Delhi District Court
Cc No. 532260/2016 Cbi vs . M.B.Pahari & Ors. Page No. 1/47 on 4 November, 2016
IN THE COURT OF SH. SANJAY GARGI:
SPECIAL JUDGEIV, (PC ACT) CBI: DELHI
CC No. 532260/2016
ID No. 02401R023192001
Central Bureau of Investigation (CBI)
Versus
1. Malay Bikas Pahari (M. B. Pahari)
(Proceedings against him already stands
abated vide order dated 3.3.2014)
2. Chitra Pahari w/o Sh. M.B. Pahari,
R/o Q14, Andrews Ganj Extn.
New Delhi 110049. ....Accused
Case arising out of: FIR No. DAI1999A0040
Date of FIR : 12.08.1999
Date of Institution : 02.02.2001
Date of conclusion of Final
Arguments : 21.10.2016
Date of Judgment : 04.11.2016
(Case is more than 15 years old)
JUDGMENT
FACTS 1.0. The brief facts of the case are that on 11.08.1999, the residential premises of Shri M.B. Pahari (A1, since deceased) was searched in RC No. DAI1999A0038. He was found in possession of huge assets including cash and on that basis, this CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 1/47 separate RC was registered against him U/s. 13(2) r/w 13(1) (e) of PC Act on 12.08.1999 on the complaint of Shri Dilip Barik, DSP.
1.1. During investigation, it revealed that A1 was selected as Programme Executive through UPSC on 19.09.1975. Till October, 1981, he worked at Calcutta. He was promoted as Assistant Station Director, AIR at Tezu from November, 1984 to December, 1984. Thereafter, he worked as Station Director (OG) at AIR Stations Slicher, Kurseong and Gangtok from January, 1985 to September, 1985, October, 1985 to January, 1989 and February, 1989 to December, 1989 respectively. He worked as Station Director (SG) AIR, Calcutta from December, 1989 to July, 1992, as Director, Doordarshan Kendra, as Director, Doordarshan Kendra, Calcutta from July, 1992 to 03rd June, 1993. Thereafter, he was transferred from Calcutta to Doordarshan Kendra, Delhi vide order No. 33013/8/93B (A) dated 01.06.1993. As Director, Doordarshan Kendra, Delhi, A1 was head of the Department. He was promoted as Dy. Director General, Doordarshan Kendra, Delhi vide order No. 32013/10/96B (A) dated 25.03.1998. As DDG, he was also head of the Department.
1.2. For the purpose of computing income, expenditure and assets of A1, the check period has been taken as 04.06.1993 to 12.08.1999 i.e. the date of registration of this case. This check period coincides with his transfer from Calcutta and posting at Delhi as Director, DDK.
CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 2/47From the brief history of property returns submitted by him, it is seen that he was not holding much of the assets prior to his posting as Director, DDK Delhi. His assets started swelling up only after he joined as Director, DDK Delhi.
1.3. Smt. Chitra Pahari (A2), wife of A1 was an active abettor of the offence as most of the assets acquired in her name by A1. She has consciously executed the property documents, operated the Bank accounts and even obtained various payments from the parties, who were having business dealings with A1 towards the part cost of the properties acquired in her name. She has issued various cheques from A/c. No. 11304, Bank of India, Karol Bagh, which was operated by her as Proprietor of Chitra Associates towards payments to be made for different properties. These cheques are duly signed by A2 although, body of these cheques is mostly filled in by A1 himself. Various payments towards the purchase of these properties have been made by the persons/firms who were having official business dealings with A1.
1.4. The various facts, which came into light during investigation disclosed that A1 & A2 were in hand and glove with each other in acquiring various assets. A2 was not doing any business and there was no source of income to her but she by purchasing all the said properties in her name knowingfully well that the payments towards the cost of these properties were being arranged by A1 from out of ill gotten money. A2 has CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 3/47 knowingly and consciously abetted A1 in the commission of offence U/s. 13(2) r/w 13(1)(e) of the PC Act. In view of these facts, Charge Sheet U/s. 13(2) r/w 13(1) (e) of PC Act was filed against A1 and U/s. 109 IPC for the abetment of the offence U/s. 13(2) r/w 13(1) (e) on the part of A2 has filed.
1.5. Income of A1 before the beginning of check period, during check period, expenditure during check period, assets acquired during check period revealed during investigation are reflected in the Charts below: INCOME BEFORE BEGINNING OF THE CHECK PERIOD Sl. No. Particulars Detail Total (in Rs.)
1. Salary from Bapuji Sikshayatan 240 x 24 5,760/
2. Salary as Sub Dy. Magistrate 425 x 12 5,100/
3. Salary from CSIR 400 x 32 12,800/
4. Salary from AIR & Doordarshan upto 4,55,790/ 3.6.93 Total 6,04,400/ As against income of Rs. 6,04,400/ his assets upto 3/6/93 were amounting to Rs. 1,67,519/ only. It shows that most of the income was spent by him towards maintenance of his family etc. because as on the beginning of the check period bank balance of Rs. 34,662/ only was available in his bank account.
CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 4/47
INCOME DURING CHECK PERIOD
Sl. No. Particulars Total (in Rs.)
1. Income from salary 4,96,428/
2. GPF part final withdrawal for purchase of Car in 50,000/
June, 94
3. Car advance during Sept., 94 76,500/
4. GPF advance for the marriage of daughter taken 1,00,000/
in March, 98
5. Income from bank interest A/c No. 051205771 of 7,077/
M.B. Pahari maintained with Hong Kong Bank
6. Income from bank interest A/c No. 42,458/ 01SEP1061600 of M.B. Pahari maintained with Grindlays Bank, C. Place
7. Income from Bank interest A/c No. 18,463/ 01SLP1140600 of Chitra Pahari maintained with Grindlays Bank, K. Bagh
8. Income from Bank interest A/c No. 348442 of 33,295/ M.B. Pahari maintained with SBI Sansad Marg
9. Income from Bank interest A/c No. 15764 in the 34,062/ joint name of Mr & Mrs. Pahari with UBI, Calcutta
10. Income from bank interest A/c No. 297640 of Dr. 358/ Pahari with UBI, High Court, Calcutta
11. Income from Bank interest A/c No. 86371 of 7,008/ Dimple Pahari with PNB, Sansad Marg
12. Income in the name of Chitra Pahari as reported 69,898/ in the IT Return for the year 199697
13. Survival benefit from LIC Policy No. 410855663 25,000/ of M.B. Pahari Total Income During Check period 9,60,547/ CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 5/47 EXPENDITURE DURING CHECK PERIOD Verifiable expenses Sl. No. Particulars Total (in Rs.) a. Payment towards electricity bills and security 33,162/ deposit of connection No. RP7031259706 installed at Q14, Andrewsganj Extension residence of M.B. Pahari b. Payment towards LIC Premium in respect of 61,449/ Policy No. 410855663 of M. B. Pahari c. Payment to M/s Grihasree Marriage Hall at the 17,400/ time of marriage of Ms. Dimple Pahari on 19 & 20/4/98 at Calcutta d. Payments towards locker rent to UBI, High Court 2,575/ Branch, Calcutta e. Payment of Kwality Restaurant, Calcutta on 40,950/ 19/4/98 at the time of marriage of Mrs. Dimple Pahari f. Payment to Metro Hospitals and Heart Institute, 1,00,000/ Noida during Jan. 99 g. Payments to Frank Anthony Public School, New 41,060/ Delhi towards educational expenses of Ms. Ina Pahari including Rs.1000/ per annum towards stationary etc. h. Payments to Vikas Trravel and Tour Pvt. Ltd, 29,664/ Delhi towrds cost of 3 air tickets from Delhi to Bombay and back fo the journey of Mr. and Mrs. Pahari and Ms. Ina Pahari during Dec., 98 i. Payment of premium towards insurance of car 10,721/ from National Insurance Co., Karol Bagh, New Delhi from 19/12/96 to 21/12/98 j. Payments towards educational expenses and mess 17,741/ charges of Ms. Dimple Pahari to IIT Kanpur for the period 1993 to 1995 CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 6/47 k. Payment to M/s P.C. Chandra & Sons India Ltd., 8,113/ Calcutta for purchase of 3 rings on 15/4/98 l. Payment of income tax for the financial year 5,970/ 199697 by Smt. Chitra Pahari m. Payment of rent of flat no. 7, Tara Mansion, GB 19,800/ Road, Calcutta @ Rs. 300/ p.m. n. Payment of bill of Sremon Guest House, Calcutta 10,596/ for the stay of Dr. M.B. Pahari and family from 18 to 20/4/98 o. Payment made to Five Star Motor Driving 900/ College, Delhi on 24/9/94 p. Payment to National Insurance Co. K.G. Marg, 6,336/ New Delhi towards insurance of car for the period 199596 q. Payment of donation to ISKON, New Delhi on 14,444/ 30/3/99 r. Payment of air ticket dt. 21/11/98 to Jet Airways 11,860/ for journey from Delhi to Calcutta and back s. Payment of maintenance charges to Trishul 26,030/ Apartments, Sindhi Society, Chembur, Mumbai towards t. Financial help to Smt. Shikha Pahari on the death 10,000/ of her husband by Dr. M. B. Pahari during Dec.
97u. Payment towards rent of Locket Nos. B178 and 11,850/ A33 with Grindalys Bank Karol Bagh v. As per entries in the cheque book record slip of 35,165/ SB A/c 148442 maintained with SBI Sansad Marg by Dr. M.B. Pahari and corroborated by the statement of account, he made payments to Citi Bank from Jan., 1997 to January, 1999 from Cheque Book No. 928251 to 928275 for Citi Bank Card, Diners Card and Visa Card of Citi Bank totalling CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 7/47 w. Payment to Airtel for Cell Phone No. 9810019955 4,694/ during the period between Dec., 95 to March, 98.
Total 5,20,480/ Non verifiable expenses
Dr. M.B. Pahari has drawn salary of Rs. 4,96,428/ during the check period and counting 1/3rd of carry home salary to have been utilized towards kitchen expenses and maintenance of family, the expenditure under this head works out to be Rs. 1,65,476/.
ASSETS ACQUIRED DURING THE CHECK PERIOD
Sl. No. Particulars Total (in Rs.)
(a)
(i) Cash found during house search on 11/8/99 at Q 11,53,850/
14 Andrewsganj Extension residence of Dr. M.B. Pahari.
(ii) Cash found at H. No. E6/212, Sterling 1,04,01,650/ Apartments, Charmwood village, Surajkund, Faridabad on 11/8/99
(iii) Cash found during search of locker in ANZ 7,52,000/ Grindlays Bank, Karol Bagh maintained in joint names of Mr. & Mrs. Pahari on 12/8/99
(iv) Cash found during personal search of M. B. Pahari 5,000/ on 11/8/99
(v) Cash found at flat no.7, Tara Mansion, GB Road, 6,17,000/ Calcutta in the possession of Dr. Pahari on 24/8/99
(vi) Cash recovered from locker No. 63 maintained 3,31,500/ CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 8/47 with UBI, High Court Branch, Calcutta by Dr. M. B. Pahari Total 1,32,61,100/
(b) Foreign currency (US $ 1127 and Pounds Sterling 55,000/
130) found during search of bank locker at ANZ Grindlays Bank, Karol Bagh valued at
(c)
(i) Jewelry found at Q14, Andrewsganj Extension on 5,02,744/ 11/8/99
(ii) Jewelry found in Bank Locket at ANZ Grindlays 2,01,114/ Bank, Karol Bagh
(iii) Jewelry seized from flat No.7 Tara Mansion, 32,800/ Calcutta on 24/8/99 (78.39 gms)
(iv) Gold and other jewelry items recovered from the 1,74,667/ search of locker No. 63, UBI, High Court Branch, Calcutta Total 9,11,325/
(d)
(i) House hold articles found at Q14, Andrewsganj 8,29,979/ Extension on 11/8/99
(ii) House hold articles found at E6/212, Sterling 3,91,221/ Apartments, Faridabad on 11/8/99
(iii) Household articles found at flat no. 7, Tara 16,471/ Mansion, Calcutta on 24/8/99 Total 12,73,671/
(e)
(i) SB A/c No. 348442 of M. B. Pahari with SBI 4,98,696/ Main branch
(ii) A/c No. 051205771006 of M.B. Pahari with 1,20,517/ Hong Kong Bank, Cannaught Place including 3 fixed deposits of Rs. 50,000/, 20,000/ and CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 9/47 20,000/
(iii) A/c No. 86371 of Dimple Pahari with PNB, 43,066/ Sansad Marg, New Delhi
(iv) A/c No. 01SLP 1140600 of Mrs. Chitra Pahari 1,21,416/ with ANZ Grindlays Bank, Karol Bagh
(v) A/C No. 01SEP 1061600 of M.B. Pahari with 3,07,458/ ANZ Grindlays Bank, Cannaught Place
(vi) A/c No. 15764 of Mr. & Mrs. Pahari with UBI, 1,30,728/ Maniktalla Branch, Calcutta
(vii) A/c No. 297640 of Mr. & Mrs. Pahari with UBI, 3,687/ High Court Branch, Calcutta
(viii) CD A/c No. 11304 of M/s Chitra Associates 1,08,182/ maintained with Bank of India, Karol Bagh by Chitra Pahari Total 13,33,750/
(f) Flat No. E6/212, Charmwood Village acquired 8,13,700/ during 199596 in the name of M. Pahari through Swadeshi Estates Agency after paying a premium of Rs. 26,000/ i.e. 13,000/ to Swadeshi Estates and Rs. 7,85,950 to Ajay Enterprises. Another payment of Rs. 1,750/ was received from the allottee by MD of the company Sh. Raman Kr. Sood through his handwritten slip which was not credited into the accounts of the company but was paid by the allottee
(g) Payments made for purchase of Flat No. 143, 10,36,019/ SectorI, BlockI, DDA, Dwarka during the period Sept. 96 to Feb. 99 including Rs. 71,844/ towards conveyance deed etc. in the name of Chitra Pahari
(h) Commercial Flat No. 203, South Ex. Plaza Masjid 6,48,000/ Moth purchased from Atree Developers Pvt. Ltd. during 1996 to 1998 including registration fee etc.
(i) Flat No.A203, Trishul Appts. A Building, Sindhi 9,50,060/ CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 10/47 Society, Chembur, Mumbai purchased from G G Das Narang and his wife in the name of Chitra Pahari during 1996 including stamp duty of Rs. 31,250/ commission of Rs. 8750/ and transfer and entrance fee of Rs. 35,060/
(j) H. No. BD228, Bidhan Nagar, Salt Lake, Calcutta 26,50,000/ purchased/constructed through Ms Qrnate Apartments (I) Pvt. Ltd. Calcutta during 199899 in the name of Chitra Pahari
(k) Building under construction at Mauza Sultanpur, 2,20,000/ Italgacha, Dumdum, Calcutta (being got constructed by Dr. Pahari through Subol Roy, Contractor who has spent Rs. 4,43,911/ but payment of Rs. 2.20 lakhs has been received from Dr. Pahari)
(l) UTI MIP 1994(III) 2500 units in the name of Smt. 25,000/ Chitra Pahri bearing No. 400951580000536 dt. 29/11/94
(m) National Saving Certificates of Rs. 10,000/dt. 32,000/ 30/1/96, 2 NSCs of Rs. 1000/ each dt. 16/2/94, NSC dt. 16/2/94 for Rs. 5000/ all in the name of M. B. Pahari, NSC dt. 13/11/96 for Rs. 5000/ in the name of Ina Pahari and NSC for Rs. 10,000/ dt. 18/12/96 in the name of Ms Dimple Pahari
(n) Maruti AC Car No. DL 3 CF 1467 of Dr. Pahari 2,11,957/ purchased during Sept./Dec. 1994 from Competent Automobiles
(o) Following NSCs and FDRs recovered from locker No. 63 in UBI High Court Branch Calcutta operated and searched on 23/6/20000
(i) NSC No. 10EE 969874 dt. 22/11/94 of M. B. Pahari and NSC No. 13EE 873113 dt. 7/12/94 in 20,000/ joint name of Mr. & Mrs. Pahari
(ii) FD No. 235908/567/94 of Rs. 50,000/ dt. 11/6/94 FDR No. 178337/137/95 dt. 30./1/95 of CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 11/47 Rs. 50,000/ in the joint names of Mr. & Mrs. Pahari 1,00,000/ Total 1,20,000/ Total Assets 2,35,05,582/ Income During check period : 9,60,547/ Expenditure during check period : 6,85,956/ Likely saving (Income minus expenditure): 2,74,591/ Amount available for expenditure at the beginning of the check period : 34,662/ Total Saving during check period : 3,09,253/ Total assets acquired during check period: 2,35,05,582/ Disproportionate assets (Total assets minus savings) 2,31,96,329/ CHARGE 2.0. A1 was given charge u/s 13(1)(e) punishable u/s 13(2) of P.C. Act to which he pleaded not guilty and claimed trial.
2.1. A2 was charged for the offence of abetment u/s 109 IPC R/w section 13(2) and 13(1)(e) of P.C. Act, to which he pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION 3.0. Total 70 witnesses are examined by prosecution to prove its case. A1 died on 03.03.2014 and accordingly proceedings stands abated against him. The various witnesses examined by prosecution are broadly categorised as follows: CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 12/47 A. Sanctioning Authority of A1 (I) PW1 Sh. P.K. Verma was working as Under Secretary (Vig.) in the Ministry of Information & Broadcasting of Govt. of India who proved sanction order Ex. PW1/A. B. Search at the premise no. E6/212, Sterling Apartments, Charm Wood Village, Surajkund, Faridabad (I) PW3 Inspector H.S. Karmyal (II) PW35 Inspector Surender Malik was member of search team.
(III) PW37 Sh. Hans Raj the independent witness who was working as UDC in Office of Quality Control Room.
(IV) PW44 Inspector Ajeet Singh
C. Witness called at Charm Wood Flat to count the
currency notes
(I) PW5 Sh. V.K. Aggarwal, Chief Manager, Corporation
Bank, CGO Complex, Lodhi Road.
(II) PW7 Sh. Ratnakar Pal, Manager, Corporation Bank,
CGO Complex.
D. Witness regarding sale of flat at Charm Wood Village
(I) PW10 Sh. Mohan Arora, MD of Swadeshi Estates P. Ltd.
(II) PW11 Sh. Pitamber Sharma, working with M/s Ajay
Enterprises who used to deal with flats of Charm Wood Village.
CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 13/47(III) PW38 Sh. Shailender Mishra working with M/s Ajay Enterprises at Charm Wood Village.
(IV) PW46 Sh. Vinod Kumar Harshwal, Asstt. Accountant in M/s Ajay Enterprises.
(V) PW59 Sh. Raman Kumar Sood, MD of M/s Ajay Enterprises.
E. Witnesses who have given valuation report of jewellery (I) PW4 Sh. Sudesh Kumar Bhasin, Proprietor of M/s Balaji Jewellers.
(II) PW23 Sh. Sanjeev Khanna partner of M/s Raja Jewellers.
(III) PW25 Sh. Bishwanath Basak proved valuation of jewellery.
F. Witnesses of search at Andrews Ganj Flat (I) PW2 Sh. Gopi Chand working as Asstt. Controller of Stores in Office of Controller Stores, Baroda House was joined as independent witness.
(II) PW6 Sh. Mukesh Kumar Talwar, Head Clerk in Northern Railway, Baroda House.
(III) PW69 Inspector Amit V. Bhardwaj participated in the search of residential premises of A1 at Andrews Ganj.
CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 14/47G. Witness of search of lockers at ANZ Grindlays Bank (I) PW32 Sh. A.C. Chopra, CRO in ANZ Grindlays Bank.
H. Witnesses (bank officials and others) who have handed over the documents to the CBI (I) PW8 Sh. Narender Seth working in ANZ Grindlays Bank handed over the documents to the CBI.
(II) PW9 Sh. Shailender Bhardwaj working in Bank of India, Karol Bagh Branch handed over the documents to the CBI.
(III) PW12 Sh. N.L. Arora who was working in DVB as Asstt.
Finance Officer had given statement of account of A1 regarding Connection No. RP7031259706DX/L139.
(IV) PW13 Sh. Ravinder Kumar Puri who was working as Special Assistant in Hongkong & Shangai Banking Corporation Ltd. had sent copies of statement of account of A1 to Sh. P.C. Sharma, DSP, CBI (PW49).
(V) PW14 Sh. Bishan Singh was posted in the Personal Banking Branch of State Bank of India had produced certified copies of statement of account of A1 i.e. SB old account no. 665148442 and new account no. 01190 348442 w.e.f. 30.06.1993 to 31.07.1999.
(VI) PW15 Sh. R.K. Maharishi was posted as Clerk in Sansad Marg Branch. He submitted the statement of account no. 86371 of Ms. Dimple Pahari daughter of A1 CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 15/47 & A2 w.e.f. 03.11.1995 to 17.08.1999, 01.04.1996 to 20.09.1996 & October, 1997 to 31.08.1998 to CBI.
(VII) PW17 Sh. D.K. Pandey who was posted as Deputy Manager Deposit, Bank of India, Karol Bagh Branch, New Delhi had provided statement of account no. CD/11304 of M/s Chitra Associates whose Proprietor is A2 to the CBI.
(VIII) PW18 Sh. D.K. Jain was posted as Dealing Assistant in Housing Department of DDA. He had handed over File No. F 174(0094)97/SFS IX/DW/III/074391 to CBI.
(IX) PW29 Sh. Naresh Nihchaldas Phabiani had handed over the documents related to flat no. 203 to the CBI.
(X) PW48 Sh. Akhilesh Kumar Singh who was working as Assistant (Vigilance) in the office of Director General, Doordarshan, Mandi House, New Delhi had handed over somed documents to CBI.
(XI) PW65 Sh. Tarsem Singh who was working as Sr. Accounts Officer in the office of Deputy Controller of Accounts, Ministry of I&B, AGCR Building, Delhi had sent the details of pay and allowances pertaining to A1.
(I) Witness regarding the expenditure during check period (I) PW16 Sh. Prem Kumar, Sales Officer in M/s Competent Automobiles, Connaught Place.
CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 16/47(II) PW19 Sh. Krishan Gopal was doing the business of construction and sold one constructed office to A2.
(III) PW20 Sh. Debasish Karmakar was doing the business of marriage home.
(IV) PW21 Sh. Sameer Kumar Chatterjee who was working in Kwality Restaurant, Calcutta had rendered services to A1 on his daughter's marriage.
(V) PW22 Sh. Mohan Kumar Garg was running a firm M/s Vikas Travels & Tours Pvt. Ltd. and had booked air tickets for A1, A2 and their daughter.
(VI) PW24 Sh. N.K. Gandhi was working as Accounts Officer in Frank Anthony Public School, New Delhi and proved school fee of Ms. Ina Pahari daughter of A1 & A2.
(VII) PW26 Sh. Bhaskar Chandra, Administrative Officer in LIC.
(VIII) PW27 Sh. R.K. Singh, Nodal Officer, Bharti Airtel (proved billing statement of A2) (IX) PW28 Sh. Sanjeev Bhargave was the Dean of Students Affairs in IIT Kanpur and proved the educational expenses of Ms. Dimple Pahari daughter of A1 & A2.
(X) PW30 Sh. Surender Arora from Jet Airways proved ticket in the name of A1.
CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 17/47(XI) PW33 Sh. Panchu Gopal Dass is the witness regarding purchase of land by A1 for construction of house near Dumdum Airport.
(XII) PW34 Sh. Dibyendu Sarkar working in P.C. Chanda Jewellers.
(XIII) PW39 Sh. Subalroy who has done construction work for A1 at a piece of land near Calcutta Airport.
(XIV) PW40 Sh. Satpal Singh who was the driver of City Cab Taxi Company.
(XV) PW41 Sh. Pradeep Roy, coowner of Tara Mansion Building, G.B. Road, Kolkata. A1 had hired one flat no. 7 at 2nd floor of Tara Mansion Building and paying rent to him.
(XVI) PW42 Sh. Rahul Mohata who was working as a Builder under the name & style of M/s Ornate Apartments India Pvt. Ltd.
(XVII) PW62 Sh. Shyamal Dhar, owner of Sremon Guest House.
(XVIII) PW63 Sh. Manish Talwar was working as Manager in Arvee Sales Agency, Lajpat Nagar, New Delhi. A1 had purchased one BPL Refrigerator from this agency.
CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 18/47(XIX) PW64 Sh. Arvind Kumar was working as Branch Manager Palika Bhawan, R.K. Puram in National Insurance Company Ltd.
(XX) PW66 Sh. Krishna Kumar, Branch Manager, SBI, Bhabha Atomic Research Centre Branch, Trombay, Mumbai.
J. CBI OFFICIALS & CFSL OFFICIALS
(I) PW45 Dy. SP D.K. Barik (conducted search of Q14,
Andrews Ganj, New Delhi.
(II) PW49 DSP P.C. Sharma, IO of this case.
(III) PW50 Inspector Alok Kumar had conducted search of the locker on the name of A1 & A2 at ANZ Grindlays, Arya Samaj Road, Karol Bagh.
(IV) PW52 Inspector A.K. Malik (seized various documents from Kolkata) (V) PW56 Sh. S.L. Mukhi. Principal Scientific Officer, CFSL.
(VI) PW57 Inspector Subhash Chander Bhalla had visited Charm Wood Village at Surajkund, Faridabad.
(VII) PW58 Dy. S.P. B.K. Pradhan. He had collected some documents from there.
CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 19/47K. OTHER WITNESSES (I) PW31 Sh. Aurobindo Dhara, Assistant Teacher in Saint
Xavier High School, Haldia, West Bengal. (He proved attendance registers bearing signatures of Manav Pahari) (II) PW47 Sh. Ved Kumar Sharma (III) PW51 Smt. Shikha Pahari wife of Manav Pahari (elder brother of A1) (IV) PW53 Sh. G.S. Seth, Manager, Sydicate Bank, Khan Market Branch. On 14.08.1999 he had counted cash in CBI Office, the cash was brought to the bank and deposited in the current account of SP, ACB, CBI.
(V) PW54 Sh. S.K. Gupta, Supervisor in Syndicate Bank, Khan Market Branch.
(VI) PW55 Sh. R.K. Kapoor (personal staff of A1).
(VII) PW60 Sh. Gulraj Gopal Dass Narang. He had purchased flat no. A203, Trishul Apartments, Sindhi Society, Chembur from A1 & A2.
(VIII) PW61 Sh. Suresh Anand, CA. He filed ITR of A2.
(IX) PW66 Sh. Krishna Kumar from SBI. He deposed about the bank account of Dimple Pahari.
(X) PW67 Smt. Bipasha Sarkar. She is from BSNL and deposed regarding receipt of Rs. 1,000/ dated 21.06.1989 pertaining to registration of new landline CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 20/47 connection at Kolkata.
(XI) PW68 Sh. K. Bhardwaj, General Manager, Metro Hospital & Heart Institute proved bill of A1.
(XII) PW69 Smt. Shikha Pahari wife of elder brother of A1.
ADMITTED DOCUMENTS BY A1 & A2 4.0. Both A1 & A2 also admitted various documents u/s 294 Cr.P.C. vide their statements dated 28.08.2002.
4.1. A1 admitted various documents as Ex. P1 to Ex. P8, Ex. P10/A to Ex. P10/E, Ex. P11 to Ex. P21, Ex. P25 & Ex. P26.
4.2. A2 admitted various documents as Ex. P3 to Ex. P5, Ex. P9, Ex. P16, Ex. P20, Ex. P22 to Ex. P25 & Ex. P27 to Ex. P
30. STATEMENT OF A2 5.0. A2 denied the entire evidence against her. She has taken the defence that in the year 1991 she was in the business of sale and purchase of sarees and holding exhibition at various places and was residing at Calcutta. She was having very good business. In the year 1992 she alongwith her husband shifted to Delhi. She started doing business of consultancy and advertising in the name of M/s Chitra Associates at D17, Lajpat Nagar, New Delhi. Sh. Rakesh Gupta was involved in advertising, she contacted him for business and did business with him. She was implicated falsely to make out a case against her husband A1. She opted to CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 21/47 lead defence evidence and examined four witnesses.
5.1. DW1 Dr. Dimple Dutta is the daughter of A2. She deposed that her mother i.e. A2 is doing saree business since 1978 - 79. She proved NSC certificate Ex. DW1/A in the name of her sister Ms. Ina Pahari.
5.2. DW2 Sh. Jitender Sihwag, Under Secretary, Govt. of India, Ministry of Personnel and Public Grievances produced the file regarding production of documentary films on good governance practices 2004 - 2005. He proved copy fo the letter Ex. DW2/A written by Sh. B.K. Mishra, Under Secretary, Govt. of India to A1. He also proved letters Ex. DW2/B and Ex. DW 2/C. 5.3. DW3 Sh. Ashok Kumar, Inspector, Ward Circle64(1) produced the ITRs of A1 for the year 200001 alongwith computation of income, copy of which is Ex. DW3/A. 5.4. DW4 Sh. Chander Shekhar, Nodal Officer, Bharti Airtel deposed that as per their record, no record of phone no. 9810019955 is available prior to the period 29.10.1998 as they do not keep the record more than three years. He proved copy of the guidelines as Ex. DW4/A. ARGUMENTS 6.0. Heard arguments of Sh. Anil Tanwar, Ld. PP for CBI and Sh. Yogesh Verma, Ld. Counsel for A2. Perused the record as well as written submissions filed by both the parties.
CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 22/476.1. It has been stated by Ld. PP for CBI that since the posting of A1 as Director, DDK, he started accumulating the huge assets. A1 has died during trial but most of the witnesses have been cross examined during his lifetime. It is well settled law that death of main accused or main conspirator does not absolve the remaining coaccused, who are either abettor or coconspirator. It has been stated that to establish that A2 who is wife of main accused A1 was abettor, it needs to be established first if the main accused i.e. A1 has committed the offence of criminal misconduct as defined u/s 13(1)(e) of the P.C. Act. It has been stated that amount of Rs. 1,04,01,650/ was recovered from the house of A1 i.e. E6/212, Sterling Apartment, Charms Wood Village, Surajkund, Faridabad. Prosecution has been able to prove beyond all reasonable doubt that this amount belongs to A1. It has been stated that besides recovery of huge cash some papers regarding investments made in the name of A1 & A2 were also recovered. It has been stated that prosecution has been able to prove that A1 was accepting huge amounts from the private parties, which were having official dealings with A1 during discharge of his duty, with the help of A2, who facilitated in receiving such huge amount and investing the same in purchase of properties on the name of A1 & A2. It has been stated that A2 was not having any independent source of income, she had admitted documents Ex. P1 to P7 on the basis of which it stands proved that A2 has invested ill gotten money of A1 on her name. It has been stated that prosecution has been CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 23/47 able to establish that A2 was operating account with ANZ Grindlays and Bank of India, on the name of M/s Chitra Associates and huge amount was lying deposited there. It has been stated that from the evidence led, it also stands established that flat no. 203, Second Floor, Trishul Apartments, Mumbai purchased from Sh. G.G. Dass Narang, house no. BD 228, Bidhan Nagar, Salt Lake, Calcutta purchased through M/s Ornate Apartments (I) Pvt. Ltd., Calcutta were on the name of A2 which establishes clearly that she was the abettor. It has been stated A 2 being the wife is presumed to know the legal and valid financial capacity / status of her husband. She was living with her husband. She was having joint account in ANZ Grindlay Bank, Karol Bagh and she was also having two lockers in the said bank.
6.2. On behalf of A2 it has been submitted that during the pendency of proceedings, A1 has died on 23.12.2013 and proceedings against him stands abated. It has been stated that law is settled that no order can be passed against the dead person and even the property of the dead person cannot be attached till the final decision. It has been stated that to prove the offence u/s 109 IPC there should be proof of direct or indirect act of incitement of commission of alleged offence. But prosecution has failed to produce any evidence that A2 instigated A1 to do offences alleged against him. It has been stated that A2 have no concern with the flat no. E6/212, CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 24/47 Sterling Apartment, Charms Wood Village, Surajkund, Faridabad. It has been stated that the jewellery alleged to have been recovered from the house of A1 and attributed to A2 was her Istridhan. It has been stated that from the evidence which has come on record it stands established that A2 was doing business independently and was taking decisions for sale and purchase of properties without any sort of assistance of A1. A2 was running a firm in the name of M/s Chitra Associates in Lajpat Nagar and this fact stands proved from the statement of PW47 owner of the premises in which she was running her business activities. It has been stated that the flat situated at Trishul Apartment, Mumbai was purchased by A2 from her own savings and same has been shown by her in his ITRs which were seized by CBI. The ITRs of A2 further established that A2 was running a business in the name and style of M/s Chitra Associates.
APPRECIATION OF EVIDENCE 7.0. A1 was given charge u/s 13(1)(e) punishable u/s 13(2) of P.C. Act for amassing assets to the tune of Rs. 2,31,96,329/ which were disproportionate to his known sources of income. A 2 being his wife is charged for aiding A1 in the commission of the offence u/s 13(1)(e) R/w section 13(2) of P.C. Act for amassing assets to the tune of Rs. 2,31,96,329/. As mentioned earlier A1 died on 03.03.2014 and by that time 56 witnesses were lying examined and cross examined by A1 & A2.
CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 25/477.1. The defence taken by A2 is mainly two fold, firstly, it has been contended that main allegations levelled by prosecution are against A1, since proceedings stands abated against him, hence, nothing remains to be decided against A2. It has been stated that no order can be passed against the dead person and the law is settled that there is presumption of innocence of the accused till he is convicted. Secondly, it has been contended that to prove offence under Section 109 IPC, there should be proof of direct or indirect act of incitement of commission of alleged offence but prosecution has failed to prove any evidence that A2 has instigated A1 to do offence alleged against him. To support his contentions, Ld. counsel has relied upon Rekha Nambiar Vs. CBI (Supra).
7.2. Most of the witnesses examined by prosecution are to prove assets, expenditure and income of the A1. As per prosecution case A1 was also holding various assets on the name of A2, that is why A2 has been charged as aiding and abetting A1 in amassing disproportionate assets. A1 being dead, the first contention raised on behalf of A2,in considered view of this court, will decide the case against the prosecution without discussing the entire evidence led by prosecution.
7.3. Regarding first contention raised by accused, there is no doubt about the preposition of law that no order can be passed against the dead person. To support his contention, Ld. Counsel for A2 has relied on observations made by court in Rekha CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 26/47 Nambiar Vs. CBI (Supra). In this case deceased government servant was facing allegations under Section 13(1)(e) of PC Act, whereas his wife, i.e. petitioner was facing allegations under Section 109 read with Section 13(1)(e) and 13(2) P.C. Act. Third accused was also facing allegations similar to the petitioner that he instigated/intentionally aided by his acts the government servant in acquiring assets. The specific allegations the petitioner Rekha Nambiar was facing is that she had abetted for acquiring the disproportionate assets by her husband by receiving an amount of Rs. 1,04,07,829/ as consultancy fee from third accused who was Managing Director of a company and had created assets out of the same and she had not done any real consultancy work for the coaccused. The case of the prosecution was that consultancy fees and other payments made to her is simply an excuse to justify the possession of disproportionate assets. After the death of government servant, petitioner filed petition under Section 482 Cr.P.C. The court quashed the proceedings observing that CBI has failed to bring evidence on record to show that the third accused ever got any favour from the deceased government servant, i.e. husband of the petitioner; there was statement of account of the bank revealing that petitioner was in the employment of the said bank; petitioner had reflected the income earned by her through her consultancy from third accused in ITRs; there existed MOU wherein petitioner had agreed to contribute 20% of the paid up capital of M/s HYT Innovative projects Pvt. Ltd. (company of third CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 27/47 accused). In the background of these facts the court has observed that ingredients of the offence under Section 109 IPC are not made out against the petitioner.
7.4. Ld. PP for CBI has contended that offence punishable under Section 109 IPC is an independent offence and simply because main accused has died that does not mean that substantive offence against A2 also stands wiped out. In support of his contention, he has relied upon Siddharth Verma Vs. CBI (Supra). In this case father of the petitioner was charged for commission of offence under Section 13(1)(e) read with Section 13(2) of P. C. Act and his son who is petitioner was charged under Section 109 IPC read with Section 13(2) and 13(1)(e) of P. C. Act. During proceedings, father of the petitioner died and proceedings against him got abated The application of the petitioner for discharge in the case was dismissed by Ld. Special Judge and this order was challenged by him. As per facts of this case, petitioner was alleged to have acted as conduit for his father in amassing wealth by corrupt means and despite being a student, his income was shown from unknown sources. He was shown to have purchased 37.4 Bighas and 3.33 Acres of agricultural land. As per investigation, these properties were purchased by him from his father's ill gotten money. The court has observed that since the main accused has died that does not mean that substantive offence is wiped out. The offence committed by deceased accused amassing wealth through CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 28/47 corrupt mean does not stand wiped out and the wealth still stands there in the hands of LR of the deceased and the role of the petitioner acting as a conduit for amassing wealth for his father can be proved by CBI during trial. Accordingly, petition was dismissed.
7.5. The facts of the present case are distinguishable from the facts of Siddharth Verma's (Supra) case. In the present case after recording the entire prosecution evidence, statement of accused (A2) u/s 313 Cr.P.C. and defence evidence led by A2, trial has been concluded. Whereas case in Siddharth Verma (Supra) was at the initial stage where application moved by petitioner the son of the deceased government servant for discharge from the offence u/s 109 IPC R/w Section 13(1)(e) R/w Section 13(2) of P.C. Act was dismissed. Possession of disproportionate assets in comparison to the known sources of income by the government servant is the gist of the offence u/s 13(1)(e) of P.C. Act. To appreciate the proposition of law which emerges in a proper manner, section 13(1)(e) of P.C. Act with explanation is reproduced here as follows: "13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct.-
(a)............
(b)............
(c)............
(d)............
CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 29/47(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation.- For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."
7.6. As per the requirements of the section, the public servant is required to satisfactorily account of the assets which prosecution is able to prove against him during trial. The criminal trial gives an opportunity to accused to account for / explain the assets found in his possession, which are alleged to be disproportionate to his known source of income, through his statement recorded u/s 313 Cr.P.C. and then the said public servant / accused is given an opportunity to lead evidence in his defence to establish his explanation. Here in this case A1 has died during the recording of prosecution evidence and as discussed earlier, A1 could cross examine only 56 witneses examined by the prosecution and thereafter the trial having abated against A1, the remaining witnesses were only cross examined by A2. As required by law, A1 did not get opportunity to satisfactorily account the assets alleged to have been found in his possession. Possession of pecuniary resources or property disproportionate to known source of income by public servant i.e. A1 is the main/primary offence. If prosecution is held to have succeeded in proving its case i.e. CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 30/47 disproportionate assets against A1, only thereafter court is required to see if necessary ingredients of the offence i.e. u/s 109 IPC R/w Section 13(1)(e) R/w Section 13(2) of P.C. Act are there against A2. Here in this case, in the considered view of this court, firstly this court cannot give any finding against A1 and secondly because of his death A1 did not get an opportunity to satisfactorily account of his assets which are alleged to be disproportionate to his known source of income.
7.7. Ld. PP, CBI has urged that as per the charge sheet the disproportionate assets found in possession of A1 is more than 70 times to his total savings during check period. It has been stated that the disproportionate assets are very exorbitant and it would have been impossible for A1 to account for these assets. It has been contended that in CC No. 14/08 (FIR No. 68A/2000) A2 Chitra Pahari with third accused was held guilty for the offence punishable u/s 120 IPC read with Section 11 &12 of P.C. Act. She was also held guilty for the offence punishable under section 12 & 14 of P.C. Act. It has been further contended that it was also held by this court in this case that A2 has failed to prove that M/s Chitra Associates was transacting any business and exactly same defence has been taken by A2 in the present case.
CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 31/477.8. There is no doubt with the proposition of law that every criminal trial has to be concluded on its own strength after appreciating the evidence led by the prosecution. No doubt A1 has also died when final judgment in CC No. 14/08 was pronounced by this court but nature of offences alleged against A2 were totally different in that case in comparison to the present case. Accordingly, the contention raised by Ld. PP, CBI is found to be not tenable and of no help to the prosecution as far as facts of this case are concerned.
7.9. No doubt disproportionate assets alleged against A1 are more than 70 times than the total savings which A1 was having during the check period. But A1 having died and having not got an opportunity to satisfactorily account his pecuniary resources or assets disproportionate to his known source of income, this court is not in a position to return any finding on the culpability of A1 vis a vis the charges faced by him in this case.
7.10. Prosecution has examined 70 witnesses in support of its case. After registration of the FIR various searches and seizures were done by CBI during investigation. Income and expenditure of A1 alleged by prosecution against A1, in the considered view of this court, is not required to be discussed, as hypothetically A 1 could have led evidence to establish that his income during this check period was more than as calculated by CBI. Similarly, he could have also disputed the expenditure assigned to him by CBI CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 32/47 by claiming that it has been reckoned on the higher side. Similarly, calculation of various assets, attributed by prosecution to him, could also have been disputed by A1. But in view of this court, the finding needs to be given on the recoveries alleged to have been made during various searches and seizures conducted by CBI during investigation.
7.11. Ex. PW2/A is the observation memo, as per which total cash of Rs. 11,53,850/ was recovered and seized from official residence of A1 at Q14, Andrews Ganj Extension, New Delhi. The same has been proved by PW69 Inspector Amit V. Bhardwaj who is one of the search witness. The two independent witnesses, PW2 Sh. Gopi Chand and PW6 Sh. Mukesh Kumar Talwar were joined by CBI during search of this premises. Both PW2 & PW6 were cross examined by both the accused but nothing has come on record to dispute this recovery. Hence, recovery of this amount from official residence of A1 stands proved.
7.12. Ex. PW3/B is the seizure cum observation memo, vide which recovery of Rs. 1,04,01,650/ is shown from flat no. E 6/212, Sterling Apartment, Charm Wood Village, Surajkund, Faridabad. This search was conducted by PW3 Inspector H.S. Karmyal accompanied by Inspector Surender Malik (PW35), Inspector Ajeet Singh (PW44) and independent witness Sh. Hans Raj (PW37). As per PW3 in pursuance to authorisation given by DSP D.K. Barik on 11.08.1999 they conducted search of CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 33/47 this premises. The presence of A1 was secured at 11:30 AM. The duplicate key was made and premises was opened. During the course of search, service of photographer Sh. Mukesh Sharma and four bank officials of Corporation Bank, CGO Complex was also arranged. The statements of CBI officials and independent witness PW37 are consistent regarding this search. Nothing has come during cross examination of these witnesses to dispute this search and recoveries made from there. PW5 & PW 7 are official of Corporation Bank who alongwith two others were called there for counting the cash.
7.13. Prosecution has examined PW10, PW11, PW38, PW46 & PW59 to prove ownership of A1 of this property. PW10 Sh. Mohan Arora, MD of Swadeshi Estates P. Ltd. has deposed that he had sold this property at Charm Wood Village to A1. Ex. PW 10/A is the file regarding this property. He has further deposed that Sh. Rajender Pal and Ms. Neena Bhatiani were the original owners of this flat. He had purchased this property from them on 30.03.1995 vide agreement Ex. PW10/B. Thereafter, he had sold this property to A1 vide agreement dated 06.07.1995 which is Ex. PW10/E. 7.14. PW11, PW38 & PW46 were working with M/s Ajay Enterprises the company who had constructed these flats at Charm Wood Village, Surajkund, Faridabad. PW59 is the MD of this company. From the statements of these witnesses it stands established that this flat was purchased by A1 and at the time of CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 34/47 inspection on 11.08.1999 he was in possession of this flat. Accordingly, recovery of cash amounting to Rs. 1,04,01,650/ stands established from this flat.
7.15. Ex. PW2/C is the search cum seizure memo, as per which Rs. 7,52,000/, 1127 US Dollars and 130 pounds were seized from the locker in ANZ Grindlays Bank, Karol Bagh Branch. This search was conducted by Inspector Yashvir Singh and PW50 Inspector Alok Kumar alongwith independent witnesses PW2 and PW6. As per PW50 on 12.08.1999 the two lockers were opened in the presence of A2. An inventory was prepared regarding all the contents of both the lockers separately. PW32 Sh. A.C. Chopra, Customer Relation Officer in the bank has deposed that A1 & A2 had two lockers i.e. B178 and A33 in their branch. He has also identified his signatures on search cum seizure memo Ex. PW2/C. Accordingly, various articles shown to have been seized in memo Ex. PW2/C from the two lockers on the name of A1 & A2, stands proved.
7.16. Ex. PW2/D is the personal search cum seizure memo of A1, as per which cash of Rs. 5,000/ is shown as recovered from his possession on his arrest on 11.08.1999. The recovery of this amount also stands proved.
7.17. Ex. PW41/1 is the search cum seizure memo pertaining to premises no. 7, 2nd floor, Tara Mansion, 96A Gora Batshi Road, Dumdum, Calcutta. As per this memo in addition to other articles cash of Rs. 6,17,000/ was recovered from there. Prosecution CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 35/47 has examined PW41 Sh. Pradeep Roy to prove the fact that this flat was in possession of A1. He is also witness to the memo Ex. PW41/1. This court find no reason to dispute this recovery. It thereby stands established that this flat was in possession of A1 and cash amounting to Rs. 6,17,000/ and other articles were recovered from there.
7.18. Ex. PW49/4 is the search memo prepared after search of locker no. 63 maintained with UBI, High Court Branch, Calcutta on the name of A1. PW49 Inspector P.C. Sharma has conducted search of this locker. During search besides other articles cash amounting to Rs. 3,31,500/ was recovered. It is not disputed by accused if this locker was on the name of A1. Accordingly, recovery of cash amounting to Rs. 3,31,500/ stands duly proved from this locker maintained by A1.
7.19. Prosecution has also alleged that there is recovery of jewellery worth Rs. 5,02,744/ from H.No. A14, Andrews Ganj, worth Rs. 2,01,114/ from locker at ANZ Grindlays Bank, Karol Bagh Branch, worth Rs. 32,800/ from flat no. 7, Tara Mansion Building, G.B. Road, Calcutta and worth Rs. 1,74,667/ from locker no. 63 with UBI, High Court Branch, Calcutta. The search cum seizure memos regarding recoveries of these jewellery are already stands proved. Valuation of these jewellery articles stands disputed by A1 & A2. It has also been submitted on behalf of A2 that jewellery articles were her istridhan articles, CBI has not taken into account the year of acquisition of the CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 36/47 jewellery and valuation was done only on the basis of present value. PW4, PW23 and PW25 who have given valuation reports Ex. PW4/A, Ex. PW23/A and PW25/A have admitted that rates of gold fluctuate from year to year and they have determined the value of gold ornaments as prevalent on that day.
7.20. Various household articles found at the official residence of A1 at Andrews Ganj vide observation memo Ex. PW2/A, at Charm Wood Village, Surajkund, Faridabad flat and at flat no. 7, Tara Mansion, G.B. Road, Calcutta have also been valued by prosecution while calculating the assets of A1. As per CBI officials the value of these articles were done in consultation of the accused persons present.
7.21. Prosecution has also led evidence to establish cash in the various bank accounts of A1. Ex. PW14/B is the statement of account pertaining to account no. 348442 on the name of A1 with SBI, Main Branch, Delhi, as per which there was balance of Rs. 4,98,696/ in the said account. Ex. PW13/B1 to B54 are certified copies of statement of account of A1 proved by PW13 Sh. Ravinder Kumar Puri from Honkong & Shanghai Banking Corporation, Connaught Place, as per which there was deposit of Rs. 1,20,517/ in account no. 051205771006. This witness was not cross examined by A1 and A2, hence it stands proved that this amount was lying deposited in the account of A1.
7.22. PW15 Sh. R.K. Maharishi, Clerk in PNB, Sansad Marg Branch has proved statement Ex. PW15/B of account held on CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 37/47 the name of Ms. Dimple Paharri daughter of A1 & A2. During his cross examination he has admitted that vide intimation Ex. PW15/C Ms. Dimple Pahari has informed that she was a research scholar when she had opened this account. While deposing as DW1 she has deposed that from 1993 to 1995 she was doing M.Sc. (Chemistry) from IIT, Kanpur. After that she joined Tata Institute of Fundamental Research, Mumbai and she used to get scholarship. For one year she remained on training and she used to get scholarship during this period. This witness was cross examined at length but it has not been disputed by the prosecution that she was not getting any scholarship while on training as well as while doing M.Sc. Though what amount DW 1 used to get as scholarship has not come on record but keeping in view the proven fact that she was getting the scholarship, this amount deposited in account of DW1 cannot be taken as proven asset of A1.
7.23. Another account no. 15764 on the joint name of A1 & A 2 with UBI, Manicktala Branch, Calcutta having deposit of Rs. 1,30,728/ stands admitted by both A1 & A2 as Ex. P3. Similarly, Ex. P4 is the statement of account of account no. 297640 held jointly by A1 & A2 with UBI, High Court Branch, Calcutta having balance of Rs. 3,687/ stands admitted by both A1 & A2 as Ex. P4.
7.24. Though it stands proved from the evidence discussed above that various cash amounts, jewellery articles, household CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 38/47 articles, foreign currency and amount lying deposited in various bank accounts of A1 individually or jointly with A2 were recovered by CBI during investigation from the premises in possession of A1 and from his bank accounts but as already discussed A1 having died, he did not get opportunity to explain these assets. Ld. PP has contended that volume of these assets is exorbitant and more than 70 times of the known savings of A1 during check period, but on same reasoning, as discussed in above paras, no finding can be returned on the charges given to A1.
7.25. Other contention raised by Ld. PP, CBI is various assets which as per prosecution case were acquired by A1 on the name of A2 stands admitted by A2 in her statement recorded u/s 294 Cr.P.C. It has been stated that the plea taken by A2 is that she had acquired these properties from her own income but she had failed to explain her income worth these properties miserably. Ld. PP, CBI has further pointed out that during the cross examination of PW6 Sh. Mukesh Kumar Talwar who is an independent witness to the search proceedings conducted at official residence of A1 at Andrews Ganj and at the locker on joint name of A1 & A2 in ANZ Grindlays Bank, Karol Bagh, A2 has suggested this witness that she had informed CBI officials that she had received Rs. 11,60,000/ as advance amount against the sale of one of her immovable properties from one Sh. Jagdish of Sonipat, Haryana. It has been stated that A2 has miserably CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 39/47 failed to establish her defence.
7.26. As per observation memo Ex. PW2/A, total cash of Rs. 11,53,850/ was recovered during search of official residence of A1 at Q14, Andrews Ganj Extension, New Delhi. I agree with the contention raised by Ld. PP, CBI that no evidence has been led by A2 to establish the defence taken by her during cross examination of PW6 regarding receipt of Rs. 11,60,000/ as advance amount from one Sh. Jagdish of Sonipat, Haryana against sale of one of her immovable properties. As pointed out by Ld. PP, CBI vide Ex. P22 & Ex. P24, A2 has admitted that she has acquired property no. 203, Second Floor, South Extn. PartII, Village Masjid Moth, New Delhi worth Rs. 6,48,000/. Similarly, vide Ex. P27, A2 has admitted that flat no. 143, PocketI, Sector - 3, Dwarka for which Rs. 10,28,715/ was paid stands on her name. Further, vide Ex. P28, Ex. P29 & Ex. P30, A2 has admitted that flat no. 203, Trishul Apartment, Chembur, Mumbai was transferred on her name and total amount paid against this transaction was Rs. 9,31,310/.
7.27. Ld. PP, CBI has further pointed that prosecution has been able to prove that A2 has paid Rs. 26,50,000/ as cost of construction of H.No. BD228, Bidhan Nagar, Salt Lake, Calcutta. In this regard prosecution has examined PW42 Sh. Rahul Mohata, owner of M/s Ornate Apartment India Pvt. Ltd. He has deposed that he has sold a bungalow to A1 & A2 and had received Rs. 26.5 lacs from them against receipt Ex. PW42/1.
CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 40/47He has specifically stated that possession of the said bungalow was handed over to A1 after receipt of sale consideration of Rs. 26.5 lacs. I thereby do not agree with the contention raised by Ld. PP, CBI that from the statement of PW42 it stands established that A2 was abettor for acquisition of this asset on her name.
7.28. In view of the various submission made by Ld. PP, CBI the point to be pondered is if assets i.e. cash, gold jewellery, foreign currency and household articles are found from the house in which both A1 & A2 were living, the locker which they were holding on their joint name, if same are found to be disproportionate to the known source of income of A1, can on this sole ground A2 be held to be as an abettor for commission of the main offence u/s 13(1)(e) of P.C. Act. In this case charge given to A2 is for intentionally aiding A1 for the commission of offence u/s 13(1)(e) of P.C. Act for amassing assets to the tune of Rs. 2,31,96,329/.
7.29. The scope of Section 109 IPC with illustrations was discussed by the Apex Court in P. Nallammal V. State rep. by Inspector of Police, AIR 1999 SC 2556. Relevant para 20 to 24 are reproduced as follows: "20. The above contention perhaps could have been advanced before the enactment of the P.C. Act 1988 because Section 5(1)(e) of the old P. C. Act did not contain CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 41/47 an "Explanation" as Section 13(1)(e) now contains. As per the Explanation the "known source of income" of the public servant, for the purpose of satisfying the court, should be "any lawful source". Besides being the lawful source the Explanation further enjoins that receipt of such income should have been intimated by the public servant in accordance with the provisions of any law applicable to such public servant at the relevant time. So a public servant cannot now escape from the tentacles of Section 13(1)(e) of the P. C. Act by showing other legally forbidden sources, albeit such sources are outside the purview of Clause (a) to (d) of the subsection.
21. There is no force in the contention that the offence under Section 13(1)(e) cannot be abetted by another person "Abetment" is defined in Section 107 of the Penal Code as under:
107. Abetment of a thing A person abets the doing of a thing, who First. Instigate any person to do that thing; or Secondly, Engages with one or more other person or persons in any conspiracy for the doing of that thin, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly, Intentionally aids, by any act or illegal omission, the doing of that thing.
For the "First" Clause (i.e. instigation) the following Explanation is added to the section:
Explanation I. A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate for doing of that thing.
For the "Thirdly" Clause (i.e. intentionally aids) the following Explanation is added:
Explanation 2. Whether , either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the omission thereof, is said to aid the doing of that act.CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 42/47
22. Shri Shanti Bhushan cited certain illustrations which, according to us, would amplify the cases of abetments fitting with each of the three clauses in Section 107 of the Penal Code visavis Section 13 (1)(e) of the P. C. Act. The first illustration cited is this:
If A, a close relative of the public servant tells him of how other public servants have become more wealthy by receiving bribes and A persuades the public servant to do the same in order to become rich and the public servant acts accordingly. If it is a proved position there cannot be any doubt that A has abetted the offence by instigation. Next illustration is this:
Four persons including the public servant decide to raise a bulk mount through bribery and the remaining persons prompt the public servant to keep such money in their names. If this is a proved position then all the said persons are guilty of abetment through conspiracy. The last illustration is this:
If a public servant tells A, a close friend of him, that he has acquired considerable wealth through bribery but he cannot keep them as he has no known source of income to account, he requests A to keep the said wealth in A's name, and A obliges the public servant in doing so. If it is a proved position A is guilty of abetment falling under the "Thirdly" clause of Section 107 of the Penal Code.
23. Such illustrations are apt examples of how the offence under Section 13(12) (e) of the P. C. Act can be abetted by nonpublic servants. The only mode of prosecuting such offender is through the trial envisages in the P. C. Act.
24. For the aforesaid reasons we are unable to appreciate the contentions of the appellants that they are not liable to be proceeded under the P. C. Act. Accordingly, we dismiss these appeals."
7.30. Except the assets discussed above which prosecution has been able to prove on the name of A2, there is no other evidence to support allegations of abetment against A2 for CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 43/47 commission of offence punishable u/s 13(1)(e) R/w Section 13(2) of P.C. Act.
7.31. The defence taken by A2 is that she was running a consultancy on the name of M/s Chitra Associates, D17, Lajpat Nagar, New Delhi and was also doing business of sarees. To prove her business of sarees, she has examined her daughter as DW1. But in the absence of any documentary evidence in this regard, the oral assertion of DW1 is of no avail. However, PW 47 Sh. Ved Kumar Sharma is the owner of property no. D17, Lajpat Nagar, New Delhi. As per him he met A2 in the office of A1. A2 had told him that she was doing some research work. In the year 1996 - 97 and 1997 - 98, he gave some jobs to A2 related to research work. A2 had issued two bills for Rs. 3 lacs for doing research work. Out of this, he had given Rs. 1,47,000/ to A2. Out of this total amount Rs. 50,000/ was given by way of demand draft and Rs. 97,000/ in cash. He had deducted a sum of Rs. 75,900/ against these bills submitted by A2 as a rent for using his office premises by A2. From statement of this prosecution witness, it stands established that she was doing research work under her firm M/s Chitra Associates. Prosecution has also examined PW61 Sh. Suresh Anand, CA of M/s Suresh Anand & Associates. He has proved the intimation u/s 143(1) of Income Tax Act dated 24.02.1997 filed by him for A2 showing her income as Rs. 69,900/ and payment CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 44/47 of tax as Rs. 5,970/. It is relevant to mention here that this document stands admitted by the prosecution as in the charge sheet item no. 12 where total income is calculated cognizance of this income has been taken. Similarly, in expenditure item no.
(l) pertains to income tax paid by A2 for the F.Y. 1996 - 97.
7.32. Broadly evidence led by prosecution against A2 has been discussed. As already discussed charge against her is that she has aided A1 in amassing disproportionate assets to the tune of Rs. 2,31,96,329/ against his known source of income. For the sake of arguments even if it is concluded by this court that various assets on the name of A2 were disproportionate to her known source of income which prosecution has been able to establish on record, can she be held guilty for abetting A1 for the commission of offence u/s 13(1)(e) R/w Section 13(2) of P.C. Act. As already discussed the offence punishable u/s 13(1)(e) of P.C. Act is the main / primary offence. In the considered view of this court, to held A2 guilty for the commission of offence punishable u/s 109 IPC R/w Section 13(1)(e) of P.C. Act, this court is first required to give finding of guilt against A1 for the commission of primary offence. It is only thereafter A2 can be held to be abettor of the primary offence. No doubt abetment of an offence is an independent offence. But keeping in view the nature of offence, to bring home allegations against the abettor first prosecution is required to establish commission of the main offence by the other accused person. In this case A1 having died CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 45/47 prosecution is held to have failed to prove primary offence u/s 13(1)(e) R/w Section 13(2) of P.C. Act against A1.
CONCLUSION 8.0. In view of the aforesaid reasons it held that prosecution has failed to prove its case against A2. A2 is thereby acquitted for the offences punishable u/s 109 IPC R/w Section 13(2) and 13(1)(e) of P.C. Act.
8.1. Accused is directed to submit SB/PB with same surety amount for sum of Rs. 20,000/ u/s 437A Cr.P.C.
Announced in the open court (SANJAY GARG-I) on 4th November, 2016 SPECIAL JUDGE-IV, CBI (PC ACT) TIS HAZARI COURTS, DELHI CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 46/47 CC No. 532260/16 CBI Vs. M.B. Pahari & Anr.
04.11.2016
Present: Sh. Anil Tanwar, Ld. PP for CBI.
A-1 already expired.
A-2 present on bail with Sh. Yogesh Verma, Ld. Counsel. Sh. Brijesh Garg, Ld. Counsel for Income Tax Department. Vide separate judgment announced today A-2 is acquitted for the offence punishable u/s 109 IPC R/w Section 13(2) and 13(1)(e) of P.C. Act. She is directed to furnish PB/SB in sum of Rs. 20,000/- u/s 437A Cr.P.C. Same is presented and accepted.
Ld. Counsel for Income Tax Department submits that two application moved by Income Tax Department dated 22.02.2002 and 23.02.2006 are pending disposal. Vide these applications the Income Tax Department is seeking attachment of the recovered cash amount by the CBI in this case to meet the tax demand levied by Income Tax Department on A-1 for A.Y. 1998-99 & 2000-01. On both these applications moved by Income Tax Department, A-1 has filed reply. Vide reply filed by A-1 dated 10.12.2006 he has categorically disowned the said cash amount seized by CBI.
Ld. Predecessor of this Court vide order dated 07.12.2009 after hearing both the parties on the application has observed that till the time matter is not finally disposed of, ownership of the recovered amount cannot be adjudicated upon and application was kept pending till disposal of the case.
Heard arguments.
Put up for orders on 10.11.2016.
(SANJAY GARG-1) SPECIAL JUDGE-IV, (PC Act) CBI, Tis Hazari Courts/04.11.2016 CC No. 532260/2016 CBI Vs. M.B.Pahari & Ors. Page No. 47/47