Delhi District Court
Cc 118/11 (Rc 1/07) Cbi vs . Ajay Kumar Shrotriya & Anr. 1 on 8 November, 2013
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
CC No. : 118/2011
RC No. : 01/2007
PS : CBI/EOU-VI/New Delhi
U/s : 120B r/w 217, 420, 465, 468 IPC and Section 13(2) r/w
13(1)(d) PC Act 1988 and substantive offences thereof.
Unique ID No. 02401R0046902009
C.B.I.
Versus
1. Ajay Kumar Shrotriya
S/o Shri G.S. Shrotriya
R/o B-578, MIG Flats, Loni Road, Delhi.
2. Krishan Lal Sachdeva
S/o Late Shri K.M. Sachdeva
R/o WZ-406R, Janak Park, New Delhi.
Date of FIR : 23.01.2007
Date of Institution : 31.01.2009
Arguments concluded on : 07.11.2013
Date of Judgement : 08.11.2013
JUDGEMENT
1. As per case of prosecution, a preliminary enquiry No. PE SIJ 2006 E 0003 was registered in CBI EOU-VI, New Delhi on 3-5-2006 against Shri Brij Pal Singh, Executive Engineer, West Zone, MCD and other unknown public servants and private persons in compliance to CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 1 the order dated 20.04.2006 passed by the Hon'ble High Court of Delhi in WP (C) No. 4582/2003 (Kalyan Sanstha Vs. Union of India & Others) to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. The said enquiry was marked to PW12 SI Arvind Kumar and on the basis of his findings, a complaint dated 23.01.2007 (Ex.PW12/A) was forwarded to Superintendent of Police, CBI EOU-VI for registration of FIR u/s 120B IPC r/w Section 13(2) r/w 13(1)(d) of PC Act, 1988 and Section 465 IPC against Ajay Kumar Shrotriya, JE West Zone MCD and other private persons for investigation. An FIR Ex.PW14/A bearing RC 1/2007 was accordingly registered and investigated by PW14 Inspector N. Mahato. Fifteen separate charge-sheets pertaining to 15 different properties in West Zone, MCD have been filed by prosecution. Accused Ajay Kumar Shrotriya, JE along with the owners/builders of the respective 15 properties have been arrayed as accused. It is interesting to notice that the premier investigating agency has only picked up the cases involving Ajay Kumar Shrotriya, JE who was on deputation from DDA to MCD from 06.05.02 to 30.09.03. No other officer from MCD i.e. JE/AE/EE/SE/DC has been charge-sheeted in any case defying the spirit of the order passed by the Hon'ble High Court pursuant to which investigation was commenced. The nexus is deeper but only illusory investigation has been conducted giving a clean chit to many other officials involved.
2. In brief, the contents of complaint dated 23.01.2007 made by SI Arvind Kumar on the basis of preliminary enquiry conducted by him CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 2 may be referred which forms the foundation of registration of FIR and subsequent investigation.
As per the complaint Ex.PW12/A by SI Arvind Kumar, enquiries revealed that 15 properties were booked for unauthorized construction by Ajay Kumar Shrotriya, JE West Zone, MCD, New Delhi which are detailed as under:
1) D-16, Fateh Nagar, New Delhi
2) D-15, Fateh Nagar, New Delhi
3) 24/13A, Tilak Nagar, New Delhi
4) 15/11A, Tilak Nagar, New Delhi
5) 16/23, Tilak Nagar, New Delhi
6) 22/23, Tilak Nagar, New Delhi
7) WZ-30, Krishna Park, New Delhi
8) WZ-23, Krishna Puri, New Delhi
9) WZ-150B, Krishna Park, New Delhi
10)4 Industrial Area, Tilak Nagar, New Delhi
11) C-16, Vikas Puri, New Delhi
12)WZ-406R, Janak Park, New Delhi
13)B-3/84, Paschim Vihar, New Delhi
14)A-5/11, Paschim Vihar, New Delhi.
15)Shop No.19, New Market, Ramesh Nagar, New Delhi.
It is further alleged that Ajay Kumar Shrotriya made false notings that partial demolition of the properties had been carried out in pursuance of demolition orders passed in respective files. The fact that notings were false is stated to be corroborated on comparison with the entries made in demolition register maintained in MCD, CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 3 demolition register of concerned police station, log books of the concerned vehicles of the MCD, the relevant letter of requisition for police force. It is further the case of prosecution that the enquiry also revealed that unauthorized construction files relating to above 15 properties were not taken out from the office of Officer In-charge (Buildings) {OI(B)} and entries were forged by Ajay Kumar Shrotriya having knowledge that no demolition had taken place.
As such, it is alleged that accused Ajay Kumar Shrotriya abused his official position to cause undue pecuniary advantage for himself or other private persons. Further, on the basis of Preliminary Inquiry, recommendation was made by SI Arvind Kumar for registration of regular case (FIR) against Ajay Kumar Shrotriya and other persons.
3. In the aforesaid background, on registration of RC (FIR) by CBI, the case was further investigated by PW14 Inspector N. Mahato and charge-sheet was filed u/s 173 Cr.P.C.
In nutshell, the case of prosecution on investigation, is that, accused Krishan Lal Sachdeva was in possession of property no. WZ 406-R, Janak Park which was originally a 427 sq. yards plot and the built up plot area was measuring about 237.22 sq. yards in the year 2002.
The property was booked "on completion/on complain" by Ajay Kumar Shrotriya, JE for unauthorized construction in the shape of four shops, toilet, kitchen, hall at GF AND three rooms, kitchen, toilet, store, lobby at FF and Second Floor vide FIR No. B/UC/WZ/02/423 dated 24.10.02 (Ex.PW2/A). An endorsement was CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 4 made on the FIR by Shri Gautam Chand, the then AE to take action as per DMC Act/BBL (i.e. Building Bye-Laws).
Accordingly, a show-cause notice u/s 344 DMC Act, 1957 dated 24.10.02 (Ex.PW2/C) was issued to the owner/builder under the signatures of Shri Gautam Chand, AE and thereby it was also directed to the owners/builders to stop the construction. The notice was served by way of affixation by Ajay Kumar Shrotriya, JE on 25.10.02 after seeking permission from the AE to serve the same by way of affixation, since the owner/builder refused to receive the same. Further, as no reply was received in the office of MCD to notice dated 24.10.02 (Ex.PW2/C), a further notice u/s 343 (1) of DMC Act, 1957 dated 31.10.02 (Ex.PW4/A) was issued under the signatures of Shri Gautam Chand, AE thereby directing the owner/builder of the property in question to demolish the unauthorized construction within six days of the receipt of the notice. The aforesaid notice was also served by way of affixation on 31.10.02 by Ajay Kumar Shrotriya in the presence of the witnesses after seeking permission from AE to serve the same by way of affixation since no responsible person was stated to be available at site. Finally, as the owner/builder did not respond to the aforesaid notices, a demolition order dated 07.11.02 (Ex.PW2/E) was approved by Shri Gautam Chand, AE on the proposal being put by Shri Ajay Kumar Shrotriya, JE. The file was further marked to OI(B).
It is further the case of prosecution that demolition action was fixed for 20.11.02 in the area of Janak Park. However, Ajay Kumar Shrotriya, JE mentioned in the noting on the file that "demolition CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 5 action could not be conducted due to shortage of time". The file was further put up before Shri Gautam Chand, AE(B) West Zone who countersigned the same on the same date.
It is further the case of the prosecution as mentioned in the charge sheet as under:
"Investigation further disclosed there is no entry relating to demolition of the said property made by A.K. Shrotriya, JE in the booking file of the property bearing No. B/UC/WZ/02/423. Sh. Ajay Kumar Shrotriya, JE fraudulently and dishonestly made an entry dated 3.12.2002 in the demolition register showing to have carried out and shown in the demolition register removal of Chhajja of WZ-406-R, Janak Park, New Delhi and did not raise any charges for causing demolition of the said property.
Investigation further disclosed that this property was falsely and intentionally shown to have been demolished on 3.12.2002 as per the entry made by Sh. A.K. Shrotriya on the demolition register maintained by the MCD. It was further shown that demolition had been undertaken by removing the chhajja. A.K. Shrotriya, JE entered in demolition file on 3.12.2002 that regarding property No.423/03 action had been taken but as per missilbe bund register the said property in the name of M-26, Kirti Nagar, the said area is under the jurisdiction of Sh. Sulaiman Khan, JE. During investigation has been revealed that Sh. A.K. Shrotriya, JE falsely entered in demolition register on 3.12.2002 in the property No.423/02. The actual booked against property No.406-R, Janak Park was in the jurisdiction of Ajay Kumar Shrotriya.
Investigation has further disclosed that this was a false entry CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 6 made in the demolition register by A.K. Shrotriya, JE with the intention of saving the property from demolition..............."
It is further the case of the prosecution that the entry was deliberately introduced and did not exist at the time of preparation of monthly statement of demolition for the month of December, 2002 which was prepared by Officer-in-Charge (Building). Also the demolition action was not reflected in the monthly action taken report prepared in the department. Further, it also transpired that MCD did not raise any demolition charges from the owner of the property in respect of the demolition shown to have carried on 03.12.02 and also JE never received any file from OI(B) for demolition. It is also the case of prosecution that as per demolition register maintained at PS Hari Nagar, the properties were demolished at L-Block, Anand Vihar, WZ-33, Virender Nagar, Scooter Market but the property was not demolished at WZ-406-R, Janak Park.
It is further the case of prosecution that during investigation the property in question was inspected by team of officers from CPWD and vide report No.3/10/2007-W/NDZIII/1533 dated 20.11.07 (Ex.PW9/B & 9/A), it was concluded that the property was built without any sanctioned plan and unauthorized construction of non- compoundable nature had taken place.
It is further alleged by the prosecution that the aforesaid demolition was not carried, in conspiracy with co-accused Krishan Lal Sachdeva and thereby Ajay Kumar Shrotriya abused his official position as public servant.
CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 7
4. Charge was framed against accused Ajay Kumar Shrotriya and Krishan Lal Sachdeva u/s 120(B) r/w Section 417/465/468/217 IPC r/w Section 13(2) alongwith Section 13(1)(d) of the Prevention of Corruption Act, 1988. Charge was further framed against accused Ajay Kumar Shartoriya for substantive offences u/s 417/465/468/217 IPC and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988.
5. In support of its case, prosecution examined fourteen witnesses, namely:
1) Shri Ashok Kumar, Vice Chairman, DDA
2) Shri Moti Lal, OI(B), West Zone
3) Shri Brij Pal Singh, Executive Engineer
4) Shri Gautam Chand, AE
5) Smt. Jagbiri Devi
6) Shri Dal Chand, Driver, MCD
7) Shri Surjeet Singh
8) Shri Jai Bhagwan, Baildar, MCD
9) Shri Jagmohan Swaroop, CPWD
10) Shri Lal Chand, Driver, MCD
11) Shri R.S. Rana, AGEQD
12) W12 SI Arvind Kumar, CBI
13) Shri Harbhajan Singh
14) Inspector N. Mahato (IO), CBI
(a) PW12 SI Arvind Kumar who conducted the preliminary
enquiry prior to registration of FIR deposed that he remained posted in EOU-VI from 2005 to 2009 and during his tenure, a preliminary enquiry was registered in CBI on 03.05.2006 in compliance to the orders dated 20.04.2006 passed by the Hon'ble High Court of Delhi in Writ Petition C(C) No. 4582/2003 to probe the nexus of MCD officers CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 8 in engineering department, builders and political bosses. Further, the said PE was entrusted to him and after enquiring the matter, 15 properties were selected in which it was found that demolition was carried out in papers. After verifying the facts, it was found that reports in MCD records were different than the actual facts. Further, during the enquiry, owners of respective properties were examined along with the record of MCD and respective police stations and it was found that Ajay Kumar Shrotriya JE West Zone MCD forged the documents having knowledge that no demolition had taken place and dishonestly made bogus entries in the relevant records. Further, accused Ajay Kumar Shrotriya being the public servant also abused his official position to cause undue pecuniary advantage for himself or other private person and accordingly, recommendation was made for registering a regular case u/s 120B r/w 13(2) r/w 13(1)(d) of PC Act and substantive offence u/s 465 IPC. He further stated that in this respect, complaint dated 23.01.2007 (Ex.PW12/A) comprising of four pages was written by him to the then SP Shri A.K. Ohri whose signatures are at point B on all the pages.
(b) PW1 Shri Ashok Kumar, the then Vice Chairman, DDA (i.e. the competent authority) accorded sanction for prosecution of accused Ajay Kumar Shrotriya, JE and proved the sanction order Ex.PW1/A.
(c) PW2 Shri Moti Lal, the then Officer In-charge (Building) MCD deposed that during the period May 2002 to November, 2004 he was posted as OI (Building) in West Zone and during the aforesaid assignment he was custodian of unauthorized construction files and CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 9 was maintaining circular files, movement register, demolition register, missalbandh register and also used to make entries regarding unauthorized construction in missalbandh register. Further, during his aforesaid assignment he had made various entries in missalbandh register regarding unauthorized construction.
He further stated that FIR No. B/UC/WZ/02/423 dated 24.10.02 (Ex.PW2/A) in respect of WZ-406R, Janak Park was lodged by the then JE Ajay Shrotriya under his signatures at point A and he ({OI(B)} had entered particulars of the FIR in missalbandh register (Ex.PW2/B1) at Sr. No.423 at point A. Further, the file was handed over to Ajay Kumar Shrotriya who issued show cause notice dated 24.10.02 (Ex.PW2/C u/s 344 DMC Act). He also identified the endorsement regarding service of notice made by Ajay Kumar Shrotriya on Ex.PW2/C to the effect "the notice has been pasted in the presence of following persons". He further identified signatures of Ajay Kumar Shrotriya at point A on the endorsement made on show cause notice dated 31.10.02 u/s 343 DMC Act (Ex.PW2/C1) issued to the owner/occupier of WZ-406R, Janak Park.
He further stated that demolition register (Ex.PW2/D1) was maintained by him during his tenure in the office and used to be kept in the office for the purpose of reporting of demolition by concerned JE. He further proved entry made at point A on page no. 5 of demolition order (Ex.PW2/E) maintained in unauthorized construction file of property no. WZ-406R, Janak Park bearing the signatures of Ajay Kumar Shrotriya.
He further stated that as per rule, the file should be handed over to him on the same day for arrangement of police force for demolition.
CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 10 Further, as per movement register (Ex.PW2/F) kept and maintained in the office, no file regarding any property was handed over to Ajay Kumar Shrotriya for action.
He further proved the endorsements dated 20.11.02 & 03.12.02 on demolition order (Ex.PW2/E) made by Ajay Kumar Shrotriya.
He further stated that the files regarding record of unauthorized building remained in his custody. Further, the programme for demolition used to be chalked out by the concerned XEN and the same was communicated to the concerned JEs/Asstt. Engineer. He also stated that he used to prepare the letter regarding levy of demolition charges and after procuring the signatures of concerned Asstt. Engineer, he used to send it to the owner/occupier for payment. Further, he never sent any letter to the owner/occupier of WZ-406R, Janak Park, Delhi for the demand of demolition charges.
He also stated that request regarding requisition of police force for the assistance in demolition was sent to concerned DCP/SHO of the area. Further, Action Taken Report against the unauthorized construction used to be prepared by him on the basis of demolition register which was usually written by the concerned JE.
He also proved Action Taken Report (Ex.PW2/G) bearing his signatures at point B on page no. 1,4,5 6,7 along with the signatures of the then EE, Sh. Kadyan at point A. He further stated that he used to prepare Action Taken Report on the basis of information provided in demolition register and missalbandh register which was maintained by him during his official course of duties. Further, the action taken report was sent to concerned Sr. Officers on monthly basis by him.
CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 11
(d) PW3 Shri Brij Pal Singh Executive Engineer, Central Zone, MCD deposed that he remained posted as EE from 16.04.02 till 09.05.03 in West Zone, Rajouri Garden, New Delhi and during the aforesaid period, he was looking after building department in the supervisory/administrative capacity. He further deposed that the office was maintaining missalbandh register through OI(B) on daily basis in which entries regarding unauthorized construction were maintained on the basis of feed back given by the concerned JE/AE of the area. Further, the missalbandh register used to be put up before him for formal closing on day to day basis and he used to put his signatures.
He also stated that monthly report was sent to the higher authorities for their information regarding day to day working and monthly progress. Further, programme regarding demolition of unauthorized construction was to be prepared by OI(B) on urgent basis and same was put up before him or concerned DC/Zone for intimation to concerned police station for the requisition of police force for the assistance in carrying out the demolition.
He further deposed that while sending monthly report to higher authorities, it used to contain information regarding opening balance of month in regard to unauthorized constructions, information about the demolitions/ sealing actions carried out during the previous month and booking of properties under 466 (A) of DMC Act and action taken against the properties under Section 344 of DMC Act. Further, all the information used to be provided by OI(B) and the same was countersigned by him (EE) for sending it to the higher authorities.
CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 12 He further stated that the Action Taken Report for the period January to May 2003 except February 2003, April 2002 to December 2002 and October 2002 were sent by him under his signatures at point A. Further, the reports forwarded were put up before him by the concerned OI(B) Shri Moti Lal which were prepared on the basis of original demolition register and all the ATRs were used to be annexed with particulars about demolition carried out in the previous month.
(e) PW-4 Gautam Chand deposed that he remained posted as AE in MCD West Zone, Rajouri Garden, Building Department from October 2002 to July 2004. Further, he identified signatures of Ajay Kumar Shrotriya at point A on FIR dated 24.10.02 (Ex.PW2/A) registered by MCD regarding unauthorized construction.
He further stated that Notice u/s 344 (1) DMC Act (Ex.PW2/C) was issued on the basis of FIR dated 24.10.02 and identified his signatures at point A. He also stated that another notice u/s 343 (1) of DMC Act (Ex.PW2/C1) was issued on 31.10.02 under his signatures. Further both the show cause notices dated 24.10.02 and 31.10.02 were taken by Ajay Kumar Shrotriya for service to the owner/occupier of property No. WZ-406R, Janak Park. He further proved the report on the back of notice dated 24.10.02 under the signatures of Ajay Kumar Shrotriya at point A regarding refusal by the owner/occupier of the property and further pasting of the same outside the premises.
He further proved demolition order dated 07.11.02 (Ex.PW2/E) issued in respect of property No. WZ-406R under the signatures of Ajay Kumar Shrotriya at point A and also bearing his signatures. He CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 13 further proved endorsement by Ajay Kumar Shrotriya at point B whereby he reported that demolition could not be conducted due to shortage of time on 20.11.02 and further stated that the file was sent back to OI (B) on 20.11.02. He also stated that he went to demolish the aforesaid property with Ajay Kumar Shrotriya on 03.12.02 but had not put any signatures on the report.
After seeing the monthly action taken report for the month of January, 2003 (Ex.PW4/B), he further stated that the demolition of property no. WZ-406R, Janak Park was not mentioned in action taken report for the month of January, 2003.
He also deposed that it had been recorded in the demolition register (Ex.PW2/D-1) at point X that shutters of ground floor were removed and no other demolition like puncture of slab/roof or walls etc. was conducted.
This witness was permitted to be re-examined by prosecution to clarify with respect to entry dated 03.12.02 made in the demolition register as he even supported during cross- examination to have visited the property along with JE on 03.12.02 for demolition action. It is pertinent to note that during re-examination, the witness clarified that there was discrepancy in reflecting the file number in respect of demolition action in the property in question in demolition register against entry dated 03.12.02 as the same was referred as 423/03 dated 24.10 whereas the UC file pertaining to the property in question bears the number UC/WZ/02/423 dated 24.10.02. It may be appropriate to refer at this stage itself that the unauthorized construction file number in respect of respective properties has been generally CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 14 referred in the entries in the demolition register by the seriatum of FIR number i.e. 423 followed by the year of registration of FIR i.e. 02 which is further followed by the date of registration of FIR i.e. 24.10.
(f) PW-8 Jai Bhagwan deposed that he remained posted as Beldar in MCD from 2002 to 2010 in building Department and also worked under Ajay Kumar Shrotriya. He stated that Shri Moti Lal was the O.I. (B) during the aforesaid period and his duties involved demolition of unauthorized structure and pasting of notices.
He further identified his signatures at point B on the back of the show cause notice under Section 344 (1) of MCD dated 24.10.2002 (Ex.PW2/C) which was pasted at property No.WZ 406 R, Janak Park, on 25.10.2002 in his presence by the concerned JE.
(g) PW10 Shri Lal Chand posted as Driver in Building Department, West Zone, MCD deposed that he used to ferry the officials and the police force as and when directed by the officers and used to maintain log book of the vehicle (Ex.PW6/A). Further, in case the truck was requisitioned by a particular officer, the same was reflected and the log book was also countersigned by the officer concerned in the relevant column.
He further stated that he had given his statement with respect to the placement of the truck on various dates as inquired by the CBI officials and as per entry dated 26.08.02 in the Log Book (Ex.PW6/A), he had taken the vehicle on the requisition of the then JE Shri A.K. Goel who visited PS Janakpuri to take police force for demolition. He CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 15 further stated that the said entry bears his signatures at point B and was also countersigned by Shri Goel at point C. He further stated that as per entry dated 31.12.02 in the Log Book, the vehicle was taken to workshop for repair with the permission of Shri U.C. Saxena, JE and further identified his signatures on the entry at point A and JE concerned at point B. He further stated that as per entry dated 03.12.02, the vehicle was requisitioned by Shri Ajay Kumar Shrotriya and he took the vehicle to P.S. Hari Nagar for taking police force for action and finally left the force at P.S. Hari Nagar and came back. He identified his signature at point A and signatures of Ajay Kumar Shrotriya at point B. He further stated that as per entry dated 27.02.03, the vehicle was taken to workshop for repair. Further, the vehicle was not taken for any demolition work on the aforesaid date.
He further stated that as per entry dated 27.03.03, the vehicle was booked by Shri Daljit Singh Hooda and the vehicle was taken to Subhash Nagar workshop for repair. Further, the vehicle was not taken for any demolition work on the aforesaid date.
He further deposed with reference to placement of vehicle on 19.09.02, 03.03.03 and 31.03.03.
(h) PW-6 Dal Chand deposed that he was working as driver since 1979 and in June, 2003 was posted in West Zone, Rajouri Garden, MCD to drive vehicle no. DDL 4607 (mini truck make Nissan). He further stated that his vehicle was attached with building department and same was used for carrying the labour/police personnel to the places in area where demolition work was to be undertaken. Further, CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 16 he used to take the vehicle on the place of demolition on the instructions of AE/JE and used to park the vehicle near the place of demolition. He further stated that when the demolition work was over, he used to take back the labour/police personnel with him to drop in the office.
He further stated that a log book was maintained to keep the record of plying of vehicle and he was maintaining it for official purpose. He further confirmed the placement of vehicle No.DDL 4607 on 09.06.03 and stated that on aforesaid date the vehicle was taken to Punjabi Bagh police station and from there to East Punjabi Bagh and then back to office. He also identified his signatures at point B on the aforesaid entry which was in his handwriting and further stated that the vehicle was requisitioned by JE Mohd. Ahmed who put his signatures at point A in column no. 12.
(i) PW9 Shri Jagmohan Swaroop, SE, CPWD proved the report Ex.PW9/A which was prepared on inspection of property in question in 2007 after registration of FIR reflecting the construction at site and the construction permissible as per building bye-laws, 1983.
(j) PW11 Shri R.S. Rana, AGEQD proved the handwriting report (Ex.PW11/B) comprising of seven pages along with detailed reasons.
He stated that documents of this case were referred by SP, CBI EOU-VI, New Delhi vide their letter no. 4664/3/1/2007/EOU-VI dated 10.6.08 (Ex.PW11/A) along with annexures. Further, after careful and thorough examination of the documents, he came to the conclusion which was expressed in the form of a report (Ex.PW11/B) comprising of seven pages along with detailed reasons which bears his CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 17 signatures at point B and signatures of Dr. B.A. Vaid, GEQD at point A who had also examined the case independently and came to the same conclusion. He also stated that the report was sent to CBI office vide letter no. CX-166/2008-1909 dated 31.12.08 and bears signatures of Shri B.A. Vaid at point A.
(k) PW5 Smt. Jagbiri Devi deposed that property No. 406, Janak Park New Delhi belonged to Shri Krishan Chand Sachdeva which was a three storeyed building and four shops were constructed in this building on the ground floor. Further, she owned one shop in the same building in which she was doing ironing work for the last fifteen years. She further stated that the shop was purchased from Surjeet Singh for Rs.3 Lacs, who collaborated with Shri Sachdeva and constructed two storeys. Further, Surjeet Singh got these shops as consideration from Sachdeva for undertaking construction work. She further deposed that she had never received any notice from MCD.
(l) PW7 Shri Surjeet Singh deposed that he met Krishan Lal Sachdeva in 2002 through one of his neighbours Kuldeep Singh who was related to him for the purpose of addition/alteration/renovation of house situated in Janak Park. Further, when he visited the premises of Krishan Lal Sachdeva, the construction consisted of 2-½ storey's and around three shops existed on the ground floor.
He further stated that he undertook renovation work of the premises and for the aforesaid purpose received consideration of Rs. 80,000/- alongwith three shops on the ground floor. Further, some documents were executed for aforesaid purpose.
He identified his photograph and signatures on the photocopy CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 18 of GPA (D-4) Ex.PW7/A, Will executed by Shri Krishan Lal Sachdeva Ex.PW7/B, Agreement to Sell Ex.PW7/C, receipt of Rs.80,000/- Ex.PW7/D, Special Power of Attorney Ex.PW7/E and Indemnity Bond Ex.PW7/F alongwith possession letter Ex.PW7/G. He further identified the photograph of Shri Sachdeva at point A and his photograph at point B alongwith his signatures on all the papers at point C on Agreement to Sell and possession letter.
He further stated that thereafter he sold two shops to Harbhajan Singh and Surjeet Singh through GPA (Ex.PW7/H) alongwith Deed of Will (Ex.PW7/I) and identified his signatures at point A on each page alongwith his photograph.
He also stated that one of the shops was also sold to Smt. Jagbiri Devi vide Agreement to Sell dated 08.01.2003 (Ex.PW7/J) and he also executed affidavit (Ex.PW7/K), receipt (Ex.PW7/L), possession letter (Ex.PW7/M), registered GPA (Ex.PW7/N) and Will (Ex.PW7/O) in favour of Smt. Jagbiri Devi. He further identified his signatures on all the documents at point A, his photograph at point B and photo of Jagbiri Devi at point C. He further stated that he had not received any notice from MCD from which it could be ascertained that the said shops were unauthorized. Further, he had not received any demolition notice or any other notice in this respect from MCD till the date he sold the shops to Harbhajan Singh and Surjeet Singh and third shop to Smt. Jagbiri Devi.
Further, till the shop remained in his possession, no demolition squad came to the shops for demolition.
(m) PW13 Shri Harbhajan Singh deposed that he was running an CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 19 electric goods shop at 406R, Janak Park, New Delhi since 2004. Further, he had purchased two shops in 2004 from Surjeet Singh son of Shri Pritam Singh in his name alongwith his son (Surjeet Singh s/o Harbhajan Singh).
He further stated that the said property was earlier purchased by Surjeet Singh son of Pritam Singh from K.L. Sachdeva and also proved the photocopy of GPA, Will, Agreement to Sell, Receipt, SPA, Indemnity Bond and Possession Letter dated 29.08.2002 executed by K.L. Sachdeva in favour of Surjeet Singh son of Pritam Singh (Ex.PW7/A to G). He also proved the photocopy of GPA and Will dated 06.09.2004 executed by Surjeet Singh son of Pritam Singh in favour of Harbhajan Singh and Surjeet Singh son of Harbhajan Singh (Ex.PW7/H & I).
He stated that no notice had been ever received from MCD regarding unauthorized construction in the property nor any demolition action had been taken by MCD.
(n) PW14 Inspector N. Mahato deposed that on 23.01.2007, he was posted at EOU-VI, New Delhi as Inspector and was entrusted with the investigation of complaint dated 23.01.2007 which was enquired at preliminary stages by SI Arvind Kumar and thereupon it was entrusted to him under the signatures of the then SP Shri A.K. Ohri at point A on FIR dated 23.01.2007 (Ex.PW14/A). Further, FIR was accompanied with the complaint of SI Arvind Kumar dated 23.01.2007 (Ex.PW12/A) vide which he was asked to investigate regarding unauthorized construction and demolitions carried out by accused A.K. Shrotriya during his posting in building department west zone of MCD New Delhi.
CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 20 He further stated that during the course of investigation, he obtained the search warrant from Spl. Judge, Tis Hazari Courts u/s 93 Cr.P.C and conducted search in the presence of independent witnesses and other team members at residence and office of Ajay Shrotriya. Further, he also collected various documents from MCD office Rajouri Garden, occupants/ builders of the buildings in question, office of CPWD. He further stated that he seized missalbandh register, log book, demolition register, attendance register etc. which in original have been exhibited in CC No.93/11 and copy of the same in the present case is as follows i.e. missalbandh register (Ex.PW2/B1), demolition register (Ex.PW2/D1), copy of log book (Ex.PW6/A), attendance register of JEs (Ex.PW14/C) and demolition register pertaining to PS Hari Nagar (Ex.PW14/B).
He also stated that he obtained opinion from GEQD regarding handwriting as per marks on various registers and documents and further the documents were forwarded for opinion in sealed cover vide letter dated 10.06.2008 (Ex.PW11/A) and also the report (Ex.PW11/B) was thereafter obtained.
He further stated that the property in question was also inspected by the officials from CPWD and he had accompanied the officials for aforesaid purpose and obtained report (Ex.PW9/A) from the concerned department.
He also stated that the unauthorized construction file was seized consisting of FIR, notices u/s 343/344 DMC Act and demolition order along with other relevant documents. Further, he joined the police officials from the concerned PS wherein a separate demolition register was also maintained at some of the Police Stations and relevant CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 21 documents were collected in this regard.
He further stated that as per investigation, the accused conspired for the purpose of fabrication of records and unauthorized construction was not demolished in the property in accordance with law.
6. In his statement u/s 313 Cr.P.C. accused Ajay Kumar Shrotriya denied the case of prosecution and claimed that he had been falsely implicated in this case. He further denied having made any false entry in the MCD record qua demolition action taken in the property. He also stated that the noting dated 03.12.02 did not bear signatures of Shri Gautam Chand, AE since he left the site after demolition and had not returned to the office and the file was returned to the OI(B) without his signatures. He further took a stand in his written statement u/s 313(5) Cr.P.C. that the demolition was carried in presence of Shri Gautam Chand, AE and he had been made a scapegoat with a view to defend the real culprits. He further examined DW1 Shri Babu Lal (Baildar) in defence.
Accused Krishan Lal Sachdeva also denied the case of prosecution and stated that he was owner of plot no. 43 of Khasra No. 1496 Village Tihar, New Delhi (Municipal No.WZ 406/R Janak Park, Hari Nagar) measuring 427.5 sq yards having built up area 237.22 sq. yards by virtue of conveyance deed dated 26.07.63 registered vide registration no.2241 in additional book no.1, volume 271 on pages 291-294 in the office of Sub-Registrar, Kashmere Gate, Delhi. Further, on 29.07.02, he entered into a collaboration agreement Ex.PW7/DX dated 29.07.02 with Sh. Surjeet Singh for construction at the said property and under the said agreement, Surjit Singh was CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 22 responsible for obtaining requisite permission from various authorities i.e. DDA, MCD, DESU etc. and was liable for any objection/challenge in regard to construction work at said property raised by these authorities. Further, Surjit Singh was given vacant possession of the said property for construction purpose and by virtue of collaboration agreement, Surjit Singh became owner of three shops at ground floor. He further stated that subsequently Surjit Singh sold three shops and kept entire sale proceeds with him and he (K.L. Sachdeva) had no concern with these shops.
DW1 Babu Lal deposed that he was posted in West Zone, Rajouri Garden, MCD in 2002-03 as Baildar and used to accompany Ajay Kumar Shrotriya, JE as and when directed by him and also used to take demolition action of unauthorized construction. Further, AE also used to accompany to the concerned property whensoever the demolition had to be carried. He further clarified that even if the police force was not available, the demolition action was taken as directed by JE. Further, if the official truck used to be out of order, they used to accompany the JE on cycle to the concerned property. During cross-examination, he also deposed that AE used to be Incharge of the demolition team.
7. Counsel for accused Ajay Kumar Shrotriya assailed the case of prosecution on various grounds detailed below and also filed written submissions on record:
a) That the sanction order Ex.PW1/A had been passed by PW1 Shri Ashok Kumar, Competent Authority against accused Ajay Kumar Shrotriya without application of mind.
CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 23
b) That Ajay Kumar Shrotriya had no occasion, motive or opportunity to obtain any pecuniary advantage and the investigating agency had malafidely implicated accused Ajay Kumar Shrotriya who was on deputation from DDA with MCD for a short period from 06.05.02 to 30.09.03 ignoring the role of all other JEs/AEs posted in West Zone, MCD.
c) It was also vehemently urged that there was no evidence to prove conspiracy between the accused and the same could not be inferred in the absence of any evidence to show meeting of minds. It was also submitted that no evidence had been led to show of passing of gratification or meeting of accused at any point of time.
d) Counsel for accused Ajay Kumar Shrotriya also urged that demolition charges were not to be claimed by Ajay Kumar Shrotriya since the same was the job of OI(B) and also no demolition charges were generally claimed for carrying out minor demolitions.
e) It was vehemently contended that the investigating agency had commenced the investigation only with the motive to fix Ajay Kumar Shrotriya, JE who had been on short period of deputation leaving aside the role of all other officials i.e. JE, AE, EE, SE or DC. It was urged that accused had been already acquitted in CC No.92/11, 111/11, 109/11, 114/11, 117/11, 107/11, 108/11, 116/11, 113/11, 115/11, 93/11, 112/11, 110/11 CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 24 & 119/11 wherein the prosecution had miserably failed to point out evidence of conspiracy or that the demolition action had not been taken by the accused. In the aforesaid context, it was pointed out that in the charge-sheet bearing CC No.117/11 arising out of FIR (RC) No.1/2007, the prosecution had relied upon statement of one Ramesh, baildar recorded u/s 161 Cr.P.C. who had admitted the carrying out demolition in property no. A5/11, Paschim Vihar involved in CC No.111/11 but the same was deliberately suppressed by the investigating agency in CC No.111/11 and accused stood acquitted therein considering the infirmities and motivated investigation.
It was also contended that in CC No.92/11 wherein accused has been acquitted by this Court, Ajay Kumar Shrotriya was arrayed as an accused despite the fact that he had been never posted in the Ramesh Nagar Ward wherein the property was alleged to have not been demolished by him. It was contended that this Court has already observed the serious lapses in investigation in aforesaid case and the accused stands acquitted.
f) It was submitted that the proceedings recorded in Unauthorized Construction File on 20.11.02 to the effect that demolition action could not be taken due to shortage of time, could not be doubted merely because the file was not reflected in the File Movement Register as the file had been duly marked to AE(B) Shri Gautam Chand on aforesaid date and the file was also duly countersigned by him on the same date.
CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 25 It was also contended that it could not be inferred that partial demolition action was not carried by Ajay Kumar Shrotriya on 03.12.02 merely because of inadvertent discrepancy in noting the file number as 423/03/24.10 instead of 423/02/24.10. It was submitted that the entry made in the demolition register as well as the UC file corresponded to the extent of demolition carried and the inference drawn by investigating agency that the entry of partial demolition action had been forged, is contrary to the facts on record. Reliance was also placed on statement of of PW2 Shri Moti Lal who admitted in several cases having missed the making of entries of several cases due to overload of work in the file movement register and other record, wherein demolition had been carried.
It was also submitted that the file never stood closed by mere entry dated 03.12.02 made in the UC file as well as demolition register whereby partial demolition action was taken by Ajay Kumar Shrotriya. It was also contended that investigating agency has not booked the AE or any subsequent JE/AE posted after transfer of Ajay Kumar Shrotriya for failing to take further demolition action since the unauthorized construction file (i.e. UC file) was never closed by mere part demolition action reflected vide entry dated 03.12.02 in UC file. The demolition action was also claimed to have been supported by PW4 Shri Gautam Chand, AE.
g) It was also submitted that it had come up on record in several cases that even the JE could visit the property in question for taking demolition action against the unauthorized CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 26 construction without police force and with the available staff of MCD.
It was also submitted that the entries made in the demolition register at PS Hari Nagar reflecting the demolition action on 03.12.02 in L-Block, Anand Vihar and WZ-33, Virender Nagar, Scooter Market did not lead to an inference that the action had only been taken in two properties since the concerned official at PS Hari Nagar who had made the entries had not been examined and it was generally reflected in the register in other entries that the demolition had been carried out or could not be carried out without reflecting the property numbers. It was further submitted that as per entry dated 03.12.02 in the demolition register of MCD, demolition had been reflected in other properties apart from SL-7L, Hari Nagar and WZ-33, Virender Nagar but the same had not been challenged by the investigating agency though the same are also not reflected in the demolition register maintained at PS Hari Nagar.
h) It was also contended that the inference could not be drawn that partial demolition action had not been taken on 03.12.02 on the basis of inspection conducted in 2007 by CPWD reflecting the existing construction as it could not be ruled out that the repairs/renovation may have been carried of the portion which had been partially demolished, in the intervening period of about five years.
i) It was also urged that Ajay Kumar Shrotriya had been CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 27 posted in the concerned Ward No. 19 for a short duration from 07.10.02 to 20.01.03 and the investigating agency had made him a scapegoat ignoring the role of the officials posted prior to him and after his transfer from the concerned ward though they failed to initiate any demolition action or register FIR for unauthorized construction. It was also pointed out that Shri U.C. Saxena and Mohd. Ahmed who were posted prior to Ajay Kumar Shrotriya and failed to take any action AND further Shri Krishan Kumar, Shri R.P.S. Nain, Shri S.K. Anand and Shri D.B.S. Hooda who were posted after transfer of Ajay Kumar Shrotriya from concerned ward were given clean chit though they failed to initiate any action. However, to fix Ajay Kumar Shrotriya, the partial demolition action itself was challenged though the file never stood closed.
j) Counsel for accused Ajay Kumar Shrotriya also relied upon John Pandian Vs. State Rep. by Inspector of Police, T. Nadu, MANU/SC/1025/2010 : 2011(1) JCC 193 in support of the contentions made by him.
Counsels for accused Krishan Lal Sachdeva submitted that there could not have been any conspiracy with Ajay Kumar Shrotriya in particular since different JEs were posted prior to booking of the alleged construction by MCD and after passing of demolition order and no evidence has been led on record to show the meeting of minds with Ajay Kumar Shrotriya in particular or any other MCD official. It was also contended that there is absolutely no evidence to reflect that the accused was known to Ajay Kumar Shrotriya, JE or had ever met CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 28 him or if any gratification had been passed. It was also contended that the accused Krishan Lal Sachdeva had absolutely no role in making of any entries in the records of MCD which are in possession of the MCD officials. It was further contended that the name of the owner/builder was not reflected in notices u/s 343/344 DMC Act, 1957. It was also submitted that Krishan Lal Sachdeva had entered into collaboration agreement for renovation of premises with Surjit Singh and had further handed over three shops as part of consideration to Surjit Singh prior to even registration of FIR by MCD on 24.10.02. Further, even one of the shops was sold by Surjit Singh to PW5 Jagbiri Devi vide GPA dated 08.01.03. In view of above, the entry in respect of demolition action with respect to removal of shutters of shops would have benefited Surjit Singh rather than accused Krishan Lal Sachdeva who is stated to be a senior citizen aged above 80 years at present. It was contended that for the reasons best known the investigating agency arrayed Surjit Singh as a witness despite being aware of the above factual position.
On the other hand, ld. PP for CBI vehemently contended that the entry dated 20.11.02 & 03.12.02 in the demolition register were falsely made in conspiracy by Ajay Kumar Shrotriya in order to help accused and save the property from demolition. It was further contended that the contradictions in the testimony of witnesses were of minor nature and did not discredit the statement of the witnesses in entirety. It was also submitted that the entry dated 03.12.02 pertaining to carrying of partial demolition action was forged and fabricated in MCD records by Ajay Kumar Shrotriya as it is not supported by the corresponding entry in demolition register. Apart from above, reliance CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 29 was also placed on the inspection report prepared by CPWD in the year 2007 after the registration of FIR/RC by CBI which reflected the unauthorized construction in the property.
8. I have heard Shri Y. Kahol, Advocate for accused Ajay Kumar Shrotriya, Shri Rahul Khurana, Advocate for accused Krishan Lal Sachdeva, ld. PP for CBI at length and perused the record.
Before deliberating upon the evidence on merits, the scope of Section 120B IPC may be briefly noticed, as the foundation of the prosecution case is that the entry dated 20.11.02 & 03.12.02 was forged by Ajay Kumar Shrotriya in furtherance of conspiracy with co- accused and it was wrongly reflected that the demolition action had been partly taken in the property, to safeguard the same from demolition. It is also necessary to find out in this case as to whether the accused Ajay Kumar Shrotriya abused his position and acted dishonestly or with a corrupt or oblique motive.
Criminal conspiracy has been defined in Section 120A of the Indian Penal Code and Section 120B provides punishment for the same. A conspiracy must be put to action, inasmuch as, so long a crime is generated in the mind of the accused, it does not become punishable. The offence is said to have been committed only when the thoughts take concrete shape of an agreement to do or cause to be done an illegal act or an act although not illegal by illegal means. The gist of the offence of the conspiracy lies in agreement being the essential element and mere knowledge of the plan is not per se enough. It also needs to be taken into account that the acts or the CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 30 conduct of the parties must be cautious and clear enough to infer their concurrence as to common design and its execution. Also the incriminating circumstances must form a chain of events from which conclusion about the guilt of the accused could be drawn.
For the purpose of bringing the charge of criminal conspiracy read with other sections for which the accused has been charged, the prosecution is required to show the circumstances on which it could be inferred that the accused had hatched a conspiracy. Though often the conspiracy is hatched in secrecy and for proving the offence direct evidence may not be possible to obtain but in aforesaid eventuality the circumstances need to be proved which may lead to an inference that the accused acted in conspiracy. It has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence.
The principles laid down for ascertaining the conspiracy as referred in para 40 & 41 of (2009) 8 Supreme Court Cases 617 State of Madhya Pradesh vs. Sheetla Sahai and Others may aptly be quoted:
"40. In Kehar Singh v. State (Delhi Admn.), this Court has quoted (at SCC p. 731, para 271) the following passage from Russell on Crimes (12th Edn., Vol.1) The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 31 between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.
41. In State (NCT of Delhi) v. Navjot Sandhu this Court stated the law thus: (SCC p.691, para 101) One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
9. Since accused Ajay Kumar Shrotriya is also alleged to have abused his position and by corrupt or illegal means obtained pecuniary advantage, it may be relevant to refer to observations made by the Hon'ble Apex Court in S.K. Kale vs. State of Maharashtra AIR 1977 Supreme Court 822 with reference to Section 5(1)(d) of the Prevention of Corruption Act, 1947. It was therein held that the abuse of position in order to come within the mischief of the section must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It was further held that it is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 32 In the aforesaid context, since the conspiracy has been inferred on circumstantial evidence, it may be apt to refer to the observations of the Hon'ble Supreme Court in para 21 & 22 of S.P. Bhatnagar and Another vs. The State of Maharashtra AIR 1979 Supreme Court
826.
"21.................It would be well to bear in mind the fundamental rule relating to the proof of guilt based on circumstantial evidence which has been settled by a long line of decisions of this Court. The rule is to the effect that in cases depending on circumstantial evidence there is always the danger that conjecture or suspicion may take place of legal proof. In such cases the mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely it is, considering such matters, to over-reach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.
22. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 33 to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
10. Now, adverting to the charge-sheets filed by the prosecution, the evidence fairly needs to be assessed in the background that though the directions issued by the Hon'ble High Court in WP(C) 4582/2003 directed to probe the nexus of MCD officers including suspects with the hierarchy in the Engineering Department, builders and political bosses but the investigation has been intentionally confined to the cases involving accused Ajay Kumar Shrotriya, the then JE on deputation from DDA to MCD for a period of less than one and a half years. The posting of Ajay Kumar Shrotriya in the respective wards in the West Zone involving the 15 properties investigated by CBI has been for short periods revolving for few weeks to few months. The role of the other JEs, AEs, EE during whose tenure some of the properties may have substantially come up and who failed to take any further demolition action after transfer of Ajay Kumar Shrotriya from concerned ward has been completely overlooked by the investigating agency and investigation has been focused only in respect of the entries of partial demolition action made by Ajay Kumar Shrotriya in respect of the aforesaid 15 properties. It is pertinent to note that the files never stood closed by entries made by Ajay Kumar Shrotriya reflecting partial demolition action CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 34 during his posting in respective wards. The further demolition action required to be taken has been completely ignored by the succeeding JEs including the AEs & EE who were equally responsible to take the demolition proceedings to logical end.
The investigation and circumstances reflect a clear partisan role taken by the investigating agency in picking up selective cases pertaining to Ajay Kumar Shrotriya and ignoring all other aspects of investigation in blatant violation of the directions for investigation issued by the Hon'ble High Court.
However, the same does not lessen the responsibility of Ajay Kumar Shrotriya, JE and each respective case requires to be scrutinized independently to assess if the entries for partial demolition were forged by him in conspiracy.
It may also be relevant to observe at this stage that accused Ajay Kumar Shrotriya has already been acquitted in CC No.92/11, 111/11, 109/11, 117/11, 114/11, 107/11, 108/11, 116/11, 113/11, 115/11, 93/11, 112/11, 110/11 & 119/11 wherein the prosecution failed to prove conspiracy beyond reasonable doubt or that the entry of partial demolition action had been forged by him. In CC No. 92/11, Ajay Kumar Shrotriya was arrayed as an accused by investigating agency despite the fact that he had never been posted in Ramesh Nagar Ward and the prosecution miserably failed to prove that demolition entry in respect of property concerned was forged by him.
It may also be noticed that the prosecution also filed applications for withdrawal of six cases against Ajay Kumar CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 35 Shrotriya & others under Section 321 Cr.P.C. including present case but the same were declined as the applications were not filed in other similar cases based on analogous evidence and were contested by prosecution.
11. Keeping in view the principles referred to in the preceding paragraphs, observations made in para 10 above and the period of posting of Ajay Kumar Shrotriya in the ward in question, the circumstances relied upon by the prosecution may now be assessed to see whether they factually exist and, if so, whether they are of a character to be wholly incompatible with the innocence of the accused and consistent with their guilt.
Evidence has been led on record in defence in several cases including CC No.107/11 & 108/11 whereby the posting of Ajay Kumar Shrotriya and other JEs in the concerned ward no. 19 wherein property in question is located as per FIR has been revealed for the period 2002-03 as under:
Ward No. Name of JE's Tenure of JE's in said Ward
Sh. U.C. Saxena 02.07.02 to 14.08.02
Mohd. Ahmed 14.08.02 to 07.10.02
19-20 Sh. Ajay Kumar Shrotriya 07.10.02 to 20.01.03
Sh. Krishan Kumar 20.01.03 to 30.04.03
Sh. R.P.S. Nain 30.04.03 to 18.06.03
Sh. S.K. Anand 18.06.03 to 08.08.03
Sh. D.B.S. Hooda 08.08.03 onwards
The aforesaid chart clearly reflects that Ajay Kumar Shrotriya CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 36 was posted in concerned ward only for a short period from 07.10.02 to 20.01.03. The property in question was booked for unauthorized construction on 24.10.02 by Ajay Kumar Shrotriya and it was reflected on FIR (Ex. PW2/A) "on completion/on complain". The unauthorized construction was further reflected in the shape of four shops, toilet, toilet, kitchen, hall at GF AND three rooms, kitchen, toilet, store, lobby at FF and Second Floor. The controversy has been narrowed down by the investigating agency to entry dated 20.11.02 made by Ajay Kumar Shrotriya on demolition order (Ex.PW2/E) in UC file whereby it was observed that demolition action could not be taken due to shortage of time AND entry dated 03.12.02 further made thereafter whereby it was observed that "partly action taken at GF; removed the shutters at GF" in the property in question. Apart from doubting the aforesaid entries, the investigating agency has observed that on 03.12.02, no entry was made by Ajay Kumar Shrotriya with respect to demolition of property in question and an entry had been made in respect of file number "423/03/24.10 which pertains to M-26, Kirti Nagar and the said area is under jurisdiction of Shri Suleman Khan, JE.
Before deliberating upon the aforesaid entries in the subsequent paras, it may be observed at this stage itself that the investigating agency has overlooked the role of other JEs/AEs during whose tenure, the unauthorized construction had come up as well as role of succeeding JEs/AEs/EE who had failed to initiate the demolition action against unauthorized construction after transfer of Ajay Kumar Shrotriya from concerned ward on 20.01.03 though the file never stood closed vide entry dated 03.12.02 made in the demolition register. Shri Ajay Kumar CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 37 Shrotriya was merely posted for about three and a half months w.e.f. 07.10.02 and had booked the property for unauthorized construction by way of FIR (Ex.PW2/A) on 24.10.02 itself.
12. It may next be observed that notice u/s 344 (1) DMC Act, 1957 dated 24.10.02 (Ex.PW2/C) as well as 343 DMC Act, 1957 dated 31.10.02 (Ex.PW4/A) were issued under the signatures of Shri Gautam Chand, AE as per record of MCD. The aforesaid notices were further served on the owner/builder of the property by way of affixation by Ajay Kumar Shrotriya, JE after obtaining the approval from Shri Gautam Chand, the then AE. The demolition order (Ex.PW2/E) dated 07.11.02 was thereafter passed as proposed by Ajay Kumar Shrotriya, JE and approved by Shri Gautam Chand, AE. The proceedings till aforesaid stage have not been disputed by the investigating agency.
Prosecution has disputed entry dated 20.11.02 made by Ajay Kumar Shrotriya, JE in UC file whereby it was observed on the demolition order Ex.PW2/E to the effect "demolition action could not be conducted due to shortage of time". The case of the prosecution is that the aforesaid entry dated 20.11.02 made in UC file on Ex.PW2/E has been wrongly made since the file was not taken by Ajay Kumar Shrotriya and demolition action on aforesaid date was fixed at Mayapuri.
At the outset, it may be observed that so far as aforesaid entry dated 20.11.02 in the UC file is concerned, the proceedings undertaken on aforesaid date cannot be disputed since the same CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 38 stand countersigned by Shri Gautam Chand, AE(B) on 20.11.02. In case there was any doubt as to the entry made by Ajay Kumar Shrotriya, the same would also have been commented upon by Shri Gautam Chand, AE(B) but he simply countersigned the file. The fact that Ajay Kumar Shrotriya visited for demolition action in the area of PS Mayapuri on 20.11.02, cannot be doubted since the entries have been duly made in the demolition register and even the time taken has been reflected. Even as per the entry dated 20.11.02 made in the log book by Shri Lal Chand, Ajay Kumar Shrotriya, JE had visited from the office at West Zone to PS Mayapuri for obtaining police force and, thereafter, returned back to office after taking demolition action. There does not appear to be any reason to presume that entry dated 20.11.02 is fabricated as the JE did not approach PS Hari Nagar for obtaining the police force due to shortage of time as reflected in entry dated 20.11.02. The inference drawn by the investigating agency that the action was intentionally not taken is not corroborated by the circumstances and evidence on record. In case any such entry was wrongly made, then obviously Shri Gautam Chand, AE who was the officer concerned and was also responsible for demolition action would also have been chargesheeted by the investigating agency. In the facts and circumstances, merely on the basis of entry dated 20.11.02, it cannot be inferred that the same had been wrongly recorded and the demolition action was intentionally not carried out on 20.11.02. It also cannot be assumed that the file was not taken up by Ajay Kumar Shrotriya on 20.11.02 as the same was duly signed by Shri Gautam Chand, AE on the same date. Even otherwise, no CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 39 complaint was made by OI(B), in case the file was not handed over by him to JE on 20.11.02. In the facts and circumstances, the prosecution has failed to prove that the proceedings on 20.11.02 were fabricated by Ajay Kumar Shrotriya, JE.
13. The investigating agency has further disputed the entry dated 03.12.02 made by Ajay Kumar Shrotriya, JE on demolition order (Ex.PW2/E) in the Unauthorized Construction File whereby it was observed "partly action taken at GF; removed the shutters at GF". The said entry dated 03.12.02 is alleged by prosecution to be concocted by Ajay Kumar Shrotriya without actually carrying the demolition as no corresponding entry had been made in the demolition register. It is also the case of prosecution that an entry in demolition register on 03.12.02 reflecting file number 423/03 dated 24.10 related to property no. M-26, Kirti Nagar which fell under jurisdiction of Suleman Khan, JE.
To appreciate the stand taken by the prosecution, it may be noticed that the unauthorized construction file number of this case is "423/02 dated 24.10.02". 423 is the seriatum of FIR number followed by the year of registration of FIR (i.e. 02) which is further followed by the date of registration of FIR (i.e. 24.10). However, the entry recorded in demolition register is to the effect "423/03/24.10-removed shutters at GF".
On the face of record, it appears that there is a slip in mentioning the file number by JE as 423/03/24.10 instead of 423/02/24.10, since no such unauthorized construction file number 423/03/24-10 had even come into existence on 03.12.02. Even no FIR by aforesaid number i.e. 423/03 was recorded on 24.10.03 and CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 40 the FIR number 423/03 was recorded on 29.07.03 relating to M26, Kirti Nagar. As such, even the property relating to UC file number 423/03 dated 29.07.03 (i.e. M26, Kirti Nagar) could not have been protected vide aforesaid entry as the file number relating to aforesaid property could not be numbered as 423/03/24-10. It may also be noticed that property no. M26 fell in the area of Kirti Nagar under jurisdiction of another JE and Shri Ajay Kumar Shrotriya had not been posted in the aforesaid ward and there could not be any probable reason for making entry relating to property falling in another ward. The fact that entry dated 03.12.02 in demolition register related to property no. WZ-406R, Janak Park appears to be probable as an entry was also made in UC file of the property in question on 03.12.02 reflecting "removed the shutters at GF" and the same corresponds to entry recorded in the demolition register. The Investigating Officer appears to be trying too hard to make out a case against Ajay Kumar Shrotriya as even in the charge sheet, the role of Ajay Kumar Shrotriya in making entry dated 03.12.02 is wrongly alleged as detailed in para 3 above. It is wrongly described in the charge sheet that Ajay Kumar Shrotriya fraudulently made an entry dated 031202 in demolition register showing to have carried removal of chhajja though no such entry exists in demolition register.
The prosecution has also submitted that on the aforesaid date, the action had been taken by Ajay Kumar Shrotriya only in L-Block, Anand Vihar and WZ-33 Vierender Nagar which are reflected in the demolition register maintained at PS Hari Nagar and aforesaid two properties have also been reflected in CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 41 demolition register of MCD. It is contended that since the property number WZ-406R, Janak Park is not reflected in the register maintained at PS Hari Nagar, the action had not been taken by JE and the proceedings had been fabricated.
The aforesaid contention raised by the prosecution also appears to be without any merit. A mere perusal of entry dated 03.12.02 made in demolition register by Ajay Kumar Shrotriya, JE would reflect that apart from action taken in SL-7L, Hari Nagar and WZ-33 Virender Nagar, the demolition action is also reflected in respect of file number 414/02/11.10.02, 421/02/24.10, 424/02/24.10, 434/02/24.10 AND the disputed entry 423/03/24.10. The prosecution for the reasons best known has not challenged the action taken in the unauthorized construction files relating to 414/02/11.10.02, 421/02/24.10, 424/02/24.10, 434/02/24.10 though the said files also do not find mention in the demolition register maintained at PS Hari Nagar but has only disputed the entry relating to 423/03/24.10. It may also be noticed that no police officials from PS Hari Nagar who had made the relevant entries in the demolition register maintained at PS Hari Nagar has been examined by the investigating agency to confirm in case the demolition action had not been carried in the properties which are further reflected in the demolition register maintained by MCD. It may also be noticed that it cannot be ruled out that the complete property details in which the demolition is carried was not reflected in demolition register maintained at PS Hari Nagar since generally in the register it is recorded whether the demolition was carried out or could not be carried out. By no stretch of imagination, it appears that entry no. 423/03/24.10 related to CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 42 property no. M-26, Kirti Nagar which was later on booked on 29.07.03 was intended to be made by Ajay Kumar Shrotriya and the same simply appears to be an error in recording the file number as "423/03/24.10" instead of "423/02/24.10".
The aforesaid inference is further corroborated by evidence of PW4 Shri Gautam Chand, AE who categorically deposed that he visited the property along with JE on 03.12.02 for demolition action. It is pertinent to note that during re- examination by ld. PP, the witness also clarified that there was discrepancy in reflecting the file number in respect of demolition action in the property in question in demolition register against entry dated 03.12.02 as the same was referred as 423/03 dated 24.10 whereas the UC file pertaining to the property in question bears the number UC/WZ/02/423 dated 24.10.02. In case the aforesaid entry would have been falsely recorded, the AE concerned would also have been charge sheeted as he is also the Incharge of demolition team.
It is imperative to notice that demolition action was not taken after transfer of Ajay Kumar Shrotriya and the conspiracy obviously would also have been with the JE/AE/EE posted during aforesaid time rather being only confined with Ajay Kumar Shrotriya since the UC file did not stand closed. The evidence on the point of conspiracy shall be discussed in detail in the subsequent paras but suffice to point out that there is no conclusive evidence on record to show as to the meeting of minds between Ajay Kumar Shrotriya and co-accused Krishan Lal Sachdeva and the inference as to conspiracy with Ajay Kumar Shrotriya is only based upon entry dated 20.11.02 & 03.12.02. The CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 43 root of the prosecution case, as such, appears to be on a slippery ground.
14. It may also be appropriate to point out that in connected cases decided by this Court including CC No.114/11 (CBI vs. Ajay Kumar Shrotriya/Krishna Pahwa) in which the accused have been acquitted as well as in other cases, it has also come on record in testimony of Brij Pal Singh, the then EE that demolition action could be carried by JE concerned without police force in an ongoing unauthorized construction. In the aforesaid case, it has also been brought on record in testimony of Umesh Singh, Baildar that they used to demolish the unauthorized construction even without the aid of police force wheresoever it was directed by JE concerned and they also used to visit the property by their personal conveyance as it was not necessary to commute in official vehicle provided by MCD. Shri Umesh Singh, Baildar examined as PW1 in CC No.109/11, PW4 in CC No.112/11 and as PW4 in CC No.110/11 by prosecution also made a similar statement to aforesaid extent in said cases.
In the aforesaid context, PW 2 Shri Vijay Kumar Kadyan, Executive Engineer in his cross-examination dated 03.01.12 in CC No.93/11, deposed that demolition may be carried by JE without police assistance.
It may also be noticed that DW1 Shri Babu Lal, Baildar examined in defence by Ajay Kumar Shrotriya in CC No.110/11 who is also a witness to service of notices u/s 344 & 343 DMC Act in several cases stated that they used to visit the property with police force as well as without police force and AE used to be the Incharge of demolition. He also stated that in case the official vehicle was CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 44 unavailable they used to reach by their own vehicle along with the concerned JE. Even in the present case, Shri Babu Lal, Baildar has been examined in defence and deposed on similar lines.
In view of above, it has also been established that the JE could even visit the property for demolition action without the police aid and the entries cannot be presumed to be forged merely on aforesaid account.
15. Also, PW2 Shri Vijay Kumar Kadyan, the then EE(B) in CC No.93/11 corroborated in his cross-examination dated 03.01.12 (page
2) that the unauthorized construction file is not closed by mere part demolition and complete unauthorized construction is to be removed within the purview of Building Bye-Laws. He also deposed that demolition action can be taken by a JE even without taking the file relating to unauthorized construction at spot in cross- examination dated 03.01.12 on page 1.
It has also come up in evidence of Shri Vijay Kumar Kadyan, EE (B) in CC No. CC No.116/11 (on page 7 of cross-examination dated 11.04.12) that the Incharge of demolition squad is AE and it is the duty of AE at site what action is to be taken with respect to unauthorized construction at site and the responsibility of taking the complete demolition action lies with the AE. He also clarified therein on page 8 of his cross-examination dated 11.04.12 that there has to be specific order for closing of the file by AE concerned and the file is not closed till demolition action is taken against the unauthorized construction or the same is regularized.
CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 45 It may also be noticed that PW Vijay Kumar Kadyan examined in other cases including CC No.107/11 deposed on similar lines and also clarified that JE is not the officer authorized to close the file and the same is closed by AE.
The testimony of other JEs examined on behalf of prosecution in other cases is also to similar effect. PW7 Shri Umesh Chand Saxena, the then JE(B) in CC No.107/11 also stated in his cross- examination dated 19.04.12 (page 4) in aforesaid case that till the time unauthorized construction file is closed, the action for demolition can be again taken.
In the light of evidence led on record, it can be safely inferred that the unauthorized construction file never stood closed by the aforesaid partial demolition action recorded vide noting dated 03.12.02 in the UC file made by Ajay Kumar Shrotriya. Thus, on the basis of aforesaid entry, it cannot be concluded in the facts and circumstances that the proceedings had been fabricated by Ajay Kumar Shrotriya.
16. It is also imperative to point out that mere reflection of movement of files by OI(B) in the 'file movement register' for purpose of demolition action on the date fixed for demolition does not appear to be conclusive to determine that the demolition action had not been taken. As per contention made by ld. PP for CBI, the movement of the files was recorded in the file movement register only in case the demolition action was scheduled with police force as per monthly CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 46 programme. In view of above, the movement of files on the dates other than fixed for scheduled demolition was not recorded and the the UC files in custody of OI(B) could have been taken by the JEs/AEs for any other proceedings without recording in the file movement register. The possession of the UC file being obtained by JE without entry in the movement register is probable and no adverse inference can be drawn merely because the movement of file was not reflected in the file movement register. It may also be noticed that the custody of the files and demolition register maintained by MCD remains with OI(B) but no explanation has come as to how the files could have been accessed by Ajay Kumar Shrotriya if the same remained in possession of OI(B). Further, no complaint was lodged by AE(B) or EE in case the demolition action had been wrongly shown by Ajay Kumar Shrotriya in the file.
It may also be mentioned that only the attested copies of file movement register have been produced by the investigating agency and the original register has not been brought on record.
17. It may also be noticed that a mere non entry of the file in the movement register or the action taken report or the missalbandh register or demolition claim charge register does not automatically lead to an inference that the entries for partial demolition action had been forged by the JE. The same needs to be assessed in the light of other circumstances and evidence on record.
It is imperative to note that during cross-examination of Moti Lal {the then Officer Incharge (Buildings)} examined as CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 47 PW12 in CC No.110/11, it has been brought on record that various entries existing in the demolition register were not supported by corresponding entry in the missalbandh register, file movement register, demolition charge register which may be due to negligence or oversight by OI(B) but were not disputed or charge-sheeted by Investigating Agency. The aforesaid aspect has been admitted by PW12 Moti Lal in his cross-examination dated 19.03.12 page no.
16 in CC No.110/11 to the effect that:"There is an entry in demolition register dated 19.03.03 in respect of properties no. 14/9 and 10/62 Punjabi Bagh but there is no corresponding entry in missalbandh register, file movement register, demolition charge register. I cannot say anything about the entry in ATR since the same for the said period is not available on judicial record. Similar is my reply in respect of property no. D-12 Rajouri Garden, 10/62 West Punjabi Bagh, 21/98 West Punjabi Bagh, 34/75 West Punjabi Bagh, 2A/DG2 Vikaspuri-II, B-98 Kirti Nagar, 9/50 Kirti Nagar, X-5 Kirti Nagar and B-2/133 Janakpuri. These entries might have been left out due to over burden of work."
It is also pertinent to note that during cross-examination of PW2 Moti Lal in the present case, the counsel for accused also pointed out the missing entries in the file movement register and the action taken report which were admitted by PW2 Moti Lal to have been missed by him due to overload of work. In the aforesaid context, cross-examination of PW2 Moti Lal dated 05.01.12 on page no.3 may be noticed:
CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 48 "It is correct that the entries mentioned in demolition register Ex.PW2/D for 09.10.02 pertaining to property no. 23, Punjabi Bagh for 17.10.02 (pertaining to property No. C-40 Kirti Nagar) is not entered in the movement register Ex.PW3/D (exhibited in CC No.93/11). It is correct that in spite of the aforesaid missing entries in the movement register, the demolition is shown to have been carried and as such the demolition register could have been obtained without the corresponding entries in the movement register. (Vol. The said entries may have been missed due to overload of work)." He also admitted on page 5 of the cross- examination dated 05.01.12 to the effect "It is correct that entry dated 07.11.2002 pertaining to property no. C-3/396, Janak Puri in the demolition register is not mentioned in the Action Taken Report for the month of November, 2002. It is also correct that entry dated 25.11.02 pertaining to property no. C-5C-19 Janak Puri, C-5C-36A, Janak Puri and C-3/375, Janak Puri in the demolition register is not mentioned in the action taken report for the month of November, 2002. There is a possibility that there may be further entries in the demolition register which may not have been mentioned in the action taken report. I cannot say in case the said entries may be numbering about 150 over a period of 6 months."
As such, it cannot be ruled out that the entries may be missed in the monthly 'action taken report' by OI(B) and the same may not be CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 49 conclusive to infer that the entry dated 03.12.02 is forged and the demolition action had not been carried by the JE.
18. Ld. PP for CBI has next contended that since the 'demolition charges' were not raised in respect of the property in question and claimed from the owner, the entry for partial demolition action was forged.
The contention has been vehemently opposed by counsel for accused Ajay Kumar Shrotriya and it has been pointed out that it is the job of OI(B) to prepare the letter of demand/bill for the demolition charges as per the entries in UC file or in the demolition register and, thereafter, the said letter/bill is sent to the owner/builder under the signatures of AE. It is also contended by counsel for accused that JE has in fact no role to play in recovery of said charges.
It may be noticed that similar contention has also been raised in other cases decided by this Court including CC No.119/11 (CBI vs. Ajay Kumar Shrotriya, Bhagwant Singh & Anr.) and CC No. 110/11 (CBI vs. Ajay Kumar Shrotriya, Mukesh Sachdeva & Raj Kumar Chawla). In CC No. 110/11 in cross-examination on page no.3 & 4 dated 15.02.12 as well as CC No.114/11, Shri Brij Pal Singh, EE stated in cross-examination dated 30.04.12 (page 3 and 4 ) to the effect:
"The demolition charges are to be claimed by the OI(B) and the necessary documentation is also to be made by him for aforesaid purpose. The said charges are forwarded to the House Tax Deptt. for recovery from the concerned Assessee. It is not the duty of JE to CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 50 claim the demolition charges."
Similar deposition has also been made by Shri Brij Pal Singh, EE in CC No.119/11 on page no. 3 & 4 of his cross-examination dated 14.03.12.
PW16 Shri J.S. Yadav, AE in the aforesaid context in CC No.114/11 also clarified during cross- examination that for minor demolitions, the demolition charges are not normally raised.
It was also admitted by PW14 Inspector N. Mahato (IO) in the present case i.e. CC No.118/11 in his cross-examination dated 21.08.12 page 13 that "the demolition charges in respect of action taken by MCD are required to be collected by Assistant Engineer and not by the JE. The demolition action can be taken by JE/AE without police force."
In the aforesaid context, it may also be noticed that since the posting of Ajay Kumar Shrotriya, JE was till 20.01.03 and the Ward was transferred from his jurisdiction, the further action in this regard, if any, could also be taken by the succeeding JE or the AE. In view of above, merely on this ground it cannot be inferred that the entry dated 03.12.02 carrying partial demolition action had been forged.
19. Ld. PP for CBI has next relied upon report prepared by CPWD on inspection of property in 2007 and contended that unauthorized construction reflected in the report leads to inference that CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 51 the demolition action had not been carried on 03.12.02.
I am of the considered view that aforesaid report may be relevant to show that the unauthorized construction had been carried in the property but merely on the basis of construction reflected in the CPWD report made in the year 2007 after registration of FIR by CBI, it cannot be inferred that entry regarding partial demolition action dated 03.12.02 in the demolition register is forged. It cannot be ruled out that the property may have been renovated or repaired after the said partial demolition action was carried on 03.12.02. In the facts and circumstances, it cannot be concluded on the basis of CPWD report prepared in 2007 that the entry dated 03.12.02 had been forged by Ajay Kumar Shrotriya though the fact that unauthorized construction was raised at the time of booking of FIR in the property cannot be doubted.
20. Learned PP for CBI has also vehemently contended that there is sufficient evidence to infer conspiracy since accused Ajay Kumar Shrotriya, JE had forged the entry dated 03.12.02 to benefit the owner/builder.
To assess the aforesaid contention, it may be outrightly noticed that there is absolutely no evidence on record to show meeting of accused during the relevant period or passing of gratification. PW14 Inspector N. Mahato during his cross- examination dated 21.08.12 (page 4) stated that the owners of the property had informed him that Ajay Shrotriya had not met them CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 52 during 2002/03. The inference as to conspiracy is merely drawn since the owner/builder of the property may be benefited, even in the absence of any corroboratory evidence of conspiracy. The same is clear from the fact as PW14 admitted in his cross- examination dated 21.08.12 on page 4 that there was no direct evidence of conspiracy but the same was inferred since the owner/builder were the beneficiary. The inference as to conspiracy has been drawn merely on the presumption that the entry dated 03.12.02 had been falsely introduced which itself has not been proved.
For the purpose of offence of conspiracy, the evidence should clearly reflect the meeting of the minds between the accused for achieving the intended object which is completely missing in this case. It is also imperative to notice that by merely making entry dated 03.12.02 the property of the owner/ builder could not have been saved from further demolition action. The duty for further complete demolition action lay on the shoulders of succeeding officers (JE/AE) under the supervision of other senior officers in hierarchy after transfer of Ajay Kumar Shrotriya on 20.01.03. If any such conspiracy existed, then the officers posted after transfer of Ajay Kumar Shrotriya were also equally responsible for failing to take demolition action but have not been chargesheeted by the investigating agency. It may also be observed that testimony of PW5 Smt. Jagbiri Devi, PW13 Shri Harbhajan Singh does not further the case of prosecution in any manner as the witnesses claimed to have come into possession of property after the partial demolition action had been taken on CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 53 03.12.02. Obviously, since the property was purchased by them after 03.12.02, they could not have been witness to partial demolition proceedings carried by Ajay Kumar Shrotriya on 03.12.02.
It may also be noticed that as per evidence led on record, Krishan Lal Sachdeva had entered into a collaboration agreement for renovation of premises with Surjit Singh and had further handed over three shops as part of consideration to Surjit Singh prior to even registration of FIR by MCD on 24.10.02. Further, even one of the shops was sold by Surjit Singh to PW5 Jagbiri Devi vide GPA dated 08.01.03. In view of above, the entry in respect of demolition action with respect to removal of shutters of shops would have benefited Surjit Singh rather than accused Krishan Lal Sachdeva. However, for the reasons best known the investigating agency arrayed Surjit Singh as a witness despite being aware of the above factual position.
In the facts and circumstances and evidence led on record, I am of the considered view that the circumstances relied by prosecution do not establish conspiracy beyond reasonable doubt or if the entry dated 03.12.02 had been concocted by Ajay Kumar Shrotriya, JE in conspiracy with co-accused.
21. I am also constrained to point out that the investigating agency at its whims and fancies carried the investigation ignoring the role of any other JE posted prior to or after Ajay Kumar Shrotriya in the concerned ward and a clean chit has been given to the AE,EE,SE and DC along with builders and political bosses CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 54 without bothering to investigate their role.
The premier investigating agency (CBI) was expected to thoroughly investigate the case since the FIR was registered by CBI and the investigation commenced on the directions issued by the Hon'ble High Court in WP (C) No.4582/2003 to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. However, the investigation has merely been confined to role of Ajay Kumar Shrotriya who was on deputation from DDA to MCD from 06.05.02 to 30.09.03 ignoring the role of other officers who appear to be also equally responsible for ensuing complete demolition action in the properties in question.
The dumping of the files by succeeding JE/AE/EE without initiating further necessary action in accordance with law leads to the only inference that the same was either in collusion or the role of subordinate officers was deliberately ignored. There also has been clear lack of supervision by the SE & DC concerned posted at relevant time.
22. Considering the fact that the nexus between the builders, their political bosses and officials from MCD is deeper and unauthorized constructions continue unabated even today, it may be observed that the acquittal of the accused wheresoever in the 15 cases prosecuted by CBI in RC No.1/07 does not protect the CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 55 unauthorized construction from demolition. Also, departmental action be taken by Commissioner, South Delhi Municipal Corporation / concerned Commissioner, MCD in respective cases against the JEs/ AEs (other than Ajay Kumar Shrotriya) who are found liable for failing to take demolition action in the properties in question investigated by CBI after the same were booked for unauthorized construction by MCD and action was not taken after transfer of Ajay Kumar Shrotriya from the concerned Ward. A copy of this judgement be accordingly forwarded to Deputy Commissioner, MCD West Zone and Commissioner, South Delhi Municipal Corporation, for compliance and placing the action taken report on record within eight weeks.
23. For the foregoing reasons, the prosecution has failed to bring home the charge against both the accused beyond reasonable doubt. Both the accused are accordingly acquitted of all the charges.
Announced in the (Anoop Kumar Mendiratta) open Court on Special Judge (PC Act) CBI-08 08th November, 2013 Central District, THC, Delhi. CC 118/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 56