sanction order Ex.PW13/A had been passed by PW13 Shri Ashok Kumar, Competent Authority against accused Ajay Kumar Shrotriya without application of mind.

b) That Ajay Kumar Shrotriya had no occasion, motive or opportunity to obtain any pecuniary advantage and the investigating agency had malafidely implicated accused Ajay Kumar Shrotriya who was on deputation from DDA with MCD for a short period from 06.05.02 to 30.09.03 ignoring the role of all other JEs/AEs posted in West Zone, MCD.

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

c) It was also vehemently urged that there was no evidence to prove conspiracy between the accused and the same could not be inferred in the absence of any evidence to show meeting of minds. It was also submitted that no evidence had been led to show of passing of gratification or meeting of accused at any point of time.

d) Counsel for accused Ajay Kumar Shrotriya also urged that demolition charges were not to be claimed by Ajay Kumar Shrotriya since the same was the job of OI(B) and also no demolition charges were generally claimed for carrying out minor demolitions.

e) It was vehemently contended that the investigating agency had commenced the investigation only with the motive to fix Ajay Kumar Shrotriya, JE who had been on short period of deputation leaving aside the role of all other officials i.e. JE, AE, EE, SE or DC. It was urged that accused had been already acquitted in CC No.92/11, 111/11 & 109/11 wherein the prosecution had miserably failed to point out evidence of conspiracy or that the demolition action had not been taken by the accused. In the aforesaid context, it was pointed out that in the chargesheet bearing CC No.117/11 arising out of FIR (RC) No.1/2007, the prosecution had relied upon statement of one Ramesh, baildar recorded u/s 161 Cr.P.C. who had admitted the carrying out demolition in property no. A5/11, Paschim Vihar involved in CC No.111/11 but the same was deliberately CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

suppressed by the investigating agency in CC No.111/11 and accused stood acquitted therein considering the said infirmities and motivated investigation.

It was also contended that in CC No.92/11 wherein accused has been acquitted by this Court, Ajay Kumar Shrotriya was arrayed as an accused despite the fact that he had been never posted in the Ramesh Nagar Ward wherein the property was alleged to have not been demolished by him. It was contended that this Court has already observed the serious lapses in investigation in aforesaid case.

f) It was also contended that it could not be inferred that the proceedings were not conducted by Ajay Kumar Shrotriya as per noting dated 26.08.02 and partial demolition action was not carried out, merely because the file was not reflected by the OI(B) in the 'file movement register'. Reliance was also placed on the cross-examination of PW1 Shri Moti Lal who admitted having missed the making of entries several cases due to overload of work in the file movement register and other record, wherein demolition had been carried.

g) It was also submitted that there was no bar for the JE to visit the property in question for taking demolition action against the unauthorized construction without police force and with the available staff of MCD. It was further urged that Ajay Kumar Shrotriya had visited the property in question on 26.08.02 CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

without police force and taken action in the four properties as reflected therein. It is submitted that the prosecution had only filed chargesheet in respect of file number 322/02 pertaining to present case and 202/02 pertaining to CC No.117/11 but the entries with respect to file number 360/02 dated 19.08.02 and 321/02 dated 05.07.02 were not challenged though the same have also not been reflected in the file movement register.

h) It was also contended that the inference could not be drawn that partial demolition action had not been taken on 26.08.02 on the basis of inspection conducted in 2008 by CPWD reflecting the existing construction as it could not be ruled out that the repairs/renovation may have been carried by the owner/builder in the intervening period of about five years.

i) It was also urged that Ajay Kumar Shrotriya had been posted in the concerned Ward No. 22 for a short duration from 20.06.02 to 02.09.02, 31.12.02 to 31.03.03 & 10.04.03 to 29.05.03 and the investigating agency had made him as a scapegoat ignoring the role of the officials posted prior to him and after his transfer from the concerned ward though they failed to initiate any demolition action. It was also pointed out that Shri A.K. Mittal, Shri U.C. Saxena, Shri S.K.Anand and Shri R.P.S. Nain who were posted in the intervening periods were given clean chit who failed to initiate any action but Ajay Kumar Shrotriya had been wrongly booked by the investigating agency by disputing the demolition action taken CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

by him.

j) It was also contended that there was no requirement or procedure that demolition action could not be carried without obtaining the police force and in fact on 26.08.02 the action was taken by him in Tilak Nagar area without the aid of police force. It was submitted that merely because the demolition had been taken by Shri A.K. Mittal in the area of Janakpuri with the help of police force as reflected in entry dated 26.08.02 in the demolition register, it could not be assumed that Ajay Kumar Shrotriya had no powers to independently proceed in the area in his jurisdiction for taking the action as per law. It was urged that a mere entry in the demolition register maintained at P.S. Tilak Nagar reflecting "not carried out" against the relevant entry did not lead to inference that the demolition action could not have been taken by Ajay Kumar Shrotriya without police force but only inference could be that aid of police force was not used for carrying demolition action on 26.08.02. It was also pointed out that the reason for 'not carrying out demolition' is not reflected in entry no. 34 in the demolition register maintained by P.S. Tilak Nagar and no adverse presumption could be drawn against Ajay Kumar Shrotriya merely on basis of aforesaid entry.

k) It was also vehemently contended by counsel for accused that no evidence has been led by prosecution to show that the demolition action had not been taken by the accused on the 26.08.02 as per entry made in demolition register and only CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

an inference has been drawn that entry is forged on account of failure of OI(B) to update the record.

l) Counsel for accused Ajay Kumar Shrotriya also relied upon John Pandian Vs. State Rep. by Inspector of Police, T. Nadu, MANU/SC/1025/2010 : 2011(1) JCC 193 in support of the contentions made by him.

m) Counsel for accused also contended that the motivated investigation is even reflected from the fact that though at the time of booking of FIR on 05.07.02, the unauthorized construction was reflected at GF, FF and Second Floor but later on further unauthorized construction appears to have been added on the terrace floor which is reflected in CPWD report as 198.45 sq. ft. but the officers during whose period subsequent construction had been carried were not investigated by the CBI.

Counsel for co-accused Krishna Pahwa submitted that there could not have been any conspiracy, since different JEs were posted prior to booking of the alleged construction by MCD and after passing of demolition order and no evidence has been led on record to show the meeting of minds with Ajay Kumar Shrotriya in particular or any other MCD official. It was also contended that there is absolutely no evidence to reflect that Krishna Pahwa who is a old widow lady was known to Ajay Kumar Shrotriya, JE or had ever met him or if any gratification had been passed. It was also contended that the co-

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

accused Krishna Pahawa had absolutely no role in making of any entries in the records of MCD which are in possession of the MCD officials. However, the partial demolition action claimed to have been carried in the property in question on 26.08.02 was disputed alongwith service of notices u/s 343/344 DMC Act, 1957. Counsel for accused also submitted that there was no evidence on record to show that Krishna Pahwa was the builder of the property which had been earlier owned by her deceased husband.

On the other hand, ld. PP for CBI vehemently contended that the entry dated 26.08.02 in the demolition register as well as UC file was falsely made in conspiracy in order to help accused Krishna Pahwa and save the property from demolition. It was further contended that the contradictions in the testimony of witnesses were of minor nature and did not discredit the statement of the witnesses in entirety. It was also submitted that the entry dated 26.08.02 pertaining to carrying of partial demolition was forged and fabricated in MCD records by Ajay Kumar Shrotriya as it is not supported by the corresponding record. Apart from above, reliance was also placed on the inspection report prepared by CPWD in the year 2007-08 after the registration of FIR/RC by CBI which reflected the unauthorized construction carried in the property.

8. I have heard Shri Y. Kahol, Advocate for accused Ajay Kumar Shrotriya, Shri R.K. Thakur, Advocate for accused Krishna Pahwa, ld. PP for CBI at length and perused the record.

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

Before deliberating upon the evidence on merits, the scope of Section 120B IPC may be briefly noticed, as the foundation of the prosecution case is that the entry dated 26.08.02 was forged by Ajay Kumar Shrotriya in furtherance of conspiracy with co-accused Krishna Pahwa and it was wrongly reflected that the demolition action had been partly taken in the property, to safeguard the same from demolition. It is also necessary to find out in this case as to whether the accused Ajay Kumar Shrotriya abused his position and acted dishonestly or with a corrupt or oblique motive.

Criminal conspiracy has been defined in Section 120A of the Indian Penal Code and Section 120B provides punishment for the same. A conspiracy must be put to action, inasmuch as, so long a crime is generated in the mind of the accused, it does not become punishable. The offence is said to have been committed only when the thoughts take concrete shape of an agreement to do or cause to be done an illegal act or an act although not illegal by illegal means. The gist of the offence of the conspiracy lies in agreement being the essential element and mere knowledge of the plan is not per se enough. It also needs to be taken into account that the acts or the conduct of the parties must be cautious and clear enough to infer their concurrence as to common design and its execution. Also the incriminating circumstances must form a chain of events from which conclusion about the guilt of the accused could be drawn.

For the purpose of bringing the charge of criminal conspiracy CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

read with other sections for which the accused has been charged, the prosecution is required to show the circumstances on which it could be inferred that the accused had hatched a conspiracy. Though often the conspiracy is hatched in secrecy and for proving the offence direct evidence may not be possible to obtain but in aforesaid eventuality the circumstances need to be proved which may lead to an inference that the accused acted in conspiracy. It has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence.

The principles laid down for ascertaining the conspiracy as referred in para 40 & 41 of (2009) 8 Supreme Court Cases 617 State of Madhya Pradesh vs. Sheetla Sahai and Others may aptly be quoted:

"40. In Kehar Singh v. State (Delhi Admn.), this Court has quoted (at SCC p. 731, para 271) the following passage from Russell on Crimes (12th Edn., Vol.1) The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.

41. In State (NCT of Delhi) v. Navjot Sandhu this Court stated the law thus: (SCC p.691, para 101) CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."

9. Since accused Ajay Kumar Shrotriya is also alleged to have abused his position and by corrupt or illegal means obtained pecuniary advantage, it may be relevant to refer to observations made by the Hon'ble Apex Court in S.K. Kale vs. State of Maharashtra AIR 1977 Supreme Court 822 with reference to Section 5(1)(d) of the Prevention of Corruption Act, 1947. It was therein held that the abuse of position in order to come within the mischief of the section must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It was further held that it is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.

In the aforesaid context, since the conspiracy has been inferred on circumstantial evidence, it may be apt to refer to the observations of the Hon'ble Supreme Court in para 21 & 22 of S.P. Bhatnagar and CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

Another vs. The State of Maharashtra AIR 1979 Supreme Court

826.

"21.................It would be well to bear in mind the fundamental rule relating to the proof of guilt based on circumstantial evidence which has been settled by a long line of decisions of this Court. The rule is to the effect that in cases depending on circumstantial evidence there is always the danger that conjecture or suspicion may take place of legal proof. In such cases the mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely it is, considering such matters, to over-reach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.

22. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully 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 CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

10. Now, adverting to the chargesheets filed by the prosecution, the evidence fairly needs to be assessed in the background that though the directions issued by the Hon'ble High Court in WP(C) 4582/2003 directed to probe the nexus of MCD officers including suspects with the hierarchy in the Engineering Department, builders and political bosses but the investigation has been intentionally confined to the cases involving accused Ajay Kumar Shrotriya, the then JE on deputation from DDA to MCD for a period of less than one and a half years. The posting of Ajay Kumar Shrotriya in the respective wards in the West Zone involving the 15 properties investigated by CBI has been for short periods revolving for few weeks to few months. The role of the other JEs, AEs, EE during whose tenure some of the properties may have substantially come up and who failed to take any further demolition action after transfer of Ajay Kumar Shrotriya from concerned ward has been completely overlooked by the investigating agency and investigation has been focused only in respect of the entries of partial demolition action made by Ajay Kumar Shrotriya in respect of the aforesaid 15 properties. It is pertinent to note that the files never stood closed by entries made by Ajay Kumar Shrotriya reflecting partial demolition action during his postings in respective wards. The further demolition action required to be taken has been completely ignored by the CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

succeeding JEs including the AEs & EE who were equally responsible to take the demolition proceedings to logical end.

The investigation and circumstances reflect a clear partisan role taken by the investigating agency in picking up selective cases pertaining to Ajay Kumar Shrotriya and ignoring all other aspects of investigation in blatant violation of the directions for investigation issued by the Hon'ble High Court.

However, the same does not lessen the responsibility of Ajay Kumar Shrotriya, JE and each respective case requires to be scrutinized independently to assess if the entries for partial demolition were forged by him in conspiracy.

It may also be relevant to observe at this stage that accused Ajay Kumar Shrotriya has already been acquitted in CC No. 92/11, 111/11 & 109/11 wherein the prosecution failed to prove conspiracy beyond reasonable doubt or that the entry of partial demolition action had been forged by him. In CC No.92/11, Ajay Kumar Shrotriya was arrayed as an accused by investigating agency despite the fact that he had never been posted in Ramesh Nagar Ward and the prosecution miserably failed to prove that demolition entry in respect of property concerned was forged by him.

11. Keeping in view the principles referred to in the preceding paragraphs, observations made in para 10 above and the period of posting of Ajay Kumar Shrotriya in the ward in question, the CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

circumstances relied upon by the prosecution may now be assessed to see whether they factually exist and, if so, whether they are of a character to be wholly incompatible with the innocence of the accused and consistent with their guilt.

Evidence has been led on record in defence whereby the posting of Ajay Kumar Shrotriya and other JEs in the concerned ward wherein property in question has been located has been revealed for the period 2002-03 as under:

     Ward Name of JE's                                  Tenure of JE's in said
      No.                                               Ward
                 Sh. Ajay Kumar Shrotriya 20.06.02 to 02.09.02
                 Sh. A.K. Mittal                        02.09.02 to 14.012.02
     21-22 Sh. U.C. Saxena          14.12.02 to 31.12.02
           Sh. Ajay Kumar Shrotriya 31.12.02 to 31.03.03
                 Sh. S.K. Anand                         31.03.03 to 10.04.03
                 Sh. Ajay Kumar Shrotriya 10.04.03 to 29.05.03
                 Sh. R.P.S. Nain                        29.05.03 onwards

The aforesaid chart clearly reflects that Ajay Kumar Shrotriya was posted only for a short period from 20.06.02 to 02.09.02, 31.12.02 to 31.03.03 & 10.04.03 to 29.05.03. The property in question was booked for unauthorized construction on 05.07.02 by Ajay Kumar Shrotriya as well as partial demolition action was shown to have been taken by him on 26.08.02, though the demolition action is disputed by the prosecution.

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

It cannot be lost sight of the fact that the building was booked "on completion/on complaint" as per the endorsement made on the top of the FIR Ex.PW1/A only by Ajay Kumar Shrotriya and no action had been taken by JE/AE posted prior to him. It may be noticed that unauthorized construction is stated to be by way of "U/C at GF, FF, IInd FF, Hall at GF, Hall at FF and IInd F". However, the extent/area of construction existing on the date of booking of FIR has not been specified though obviously part building stood constructed much prior to the date of booking as is clearly revealed from the statement of prosecution witnesses who were in possession of different shops existing on the ground floor of the property. The extent/area of unauthorized construction exclusively carried at the time of booking of FIR has also not been reflected in detail in FIR Ex.PW1/A and as such the extent of unauthorized construction which was under way and which may have been carried earlier has not been distinctly brought out by prosecution. Obviously, the owner of the property as on 05.07.02 could not be made responsible for criminal consequences of conspiracy for the construction which already existed in the property even if the same was unauthorized. The investigating agency does not appear to have taken the aforesaid aspect into consideration.

Further action by way of issuance of notices u/s 344 (1) DMC Act, 1957 dated 05.07.02 Ex.PW1/C as well as notice u/s 343 DMC Act dated 12.07.02 Ex.PW1/D, was taken as per record of MCD and is not disputed by prosecution. The proceedings taken up by Ajay Kumar Shrotriya w.r.t. issuance of the aforesaid notices cannot be doubted since the notices have been duly issued under the signatures CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

of the then AE Shri J.S. Yadav and the execution of the same is also supported by the prosecution witnesses i.e. the baildars who had accompanied for purpose of execution of notices. However, the receipt of the aforesaid notices u/s 344/343 DMC Act has been denied by co- accused Krishna Pahwa. Thereafter, even the passing of the 'demolition order dated 22.07.02 Ex.PW1/G is not disputed by the prosecution which was proposed by Ajay Kumar Shrotriya, JE and approved by Shri J.S. Yadav, the then AE with an endorsement dated 22.07.02 to the effect "take action as per law".

The investigating agency has only disputed the entry dated 26.08.02 made by Ajay Kumar Shrotriya, JE on the demolition register whereby partial demolition action was stated to have been carried by him and the endorsement was made to the following effect "322/02/5.7-demolished/punctured hall at IInd F and removed one shutter at GF". A corresponding entry dated 26.08.02 was also made in the UC file (i.e. on the demolition order dated 22.07.02) to the effect "demolished/punctured hall at IInd F and removed one shutter at GF." The file has been thereafter shown to be marked to AE(B) but thereafter does not bear any further endorsement.

It is pertinent to reiterate that the unauthorized construction must have come over a period of at least few months prior to booking of unauthorized construction by way of FIR by Ajay Kumar Shrotriya on 05.07.02. However, the carrying of construction was completely ignored by the JEs/AE/SE prior to posting of Ajay Kumar Shrotriya on 20.06.02 but the role of the CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

said officers has been completely ignored by the investigating agency. No demolition action has been taken by any other officer for demolition of unauthorized construction though only partial demolition action was indicated to have been carried by Ajay Kumar Shrotriya on 26.08.02 and still the investigating agency has not bothered to look into the role of the other JE/AE/EE/SE posted after transfer of Ajay Kumar Shrotriya on 02.09.02 from concerned ward. The entire blame and investigation only centres around entry dated 26.08.02 which is claimed by prosecution to have been forged in conspiracy with the owner of the premises Smt. Krishna Pahwa. It is imperative to notice that if the unauthorized construction had commenced prior to posting of Ajay Kumar Shrotriya and further demolition action was not taken after his transfer, the conspiracy obviously would have been with the JEs/AEs/EE during whose tenure the construction had been commenced rather than the official who had booked the unauthorized construction i.e. Ajay Kumar Shrotriya. The evidence on the point of conspiracy shall be discussed in detail in the subsequent paras but it is suffice to point out that there is no evidence as to the meeting of minds with Krishna Pahwa on record and the inference as to conspiracy with Ajay Kumar Shrotriya is only based upon entry dated 26.08.02. The root of the prosecution case as such stands dented.

12. It is further pertinent to observe that by mere part demolition action dated 26.08.02 the file never stood closed. Ajay Kumar Shrotriya had been transferred from the ward within a period of about CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

six days of making of entry dated 26.08.02. Merely because the file has not been further taken up on being marked to AE(B) does not automatically lead to an inference that the proceedings had been forged. PW16 Shri J.S. Yadav the concerned AE in his examination- in-chief itself clarified that it is possible that if the concerned AE is not available in the office, the file may have directly gone to OI(B). He also clarified during cross-examination that JE has no powers to close the unauthorized construction file and the same is closed when the complete action for demolition is taken. He further stated during cross-examination that if the JE has not been able to take demolition action on any particular date, he may still take further action on the same date, if required.

PW15 Shri Brij Pal Singh, EE in this regard also admitted in cross-examination that there was no requirement to forward the request for requisition again on the date fixed for demolition action and the demolition action could be carried by JE concerned without police force in an ongoing unauthorized construction. In the aforesaid context, the statement of DW2 Shri Umesh Singh, Baildar recorded in present case is also relevant as he deposed during cross- examination that they used to demolish the property even without the aid of police force wheresoever it was directed by JE concerned and they also used to visit the property by their personal conveyance as it was not necessary to commute in official vehicle provided by MCD. Shri Umesh Singh, Baildar examined as PW1 in CC No.109/11 by prosecution also made a similar statement to aforesaid extent in said case.

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

PW18 Insp. N. Mahato, IO also admitted that the Baildars who had executed the notices under the DMC Act had disclosed during investigation that they used to accompany their respective JEs for pasting notices and demolition action. He was also confronted during his cross-examination dated 22.09.12 on page 26 with the statement of Sh. Umesh Singh recorded u/s 161 Cr.P.C. (Ex.PW18/DX) wherein Sh. Umesh Singh had stated that he used to visit the field with Ajay Shrotriya, JE for purpose of execution of notices and part demolition of unauthorized construction.

In view of above, merely because the JE visited the property without the police aid, it cannot be presumed that the entry was forged or the partial demolition had not been carried out as inferred by the Investigating Agency. More so for the reason that the conspiracy with co-accused Krishna Pahwa has not been proved beyond reasonable doubt, it may not be possible to infer forgery merely on this count.

It may also be noticed that the succeeding officers i.e. the JE and the AE posted after transfer of Ajay Kumar Shrotriya from the concerned ward on 02.09.02 did not bother to take up the file for further demolition action but the investigating agency has ignored their role. The entry dated 26.08.02 made by Ajay Kumar Shrotriya, JE has only been disputed and claimed to be forged by the prosecution though the AEs and JEs subsequently posted were equally responsible to ensure complete demolition action and failed in their duty but have CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

been given clean chit by investigating agency.

13. Prosecution has next taken a stand that entry dated 26.08.02 made in the demolition register and UC file is forged and wrongly introduced by Ajay Kumar Shrotriya, JE since no police force was taken on aforesaid date and he could not have proceeded to carry the demolition action on his own. It has also been contended that since the movement of the file is not reflected in the file movement register, the file was not taken up as per procedure and the entry of demolition has been fabricated later on. It is further submitted that the demolition action had not been carried as the same is not reflected in the 'action taken report' for the corresponding month which is prepared by the OI(B) and also since the 'demolition charges' had not been claimed by the JE.

In order to consider the contentions raised by ld. PP for CBI, it may be appropriate to refer to the entry dated 26.08.02 made in the 'demolition register' as well as the connected circumstances to assess if it is proved by the prosecution that the partial demolition action had not been taken up as reflected in the aforesaid entry dated 26.08.02 in the demolition register maintained by MCD.

A bare perusal of entry dated 26.08.02 made in the demolition register reflects that on 26.08.02 the schedule was fixed for demolition at Tilak Nagar under jurisdiction of Ajay Kumar Shrotriya, JE and also demolition programme was fixed in the area of P.S. Janakpuri under jurisdiction of A.K. Mittal, JE. The fact that Ajay Kumar CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

Shrotriya did not visit P.S. Tilak Nagar as also claimed by him is corroborated by the log book relied by the prosecution which reflects as per deposition of PW3 Shri Lal Chand that on 26.08.02 the vehicle was taken from West Zone to P.S. Janakpuri and after taking action the police force was left at P.S. and vehicle returned to West Zone. There is no reference even in the entry made in the log book that Ajay Kumar Shrotriya had visited the Police Station or that the action had been taken in the area of Tilak Nagar with aid of police. The same is consistent with the stand of Ajay Kumar Shrotriya that no action was taken with the aid of police force and no adverse inference can be drawn merely on this count that the entry had been forged since the police aid was not taken for the action. The testimony of the witnesses during cross-examination is categorical to the effect that the action could have been taken by the JE, even without the police force and his explanation that he visited the property on his own with baildars cannot be discarded. If any such entry was forged, the same would obviously have been challenged or taken by AE or any other senior officer. The entry in log book dated 26.08.02 as relied by prosecution does not lead to any presumptive inference that the entry dated 26.08.02 in demolition register had been forged.

14. In the aforesaid aspect, it may also be noted that the demolition action is stated to have been taken in four properties on 26.08.02 by Ajay Kumar Shrotriya, JE i.e. file no.360/02 dated 19.08.02, file number 321/02 dated 05.07.02, 322/02 dated 05.07.02 (i.e. present case bearing CC No.114/11) and file number 202/02. The prosecution CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

has disputed the demolition entry in respect of 322/02 and 202/02 but has not filed any charge-sheets in respect of demolition action carried in respect of file number 360/02 dated 19.08.02 & file number 321/02 dated 05.07.02. This reflects that demolition action in respect of file number 360/02 dated 19.08.02 & file number 321/02 dated 05.07.02 is not disputed by investigating agency even though the files of the aforesaid properties were not shown in the file movement register.

It is also imperative to point out that mere reflection of movement of files by OI(B) in the 'file movement register' for purpose of demolition action on the date fixed for demolition does not appear to be conclusive to determine that the demolition action had not been taken. As per contention made by ld. PP for CBI, the movement of the files was recorded in the file movement register only in case the demolition action was scheduled with police force as per monthly programme. In view of above, the movement of files on the dates other than fixed for scheduled demolition was not recorded and the the UC files in custody of OI(B) could have been taken by the JEs /AEs for any other proceedings without recording in the file movement register. In the aforesaid circumstances, the possession of the UC file being obtained by JE without entry in the demolition register since he did not accompany the official vehicle which proceeded with Shri A.K. Mittal, JE to PS Janakpuri, cannot be ruled out and no adverse inference can be drawn merely because the movement of file was not reflected in the movement register. It may also be noticed that the custody of the files and demolition register maintained by MCD remain with OI(B) but no explanation has come CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

as to how the files could have been accessed by Ajay Kumar Shrotriya if the same remained in possession of OI(B). Further, no complaint was lodged by AE(B) or EE in case the demolition action had been wrongly shown by Ajay Kumar Shrotriya in the file.

It may next be noticed that PW16 Shri J.S. Yadav, AE stated in his examination-in-chief itself that though as per movement register there is no reflection of handing over of file from OI(B) to JE on 26.08.02 but might have handed over the file without making the entry.

It may also be mentioned that only the attested copies of file movement register have been produced by the investigating agency and the original register has not been brought on record.

15. It may also be noticed that a mere non entry of the file in the movement register or the action taken report or the missalbandh register or demolition claim charge register does not automatically lead to an inference that the entries for partial demolition action had been forged by the JE. The same needs to be assessed in the light of other circumstances and evidence on record.

It is imperative to note that the during cross-examination of PW Moti Lal {the then Officer Incharge (Buildings)}, it has been brought on record that various entries existing in the demolition register were not supported by corresponding entry in the missalbandh register, file movement register, demolition charge register which may be due to CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

negligence or oversight by OI(B) but were not disputed or charge- sheeted by Investigating Agency. The aforesaid aspect has been admitted by PW4 Moti Lal in his cross-examination dated 07.03.12 page no.6 in CC No.109/11 to the effect that:

"There is an entry in demolition register dated 19.03.03 in respect of properties no. 14/9 and 10/62 Punjabi Bagh but there is no corresponding entry in missalbandh register, file movement register, demolition charge register. I cannot say anything about the entry in ATR since the same for the said period is not available on judicial record. Similar is my reply in respect of property no. D-12 Rajouri Garden, 10/62 West Punjabi Bagh, 21/98 West Punjabi Bagh, 34/75 West Punjabi Bagh, 2A/DG2 Vikaspuri-II, B-98 Kirti Nagar, 9/50 Kirti Nagar, X-5 Kirti Nagar and B-2/133 Janakpuri. These entries might have been left out due to over burden of work."

It is also pertinent to note that during cross-examination of PW1 Moti Lal in the present case, the counsel for accused also pointed out the missing entries in the file movement register and the action taken report which were admitted by PW1 Moti Lal to have been missed by him due to overload of work. In the aforesaid context, cross-examination of PW1 Moti Lal dated 01.02.12 on page no.9 may be noticed:

"It is correct that the entries mentioned in demolition register Ex.PW2/D for 09.10.02 pertaining to property no.

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

23, Punjabi Bagh for 17.10.02 (pertaining to property No.C-40 Kirti Nagar) is not entered in the movement register Ex.PW3/D (exhibited in CC No.93/11). It is correct that in spite of the aforesaid missing entries in the movement register, the demolition is shown to have been carried and as such the demolition register could have been obtained without the corresponding entries in the movement register. (Vol. The said entries may have been missed due to overload of work)." He also admitted on page 10 of the cross-examination dated 01.02.12 to the effect "It is correct that entry dated 26.11.2002 pertaining to property no. C-3/396, Janak Puri in the demolition register is not mentioned in the Action Taken Report for the month of November, 2002. It is also correct that entry dated 25.11.02 pertaining to property no. C-5C-19 Janak Puri, C-5C-36A, Janak Puri and C-3/375, Janak Puri in the demolition register is not mentioned in the action taken report for the month of November, 2002. There is a possibility that there may be further entries in the demolition register which may not have been mentioned in the action taken report. I cannot say in case the said entries may be numbering about 150 over a period of 6 months."

As such, it cannot be ruled out that the entries may be missed in the monthly 'action taken report' by OI(B) and the same may not be conclusive to infer that the entry dated 26.08.02 is forged and the demolition action had not been carried by the JE.

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

16. Ld. PP for CBI has next contended that since the 'demolition charges' were not raised in respect of the property in question and claimed from the owner, the entry for partial demolition action was forged.

The contention has been vehemently opposed by counsel for accused Ajay Kumar Shrotriya and it has been pointed out that it is the job of OI(B) to prepare the letter of demand/bill for the demolition charges as per the entries in UC file or in the demolition register and thereafter the said letter/bill is sent to the owner/builder under the signatures of AE. It is also contended by counsel for accused that JE has in fact no role to play in recovery of said charges.

To assess the aforesaid contention, it may be noticed that PW15 Shri Brij Pal Singh, the then AE stated in cross-examination dated 30.04.12 (page 3 and 4 ) to the effect:

"The demolition charges are to be claimed by the OI(B) and the necessary documentations is also to be made by him for aforesaid purpose. The said charges are forwarded to the House Tax Deptt for recovery from the concerned Assessee. It is not the duty of JE to claim the demolition charges."

PW16 Shri J.S. Yadav, AE in aforesaid context also clarified during cross-examination that for minor demolitions, the demolition charges are not normally raised.

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

It was also admitted by PW18 Insp. N. Mahato (IO) in his cross-examination dated 20.09.12 page 22 that "the demolition charges in respect of action taken by MCD are required to be collected by AE and not by the JE." In the aforesaid context, it may also be noticed that since the posting of Ajay Kumar Shrotriya, JE was till 02.09.02 the further action in this regard, if any, could be only taken by the succeeding JE or the AE and merely on this ground it cannot be inferred that the entry dated 26.08.02 carrying partial demolition action had been forged.

17. Ld. PP for CBI has next relied upon report prepared by CPWD on inspection of property in 2007/08 and contended that unauthorized construction reflected in the report leads to inference that the demolition action had not been carried on 26.08.02.

On the other hand, learned counsel for accused Ajay Kumar Shrotriya has pointed out that merely on the basis of construction reflected in the CPWD report made in the year 2008 after registration of FIR by CBI, it cannot be ruled out that the property may have been renovated or repaired after the said partial demolition action carried on 26.08.02. It is further submitted that Ajay Kumar Shrotriya could not have taken any further action if the repairs had been carried after his transfer from the ward on 02.09.02..

At the outset, it may be noticed that the report (Ex.PW2/A) prepared by CPWD reflecting the existing construction in 2007/08 CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

does not specify the period during which the construction may have been carried out in the different portions of the property. It is pertinent to observe that the property vested in favour of Krishna Pahwa who is a widow lady after death of her husband and the share in the property was also relinquished in her favour by way of relinquishment deed by other legal heirs/co-owners of the property. The fact that the property was old and some of the shops on the ground floor were tenanted for over 30-35 years is clearly reflected from the testimony of witnesses examined by prosecution and the property also appears to have been renovated from time to time. The exact extent/area of unauthorized construction carried at the time of booking of FIR by MCD and the construction existing earlier has not been specified in the FIR. The period of construction of various portions has also not come up in CPWD report. As such, it is difficult to pinpoint the exact area of unauthorized construction which came up on the date of booking of FIR by MCD in 2002. In the aforesaid context, PW18 Inspector N. Mahato in his cross-examination dated 20.09.12 on page 5 stated that he did not try to ascertain if the property may have been renovated/repaired after the part demolition. It cannot be ruled out that unauthorized construction removed by way of partial demolition action taken by Ajay Kumar Shrotriya on 26.08.02 may have been repaired by the owner/builder of the property. In the facts and circumstances, it cannot be concluded on the basis of CPWD report prepared in 2008 that the entry dated 26.08.02 had been forged by Ajay Kumar Shrotriya.

18. Learned PP for CBI has also vehemently contended that there CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

is sufficient evidence to infer conspiracy since the accused Ajay Kumar Shrotriya, JE had forged the entry dated 26.08.02 to benefit the owner/builder.

To assess the aforesaid contention, it may be outrightly noticed that there is absolutely no evidence on record to show meeting of accused during the relevant period or passing of gratification. PW18 Inspector N. Mahato during his cross- examination dated 20.09.12 stated that the owners of the property had informed him that Ajay Shrotriya had not met them during 2002/03. The inference as to conspiracy is merely drawn since the owner/builder of the property may be benefited, even in the absence of any corroboratory evidence of conspiracy. The same is clear from the fact as PW18 admitted in his cross-examination dated 20.09.12 on page 14 that there was no direct evidence of conspiracy but the same was inferred since the owner/builder were the beneficiary. The inference as to conspiracy has been drawn merely on the presumption that the entry dated 26.08.02 had been falsely introduced which itself has not been proved beyond reasonable doubt.

For the purpose of offence of conspiracy, the evidence should clearly reflect the meeting of the minds between the accused for achieving the intended object which is completely missing in this case. It is also imperative to notice that by merely making entry dated 26.08.02 the property of the owner/ builder could not have been saved from further demolition action. The CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

action for further complete demolition action lay on the shoulders of succeeding officers (JE/AE) under the supervision of other senior officers in hierarchy after transfer of Ajay Kumar Shrotriya on 02.09.02.

It may also be observed that the stand taken by accused Krishna Pahwa that the notices u/s 344/343 DMC Act had not been received and demolition had not been carried does not automatically lead to inference that proceedings had been fabricated since even as per MCD record and stand of investigating agency the issuance of notices u/s 344 /343 DMC Act duly stands proved on record. So far as the carrying of demolition action is concerned, it has not been proved that partial demolition action was not undertaken by Ajay Kumar Shrotriya or the simple puncturing reflected in the entry dated 26.08.02 in demolition register was not feasible. Also, it cannot be ruled out as contended on behalf of accused Ajay Kumar Shrotriya that the aforesaid stand may have been taken by accused Krishna Pahwa to protect her interest and prevent further demolition of property under provisions of DMC Act, 1957.

I am, therefore, of the considered view that the circumstances relied by prosecution do not establish beyond reasonable doubt if the entry dated 26.08.02 had been made by Ajay Kumar Shrotriya, JE in conspiracy with co-accused.

19. The prosecution has also placed reliance upon statements of PW6 Shri Moti Ram, PW7 Shri Prem Nath, PW8 Shri Baldev Raj, PW9 CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

Shri Subhash Chand Thapar and PW12 Shri Girdhari Lal to contend that the demolition action had not been carried out by the accused Ajay Kumar Shrotriya as per entry dated 26.08.02.

The statement of aforesaid witnesses may be briefly adverted to in order to assess if the inference can be drawn in the light of their testimony that the entry dated 26.08.02 had been forged by Ajay Kumar Shrotriya. This also needs to be appreciated in the background that the conspiracy has not been proved beyond reasonable doubt.

PW12 Shri Girdhari Lal deposed that the property in question was in the name of his father Kanshi Ram measuring about 496 Sq. yards and after his demise the property was bequeathed to him alongwith his brothers. Further, he got 128 sq. yards as share in the property and other two portions of the plot were in possession of his other brothers and the fourth portion falling in the share of his brother Brij Lal had been sold to one Bharat Bhushan in 1980. He also stated that the portion in his possession is a single sotrey house alongwith a store on first floor and the other two portions of the plot which are in possession of his other brothers has a construction upto ground plus three floors and the fourth portion has a construction of ground plus two floors. He further stated that he did not receive any notice from MCD regarding unauthorized construction raised in the property or for demolition of the same. During cross-examination he clarified that he cannot say whether any notice u/s 343 or 344 of DMC Act was served upon occupants or residents of other portions of the property which fell in share of his brothers.

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

A bare perusal of statement of aforesaid witness reveals that this witness merely deposed that the different portions of the original plot were in possession of four brothers after death of his father Shri Kanshi Ram and he could not say in case any notice u/s 343 or 344 DMC Act was served upon Krishna Pahwa. Since he was neither the owner nor the builder of the property in question in possession of Krishna Pahwa, he was not aware of proceedings, if any, taken by MCD. The testimony of witness does not further the case of forgery of entry dated 26.08.02 in any manner.

It may further be observed that PW6 Shri Moti Ram, PW7 Shri Prem Nath, PW8 Shri Baldev Raj, PW9 Shri Subhash Chand Thapar were the occupants/tenants of the shops on the ground floor of the property. The fact that the shops were old and tenanted has clearly come out in the testimony of witnesses. It has also come up during cross-examination of PW6 that the roof of the shop had been raised in view of the raising of road level and first and second floor in the premises were raised after the level of the roof of the shop was increased. This witness (PW6) admitted that the shop had been purchased in 1999 vide Agreement to Sell (Mark PW6/A). In case any unauthorized construction in the said shop in his possession was raised and the shop was not demolished, the witness was liable to be arrayed as an accused for conspiracy in respect of the portion in his possession and Krishna Pahwa could not be made liable for the same. Similar is the situation in respect of testimony of PW7 Shri Pram Nath who also admitted having raised the height of the roof of the shop CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

after the fresh lanter was raised. Both these witnesses further deposed only with respect to service of notices or taking of demolition action in respect of their shop. PW7 Shri Prem Nath also stated during cross-examination that he was not aware in case any notice was issued to the owner of the first floor or the second floor or if any demolition action had been taken therein. Similarly, PW9 Shri Subhash Chand Thapar who purchased the shop in his possession from Krishna Pahwa in 2002 clarified that he was not aware if any notice was received by owner Krishna Pahwa from MCD.

It needs to be noticed that the construction at ground floor stands reflected even in the FIR Ex.PW1/ A as well as some renovation is also indicated in the shops in possession of some of the tenants. The action reflected in entry dated 26.08.02 is with reference to puncturing of hall at second floor and removal of shutter at ground floor without specifying the portion of the said shop. It cannot be ruled out that the said action may have been taken in the portion which was not in possession of the tenants. At the same time, it is also equally possible that if the action had been taken in respect of the some portion of the shop in possession of one of the tenants, he may be disputing the same as the repair could not have been carried after partial demolition action. The statement of PW7 Shri Prem Nath also reflects that the testimony is only with reference to the shop in his possession and he categorically stated that he was unaware of the proceedings taken by MCD as to the remaining part of the building. Similarly, PW8 Baldev Singh also stated in respect of the notice and demolition action in respect of the shop in his possession. The CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

testimony of the witnesses does not lead to an inference beyond reasonable doubt that the entry dated 26.08.02 had been forged by Ajay Kumar Shrotriya.

20. I am also constrained to point out that the investigating agency at its whims and fancies carried the investigation to only fix Ajay Kumar Shrotriya ignoring the role of any other JE posted prior to or after Ajay Kumar Shrotriya in the concerned ward and a clean chit has been given to the AE,EE,SE and DC without bothering to investigate their role.

The premier investigating agency (CBI) was expected to thoroughly investigate the case since the FIR was registered by CBI and the investigation commenced on the directions issued by the Hon'ble High Court in WP (C) No.4582/2003 to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. However, the investigation has merely been confined to role of Ajay Kumar Shrotriya who was on deputation from DDA to MCD from 06.05.02 to 30.09.03 ignoring the role of other officers who appear to be also equally responsible for ensuing complete demolition action in the properties in question. The number of cases involving unauthorized construction and failure to take requisite action is far larger but investigation has been simply confined by the investigating agency to 15 cases pertaining to Ajay Kumar Shrotriya.

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

The dumping of the files by succeeding JE/AE/EE without initiating further necessary action in accordance with law leads to the only inference that the same was either in collusion or the role of subordinate officers was deliberately ignored.

21. For the foregoing reasons, the prosecution has failed to bring home the charge against both the accused beyond reasonable doubt. Both the accused are accordingly acquitted of all the charges.

Announced in the                         (Anoop Kumar Mendiratta)
open Court on                           Special Judge (PC Act) CBI-08
16th May, 2012                           Central District, THC, Delhi.

CC No.114/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

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Cc No.114/11 (Rc No.01/2007) -Cbi vs . Ajay Kumar Shrotriya & Anr. on 16 May, 2013