Delhi District Court
Ganju Vs. Cbi, Crl. M.C. No. 3011/2011 ... vs . on 10 September, 2015
IN THE COURT OF SHRI SANJEEV JAIN: SPECIAL JUDGE
(PC ACT), CBI03, SOUTH DISTRICT, SAKET COURT,
NEW DELHI
CC No. 10/2012
RC No. 41(A)/2000/CBI/ACB/N.D
UID No. 02401R0220772001
U/s 120B r/w Section 13 (2) r.w. 13 (1) (d) of
The Prevention of Corruption Act, 1988
Central Bureau of Investigation
Versus
(A1) Sh. B.R. Malhotra
s/o late Sh. R.P. Malhotra
Assistant Engineer
Planning Department, MCD,
Town Hall, Delhi.
(A2) Sh. Naresh Kumar Sharma
s/o Sh. R.K. Sharma
Junior Engineer,
Building Department, MCD,
South Zone, New Delhi.
(A3) Sh. Raj Singh Gehlot
s/o late Sh. Nihal Singh
r/o 14, Green Park Extension,
New Delhi.
(A4) Sh. A.K. Ganju
RC No. 41(A)/2000/CBI/ACB/N.D 1/24
s/o Sh. T.N. Ganju
r/o S149, Greater KailashII,
New Delhi.
(A2, A3 and A4 were discharged by
the order of Hon'ble High Court of
Delhi vide order dated 22.11.2013)
Date of FIR : 24.08.2000
Date of filing of Chargesheet : 07.09.2001
Arguments heard on : 28.08.2015
Date of judgment : 10.09.2015
Appearance:
For prosecution : Sh. Deep Srivastava, Ld. PP for CBI
For accused : Sh. Manish Vashist, advocate for accused
B.R. Malhotra.
JUDGMENT
BRIEF FACTS OF PROSECUTION CASE
1. Chargesheet was filed by CBI against B.R. Malhotra (A1), Naresh Kumar Sharma (A2), Raj Singh Gehlot (A3) and A.K. Ganju (A4) (hereinafter referred as A1, A2, A3 and A4 respectively and /or by name).
1.1 Briefly, it is disclosed in the report under Section 173 Cr.P.C that the above mentioned case was registered by the CBI on RC No. 41(A)/2000/CBI/ACB/N.D 2/24 24.08.2000 on the allegations that seven engineers of MCD, Building Department, South Zone, entered into a criminal conspiracy with the owner, builder and architect of building no. E39, Paschim Marg, Vasant Vihar and in pursuance of the same, the MCD engineers allowed illegal construction in the said building during the year 199192, which was gross violation of the building byelaws. The said engineers dishonestly omitted to check the illegal construction and caused undue pecuniary advantage to the builder by allowing them to make excess coverage in violation of the sanctioned plan. 1.2 As per the facts disclosed in the chargesheet, in the year 1968, DDA allotted plot no. E39, Pashchim Marg, Vasant Vihar to Mr. B.R. Shori and Mrs. Kamala Shori who sold the said plot to Sh. Raj Singh Gehlot in 1989 vide a registered Sale agreement and a registered GPA in the name of Mrs. Sheela Gehlot W/O Sh. Raj Singh Gehlot. On 31.07.1989, an application was moved in the DDA under the purported signature of Sh. B.R. Shori seeking permission for construction of a new 2½ storied building in the said plot. On 24.11.1989, DDA sanctioned the proposed building plan, which was prepared by the registered architect Sh. A.K. Ganju. Subsequently, Vasant Vihar area was denotified by the DDA and handed over to the MCD.
RC No. 41(A)/2000/CBI/ACB/N.D 3/24 1.3 It is case of the prosecution that Raj Singh Gehlot
(accused No. 3) builder, started construction in the said plot after demolishing the existing old building, which was supervised by A.K. Ganju, Architect (accused no. 4). The construction in the said plot was started in January, 1991 as per the building watch register of MCD, House Tax Department. The 'C' form for having covered the outer sewer line was issued on 18.05.1991 by the then JE Sh. B.S. Yadav, after approval by competent authority. An application for issuance of completion certificate was submitted on 04.11.1991 by builder Sh. Raj Singh under the purported signature of Mr. and Mrs. B.R. Shori alongwith the completion drawings and stability certificate prepared and signed by architect Sh. A.K. Ganju. Sh.Naresh Kumar inspected the building on 26.11.1991 and prepared the NOC report wherein the measurements were recorded and compounding fee of Rs. 255603/ was calculated for the compoundable deviations from the original sanctioned plan. On the basis of said NOC, the then Zonal Engineer B.R. Malhotra (accused no.1) inspected the building and recommended for the issuance of completion certificate (in short "CC"), which was approved by the then ADC South Zone. Accordingly, completion certificate was issued on 19.12.1991 duly signed by JE Naresh Sharma RC No. 41(A)/2000/CBI/ACB/N.D 4/24 and ZE B.R. Malhotra.
1.4 Further, it is case of prosecution that records of House Tax Department, MCD revealed that the construction was completed in February, 1992 and the building was assessed for house tax on 22.02.1992 wherein the total covered area was recorded as 2625 sq. feet each at the ground, 1st, 2nd and 3rd floor. It is alleged that Raj Singh Gehlot had sold the dwelling units and the basement portions during 199293 to different parties by executing sale agreements and GPAs. The building was booked for unauthorized construction on 12.02.1997 by the then JE Sh. Sushil Kumar and show cause notices were issued. On 27.02.1997, the demolition orders were passed by the competent authority and some servant quarters at the terrace floor were demolished on 09.06.1997.
1.5 It is further case of prosecution that building no. E39, Paschim Marg, Vasant Vihar was got measured and technically evaluated by an expert committed. The said committee reported that there was non compoundable excess coverage in the building measuring 7594.4 sq. feet, which was totally illegal and in violation of the sanctioned plan. Technical report further revealed that IVth and Vth floor in the building was totally unauthorized and illegal besides RC No. 41(A)/2000/CBI/ACB/N.D 5/24 the existence of noncompoundable set backs of (6'7"), illegal projections, misutilization of basement and a non compoundable FAR of 87.67. Thus, this report makes it clear that the builder Sh. Raj Singh Gehlot with the active connivance of the architect A.K. Ganju had made an illegal coverage of 7594 sq. feet in the building and B.R. Malhotra, ZE and Naresh Sharma JE willfully and dishonestly omitted to check the faulty completion plan submitted by the architect A.K. Ganju, failed to inspect the building properly and facilitated to issue the completion certificate by concealing the excess coverage area and other violations. The investigating officer had also collected the evidence of the MCD experts and an independent architect which proves that the building is a monolithic structure and at the time of issuing completion certificate there was certain infringements and excess coverage. 1.6 It is concluded in the chargesheet that accused B.R. Malhotra, the then ZE and Naresh Sharma, the then JE, both of MCD building department had entered into a criminal conspiracy with the builder Raj Singh Gehlot and architect A.K. Ganju and in pursuance of the said criminal conspiracy, the said public servants abused their official position and caused pecuniary advantage to the builder Raj Singh. The sanction to prosecute the said public servants B.R. RC No. 41(A)/2000/CBI/ACB/N.D 6/24 Malhotra and Naresh Sharma was granted by the competent authority. 1.7 In substance, it is alleged that from the facts and circumstances of the case, commission of offence by accused persons u/s 120 (B) r/w section 13 (1) (d) and 13(2) of Prevention of Corruption Act, 1988 (in short "P.C Act") has been disclosed. 2 After filing of chargesheet on 07.09.2001, copies were supplied to accused persons in accordance with section 207 Cr.PC. After hearing arguments, order on charge was passed on 21.05.2011 and the charges were framed on 31.05.2011 against all four accused for the offences u/s 120B of IPC r/w section 13(2) r/w Section 13(1)(d) and U/S 13(2) r/w Section 13(1)(d) of The P.C. Act against A1 and A2. All the accused pleaded not guilty and claimed trial. 3 The proceedings against A2 Naresh Kumar, A3 Raj Singh Gehlot and A4 A.K. Ganju was dropped in view of common judgment of Hon'ble High Court dated 22nd November, 2013 passed in Crl. MC No. 2384/2011 and Crl. MA No. 8693/2011 titled as A.K. Ganju vs. CBI, Crl. M.C. No. 3011/2011 titled as Naresh Sharma vs. CBI and Crl. M.C. No. 3800/2011 and Crl. M.A. No. 18063/2011 titled as R.S. Gehlot vs. CBI. A2, A3 and A4 were discharged by order of Hon'ble High Court (in short at some places referred as "judgment RC No. 41(A)/2000/CBI/ACB/N.D 7/24 dated 22.11.2013 by Hon'ble High Court")
4. In order to prove its case, prosecution has examined as many as 15 witnesses. The gist of the statements of witnesses is as follows: 4.1 PW1 Smt. Indu Bala stated that she met Raj Singh Gehlot in 1992 as her husband had decided to purchase flat no. 39, Vasant Vihar, Paschimi Marg, New Delhi. They purchased the said flat in June, 1992 for consideration of Rs. 17 lacs. She further deposed that GPA was executed in her favour alongwith her husband Gajbeer Singh. The condition of the flat so far as construction is concerned was the same when she moved in the flat in December, 1992 till the date of her statement recorded by CBI.
4.2 PW2 Sh. Rohit Shori stated that plot no. 39, Vasant Vihar, Paschimi Marg, New Delhi was allotted by DDA to his father late Sh. Balram Shori and his mother late Smt. Kamla Shori who sold the same to Sh. Raj Singh Gehlot in the middle of 1989. This witness has proved form of notice of completion PW2/1; appendix A for application to erect, reerect or to make material alteration in any place of building PW2/2; Deed executed on 02.08.1989 Ex.PW2/3; affidavit dt. 02.08.1989 Ex.PW2/4; undertaking of his father Ex.PW2/5; another RC No. 41(A)/2000/CBI/ACB/N.D 8/24 affidavit of his father dt. 02.08.1989 Ex.PW2/6; affidavit of his mother dt. 02.08.1989 Ex.PW2/7, another affidavit of his mother dt. 02.08.1989 Ex.PW2/8 and undertaking of his mother dt. 02.08.1989 Ex.PW2/9. 4.3 PW3 Sh. Satender Pal Aggarwal deposed that after applying his mind, he had accorded sanction Ex.PW3/1 for prosecution of B.R. Malhotra and Naresh Kumar Sharma. He further stated that he was competent to appoint B.R. Malhotra and Naresh Kumar Sharma and also competent to remove them from service.
4.4 PW4 Sh. Mehtabuddin Khan deposed that on the request of Sh. Nirbhay Kumar, the then Dy. SP/CBI, on 08.11.2000 he handed over some documents from the records of MCD for the purpose of investigation and the said documents were seized vide seizure memo dated 08.11.2000 Ex.PW4/A. 4.5 PW5 Sh. Harmohinder Singh proved list D13 Ex.PW5/A. 4.6 PW6 Sh. Rakesh Gupta deposed that the property no. 39, Paschimi Marg, Vasant Vihar, New Delhi was sold by Sh. B.R. Shori to Sh. Raj Singh Gehlot and he acted as a broker in the said deal. 4.7 PW7 Sh. Santosh Kumar deposed that in the y ear 199192 he was posted as UDC in House Tax Department, MCD in South Zone. This witness has proved (D8) building watch register for the period RC No. 41(A)/2000/CBI/ACB/N.D 9/24 199192 Ex.PW7/A and another register (D8) Ex.PW7/B. 4.8 PW8 Sh. Gyan Chand Chopra stated that he was posted as UDC in the office of Sub Registrar III, Asaf Ali Road, New Delhi in the year 200001. This witness has proved D6 General Power of Attorney executed by Sh. B.R. Shore in favour of Smt. Sheela Gehlot Ex.PW8/A and agreement to Sell Ex.PW8/B. 4.9 PW9 Sh. Man Mohan Dass stated that in the year 2001, team was constituted to visit at property no. E39, Paschimi Marg, Vasant Vihar, New Delhi and after inspection of the site, they prepared the report and submitted the same to Sh. P. Balachandran Inspector, CBI. Further, this witness has proved (D1, page 1) forwarding letter dt. 16.05.2001 written by him to Sh. P. Balachandran, Inspector CBI Ex.PW9/A; annexures running from internal page 2 to 8 of D1 Ex.PW9/B and site plan Ex.PW9/C. 4.10 PW11 Sh. R.M.Lal stated that he was posted as Dy. Director (Building Section) in Delhi Development Authority (DDA), Vikas Sadan, INA, New Delhi in the year 1989. As per the established norms, the building plans for residential building upto the plots of 250 sq. mtr were being passed by him and plots above 250 sq. mtrs were being dealth with by the Joint Director. PW10 proved file D2 related RC No. 41(A)/2000/CBI/ACB/N.D 10/24 to the revised sanction building plans of property no. E39, Pashchimi Marg, Vasant Vihar, New Delhi Ex.PW10/A and Note 6N dt. 24.11.1989 Ex.PW10/A1.
4.11 PW11 Sh. Ravi Dayal deposed that he was an architect by profession and on the requestof Sh. Sanjeev Sharan, he firstly make plans of interior decoration for the basement of his office at E39, Paschimi Marg, Vaant Vihar, New Delhi. He further deposed that at the request of Sh. Sanjeev Sharan, he prepared the drawings of existing building at the site. This witness has proved drawing (D11) Ex.PW11/A; completion plan Ex.PW11/B; drawing of ground floor Ex.PW11/C and letter addressed to Vice Chairman Ex.PW11/D. 4.12 PW12 Sh. Rafiq Ahmed proved Cform dt. 20.02.1991 Ex.PW12/A; noting Ex.PW12/B; query of ADC Ex.PW12/C; noting to ADC Ex.PW12/D; noting dt. 08.05.1991 Ex.PW12/E; completion certificate Ex.PW12/F; relevant nothing bearing signature of Sh. S.P. Marwah, ADC Ex.PW12/G and file D3 pertaining to South Zone, MCD Ex.PW12/H. 4.13 PW13 Sh. Arun Kumar deposed that he was posted as ZE (Building), South Zone, MCD, Delhi and the matter pertaining to issuance of C form in respect of property bearing no. E39, Paschimi RC No. 41(A)/2000/CBI/ACB/N.D 11/24 Marg, Vasant Vihar, New Delhi was dealt by him in the capacity of ZE. Further, he proved file D4 pertaining to C form Ex.PW13/A. 4.14 PW14 Ms.Jyoti Motihar deposed that in the year 1989, she had booked a flat on the ground floor (right side front) at E39, Paschimi Marg, Vasant Vihar, New Delhi with builder Raj Singh Gehlot and got the possession of the said flat from him in February, 1992 after paying the total price of Rs. 22 lacs to Sh. Raj Singh Gehlot (in installments) and executed sale documents. PW14 further deposed that after receiving demolition notice from MCD, she came to know that there was excess coverage area in the construction of the building where her flat was located and later on she compounded the same by paying penalty to MCD. Further, she proved D9 (internal pages 12 to
16) i.e. application to MCD alongwith affidavit and letter of architect Ex.PW14/A. 4.15 PW15 Sh. P. Balachandran deposed that the FIR Ex.PW15/A was assigned by then then SP Sh. R.P. Aggarwal and investigation of this case was entrusted to him on 01.12.2000. During investigation, he examined the witnesses and recorded their statement U/S 161 Cr.P.C. An expert committee was constituted by MCD to look into the technical aspects of the case and he had collected their report RC No. 41(A)/2000/CBI/ACB/N.D 12/24 as well as examined the concerned officers. He stated that Ex.PW9/B is report of technical committee and Ex.PW9/A is the forwarding letter addressed to him. After completion of investigation, PW15 filed the chargesheet in the Court.
STATEMENT OF ACCUSED 5 After prosecution evidence, statement of accused B.R. Malhotra was recorded u/s 313Cr.PC. Accused denied the incriminating evidence stating that he did not enter into any criminal conspiracy with any person; that he did not take any bribe or pecuniary advantage or any other favour from any individual; that on inspection, he found certain compoundable deviations; that he forwarded the completion certificate for its approval and grant to his superior Sh. S.P. Marwah, the then ADC, who after satisfying himself signed the completion certificate; and if any further deviation/violation was made in the building after issuance of completion certificate or after his tenure, he is not responsible. Accused B.R. Malhotra did not opt to lead any evidence in his defence.
6 I have heard the Ld. Sr.PP for CBI and Ld. Defence counsel for accused B.R Malhotra. I have carefully gone through the testimony of witnesses and documents proved on record. I have also RC No. 41(A)/2000/CBI/ACB/N.D 13/24 considered the written submissions filed by Ld. PP and ld.defence counsel and the arguments advanced at bar.
7 Ld. PP submitted that as per evidence on record, the plot in question was owned by B.R Shori and Kamla Shori who were the original allottee and they sell the same to Sh. Raj Singh Gehlot vide GP and agreement to sell dated 06.11.89 which was also violation of section 6 (a) of Perpetual Sub Lease of Delhi Administration, Land and building department because it is mentioned that "sub lessee shall not sell, transfer, assign or otherwise part with possession of whole or any part of the plot in any form or manner, benami or otherwise to a person who is not member of the lessee". Ld. PP further argued that "C form" was applied in the name of Sh. B.R Shori and Kamla Shori and thereafter application dated 04.11.91 for completion certificate was also moved on behalf of Sh. B.R Shori and Kamla Shori which was considered by accused B.R Malhotra for recommending issuance of completion certificate. The completion certificate was issued in the name of B.R Shori and Kamla Shori instead of name of builder and the compounding amount Rs.2,55,603/ was also deposited in the name of same persons. Further, Ld. PP submitted that excess coverage area was much more which is reflected from the evidence as RC No. 41(A)/2000/CBI/ACB/N.D 14/24 well as in report of Sh. M.M Dass and the statements of PW Indu Bala, PW Ravi Dayal and PW Jyoti Motihar and drawing prepared by Sh. Ravi Dayal. Excess coverage area could not be constructed after completion certificate as entire construction was monolithic construction with no scope of extension. Ld. PP pointed out that as per statement of PW Indu Bala and PW Jyoti Motihar after shifting in their respective flat they did not make any additional construction which proves that unauthorize construction was already there at the time of issuance of completion certificate. Ld. PP also argued that as per evidence of PW7 Santosh Kumar and building watch register proved by him, the additions and alterations at ground floor, first floor and second floor had started which is reflected in entries Ex.PW7/A and Ex.PW7/B dated 16.01.91 and at that time accused B.R Malhotra was working as A.E, South Zone, MCD, New Delhi. As per evidence, compounding was allowed in the name of B.R Shori and Kamla Shori on 19.12.91 and not in the name of actual owner R.S Gehlot which reflected that the compounding was allowed by abusing his official position by accused B.R Malhotra. As per record of house tax department, construction was completed in 1992 and building was assessed for house tax on 26.02.92 which has shown excess RC No. 41(A)/2000/CBI/ACB/N.D 15/24 unauthorize construction and said building was registered with house tax department after due verification. In his arguments, Ld. PP submitted that the purpose of section 13 (1) (d) under Prevention of Corruption Act is to curtail corruption and court may interpretate provisions accordingly with a view to curtail the corruption. Ld. PP relied on M. Narayana Nambiar Vs. State of Kerla AIR 1961 page 1116 . Ld. PP further argued that court may rely even on the single testimony of witness and principle of "Uno falsus in omnibus" does not apply to the criminal trials. Ld. PP submitted that keeping in view entire evidence on record, prosecution has been able to prove its case against accused B.R Malhotra u/s 13 (1) (d) of P.C Act, 1988. 8 Ld. Defence counsel submitted that out of four accused, the proceedings against three accused has already been quashed by the order of Hon'ble High Court. In view of the findings of Hon'ble High Court vide judgment dated 22.11.2013, prosecution has not been able to establish essential ingredients of criminal conspiracy u/s 120 B IPC between accused persons and the ingredients of offence u/s 13 (1)(d) r.w section 13 (2) of P.C Act. Ld. defence counsel further submitted that testimony of PW4 and PW14 makes it clear that they occupied their respective flat in the building in question after a considerable RC No. 41(A)/2000/CBI/ACB/N.D 16/24 period of issuance of completion certificate. Ld. Defence counsel submitted that there is no reliable evidence on record to establish that unauthorize construction alleged by prosecution was in existence at the time of issuance of completion certificate on 19.12.91. Ld. defence counsel contended that there is no evidence on record to establish that unauthorize construction alleged by prosecution could not be raised after issuance of completion certificate and same findings have also been given by the Hon'ble High Court in its judgment dated 22.11.2013 while discharging three accused of this case. Ld. defence counsel argued that completion certificate was approved by the then ADC, Sh. Marwah who was senior authority of accused; building watch register (D8) which is subsequent to the issue of CC does not establish whether 4th and 5th floor was in existence either at the time of issue of CC or immediately thereafter. Ld. defence counsel submitted that IO has clearly admitted that no evidence was found to show acceptance of any bribe or financial benefit by accused. Ld. defence counsel also argued that in view of the findings given by Hon'ble High Court in judgment dated 22.11.2013 while quashing proceedings of FIR in this case against three accused persons and the evidence on record, prosecution has miserably failed to establish essential ingredients u/s RC No. 41(A)/2000/CBI/ACB/N.D 17/24 13 (1) (d) r.w. Section 13 (2) of P.C Act, 1988 against accused. 9 The Hon'ble High Court was pleased to quash the FIR, chargesheet and the charges against three accused persons of this case vide its common judgment dated 22.11.2013. The relevant portions of said judgment are reproduced here below:
"114. As regards the charge under section 13 (1)
(d) of the PC Act, the violator should have obtained a valuable thing or pecuniary advantage for himself or for any other person. In the present case, in chargesheet, there are no allegations of any kind, whatsoever, of any demand, acceptance or giving of any bribe by anybody to anyone. For such an offence, the prosecution has to establish that the accused has obtained the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of statutory presumption available to him. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13 (1) (d) of the PC Act cannot be held to be established.
115. In the case of Subhash Parbat Sonvane RC No. 41(A)/2000/CBI/ACB/N.D 18/24 (supra), it is held that in Sections 7 and 13 (1) (a) and (b) of the Act the Legislature has specifically used the words 'accepts' or 'obtains'. As against this there is departure in the language used in Clause (1) (d) of Section 13 and it has omitted the word 'accepts' and has emphasized the word 'obtains'. The ingredient of Subclause (i) is that by corrupt or illegal means, a public servant obtains any valuable thing or pecuniary advantage; under Clause (ii) he obtains such thing by abusing his position as public servant and Subclause (iii) contemplates that while holding office as the public servant he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person under Section 13 (1)
(d), there must be evidence on record that accused obtained for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing of pecuniary advantage without any public interest.
116. Case of the CBI is that there was conspiracy between the Builder, Architect and the officers of the MCD. However, there is no statement of any witness which refers to or which allege that there RC No. 41(A)/2000/CBI/ACB/N.D 19/24 as active collusion and conspiracy between the aforementioned persons. To constitute an offence of conspiracy, meeting of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition that existence of conspiracy is to be deducted from the circumstances and each circumstances should be established by reliable evidence and the circumstances must form a chain of events from which the only irresistible conclusion would be against those persons. The criminal conspiracy is an independent offence in the Indian Penal Code. The unlawful agreement is a sinequanon for constituting an offence under the Indian Penal code and not an accomplishment. In the case in hand, there is nothing to connect the petitioners inter se and there are no allegations which could form a chain of any conspiracy.
10 In above mentioned judgment Hon'ble High Court in para 95 to 98 discussed the important aspect of payment of compounding fee and record of house tax department which was also being relied by the prosecution and proved as Ex.PW7/B (D8). In para no.98 of said judgment Hon'ble High Court clearly held that :
98. Admittedly, the aforesaid building was RC No. 41(A)/2000/CBI/ACB/N.D 20/24 booked for unauthorized construction on 12.02.1997 by the then JE Sh. Sushil Kumar and showcause notices were issued. On 27.02.1997, the demolition orders were passed by the competent authority and pursuant thereto some servant quarters in terrace floor were demolished on 09.06.1997.
Therefore, it is established that whatever unauthorized and noncompoundable construction existed in the building in question, was demolished much prior to the case registered by the CBI. However, if any illegal construction was made thereafter and noted by the CBI, for that the petitioners cannot be held liable to suffer the consequences of the case.
11 In view of the judgment dated 22.11.2013 of Hon'ble High Court of Delhi on the petitions of three accused namely Sh. Naresh Kumar Sharma (A2), Sh. Raj Singh Gehlot (A3) and Sh. A.K. Ganju (A4), it is clear that charge of criminal conspiracy u/s 120 B IPC r.w. Section 13 (1) (d) r.w. Secton 13 (2) of P.C Act cannot be sustained only against accused B.R Malhotra after discharge of all other three co accused and the ingredients of offence u/s 13 (1) (d) r.w. Section 13 (2) RC No. 41(A)/2000/CBI/ACB/N.D 21/24 of P.C Act were also not made out against three petitioners. 12 The main question in this case is whether at the time of issuance of completion certificate on 19.12.91, the unauthorize construction alleged by prosecution was in existence or the unauthorize construction alleged by prosecution was raised after issuance of completion certificate on 19.12.91 ?
13 PW1 Smt. Indu Bala purchased the second floor flat in the building in question from Sh. Raj Singh Gehlot in June 1992 and moved to the said flat in December, 1992. She stated that she was not aware as to the construction existed in building about six months prior to the purchase of the said second floor flat or as on 19.12.91. 14 PW14 Ms. Jyoti Motihar pruchased a ground floor flat in the said building from Raj Singh Gehlot and took over the position of same in February 1992. PW14 in her cross examination stated that she does not remember whether she visited the ground floor flat in the building in question in December 1991 or January 1992 and possibly she was out of India in January 1992. From the testimony of PW1 and PW14, it is not established that the unauthorized construction alleged by the prosecution was in existence at the time of issuance of completion certificate on 19.12.91.
RC No. 41(A)/2000/CBI/ACB/N.D 22/24 15 PW7 Sh. Santosh Kumar proved document D8 Ex.PW7/B
which is building watch register of house tax department, MCD for the period 19901992. PW7 rather demolishes the case of CBI. Entry no. 69/159 at page 14 of the said register reflects the existence of ground floor, first floor and second floor only. Therefore, the fact that property did not have any third, fourth and fifth floor at that time is reflected from the said entry. In other words, this entry also reflect that further addition and alteration were being carried out after grant of CC on 19.12.91. PW7 also proved entry no.159 in document D8 which also reflect the number of floors. As per this entry, there is no variation on any floor which are mentioned in the said two entries. 16 One of the contention of Ld. PP was that it was monolithic construction on a structure of pillars and the additions and alterations could not be made after grant of CC. As far was the construction at third, fourth and fifth floor is concerned, the construction could be raised on same monolithic structure. As far as construction at first floor and ground floor is concerned, there is no convincing evidence on record to establish that the alleged unauthorize construction was raised either without help of the main structure/pillars or any additional pillars were constructed to support the said unauthorize construction.
RC No. 41(A)/2000/CBI/ACB/N.D 23/24 17 Keeping in view above discussion, in my opinion, there is
no convincing evidence on record to prove that alleged unauthorize construction was in existence at the time of issuance of completion certificate dated 19.12.91. Therefore, it cannot be accepted that accused B. R Malhotra entered into any criminal conspiracy or abused his official position by ignoring unauthorize construction to give pecuniary advantage to the coaccused.
18 Keeping in view the observations of Hon'ble High Court (in order dated 22.11.2013); testimony of witnesses; and the facts and circumstances of the case, in my view, prosecution has failed to prove the charges u/s 120 B IPC or section 13 (1) (d) r.w. Section 13 (2) of P.C Act 1988 against accused B.R Malhotra beyond reasonable doubt. Therefore, accused B.R Malhotra is acquitted. Personal bond and surety bond stands cancelled. He has already furnished personal bond and surety bond u/s 437 A Cr.PC alongwith his photograph. File be consigned to record room.
Announced in the open court (Sanjeev Jain) on this 10th September, 2015. Special Judge (PC Act), CBI03 South District, Saket Courts New Delhi RC No. 41(A)/2000/CBI/ACB/N.D 24/24