Delhi District Court
Ac No.34/11/08 Cbi vs . S.A. Saifi & Ors. Page 1/23 23.12.2014 on 23 December, 2014
IN THE COURT OF RAJIV MEHRA
SPECIAL JUDGE CBI (PC ACT)
KARKARDOOMA COURTS : EAST DISTRICT
DELHI
Unique ID No. 02402R0801402008
AC No. 34/11/08
RC No. 3E/07
C.B.I.
VERSUS
1. S.A. Saifi
S/o Sh. Aziz Ahmad Saifi
R/o H.No.179-A, Lane No.4,
Zakir Nagar, New Delhi-110025.
2. Shyam Bahadur Singh
S/o Late Sh. Ram Shankar Singh,
R/o F-163-D/S-1, Dilshad Colony,
Delhi-110095.
3. Devender Pal Sachdeva
S/o Late Sh. Shanti Lal Sachdeva,
R/o B-17, Dilshad Colony, Delhi-110095.
JUDGMENT
1. The present charge sheet has been filed against three accused for the offence u/s 120B, 217/218 IPC and also u/s 13(2) AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 1/23 23.12.2014 r/w 13(1)(d) of P.C. Act, 1988.
2. The prosecution case in brief is that S.A. Saifi (A1), Junior Engineer (B), Municipal Corporation of Delhi (MCD), Shahdara North Zone, Delhi, in criminal conspiracy with Shyam Bahadur Singh (A2) and Devender Pal Sachdeva (A3) who are promoters and builders has allowed unauthorized construction at property no. D-56, Dilshad Colony, Delhi with a view to cause wrongful pecuniary gain to A2 and A3 and in furtherance of this conspiracy A1 has made a false report showing that part demolition action was carried out at D-56, Dilshad Colony on 27.03.2003 which was booked by him for unauthorized construction although in reality no such demolition was carried out.
3. As per prosecution case, on 07.02.2003 S.A. Saifi (A1) inspected property no. D-56, Dilshad Colony, Delhi and found the unauthorized construction in the shape of rooms, kitchen, toilets, staircase on first floor, second floor and third floor with mumty on the property. He booked this property vide no. 236/B/Sh.-N/03 dated 07.02.2003 for unauthorized construction and accordingly a show cause notice was issued to the owner/builder of the property after which a demolition notice was issued to the owner/builder of said property on 14.02.2003 directing him to demolish the unauthorized construction. Since the owner/builder failed to take any action in compliance of notice within stipulated time, a demolition order was passed by Pyare Lal, Assistant Engineer (B) on 21.02.2003 and as per prosecution case accordingly on 27.03.2003 S.A. Saifi alongwith demolition team consisting of beldars of building department of MCD, Shahdara North Zone and the police team from PS Seema Puri left for the purpose of demolition of this property and also of other properties fixed for the date as per scheduled in the month of March 2003 for MCD, Shahdara North Zone, Delhi.
4. The prosecution case is that the demolition team and the police team accompanying it visited D-56, Dilshad Colony, Delhi but AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 2/23 23.12.2014 no demolition action was carried out on that date of 27.03.2003 on this subject property.
5. The prosecution case is that S.A. Saifi (A1) made false entry in Demolition Action Taken Register of Building Department, MCD, Shahdara North Zone as well as unauthorized construction file vide no. 236/B/UC/Sh.-N/03 dated 07.02.2003 regarding demolition action taken of this property D-56, Dilshad Colony, Delhi and it was mentioned by A1 in unauthorized construction file that impugned property has been demolished at TF, SF, FF and GF, Balconies, Chhajjas (projections) and also demolished the excess coverage partly in the rear setback. It was further recorded that demolition action could not be completed due to shortage of time. It recorded that demolition action took four hours time for the same and also recorded that demolition charges may be recovered from the owner/builder @ Rs.2350/- per hour.
6. A1 since being a public servant, for his prosecution Sanction Order was obtained from the Competent Authority and charge sheet was accordingly filed against accused persons.
7. Vide detailed order dated 29.07.2010 charge of criminal conspiracy was framed against A1 S.A. Saifi, A2 Shyam Bahadur Singh and A3 Devender Pal Sachdeva and a separate charge was also framed against A1 for the offence u/s 217 IPC with the allegation that during the period between 07.02.2003 to 27.03.2003 while posted as JE in MCD, A1 knowingly disobeyed the directions issued by the department by not demolishing the unauthorized construction on the property no. D-56, Dilshad Colony, Delhi intending thereby to save his co-accused A2 Shyam Bahadur Singh and A3 Devender Pal Sachdeva from legal punishment. Similarly, a separate charge for the offence u/s 218 IPC was also framed with the allegation that during the abovesaid period he made a false entry on 27.03.2003 in UC file no. 236/B/Sh-N/2003 in the record which he knew to be incorrect with the intention to cause loss to the public or AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 3/23 23.12.2014 with the intention to save his co-accused A2 and A3 from legal punishment.
8. A1 was also separately charged for the substantive offence u/s 13(2) r/w 13(1)(d) P.C. Act with the allegations that during the abovesaid period, being a public servant while he was posted as Junior Engineer, did not take any action on plot no. D-56, Dilshad Colony, Delhi despite booking and having knowledge of unauthorized construction over it and by abusing official position, facilitated co-accused A2 and A3 builders in raising unauthorized construction with a view to cause pecuniary advantage to them.
9. To prove the charge, prosecution has examined 36 witnesses.
10. In his statement recorded u/s 313 Cr.P.C. A1 alleged his false implication. As per A1 the entry was made by him in the unauthorized construction file and also in demolition action taken register in the property no. D-56, Dilshad Colony only after property was partly demolished by him on 27.03.2003. This entry according to him was correctly made in the records and as per him the entries were counter checked by Assistant Engineer concerned.
11. In their statement u/s 313 Cr.P.C. both A2 and A3 have alleged their false implication in this case but both of them have admitted of their having purchased property no. D-56, Dilshad Colony from Nitin Gupta which according to them was a built up property. As per them they did not raise any construction in this plot after its purchase.
12. A1 also examined three witnesses in defence. D1W1 is M.S. Rao, UDC, Vigilance Department, EDMC, Udyog Sadan, Patparganj has produced the record of prosecution Sanction file of A1 and photocopy of the draft sanction order has been proved by this witness as Ex.D1W1/A. One of the defence of this accused is AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 4/23 23.12.2014 that in his case the Competent Authority did not apply his own mind and only copied the draft sanction order and as such the sanction for his prosecution given in this case which is Ex.PW7/A is bad in law.
13. A1 also examined D1W2 Birender Dutt, Office Incharge (B), Shahdara North Zone, EDMC who has produced alongwith other records the file relating to sanctioned building plan of property no. F-35, Dilshad Colony and also property no. G-154, Dilshad Colony and as per this witness D1W2 the site plan in respect of F-35 was sanctioned only on 20.02.2003 whereas site plan for G-154 was sanctioned on 06.02.2003. As per prosecution case these two properties were also booked alongwith property no. D-56, Dilshad Colony for demolition on 27.03.2003 and were visited by A1 and also other members of the demolition squad and police party. The defence is that when the site plans in respect of these abovesaid properties are of the date of 20.02.2003 and 06.02.2003, it was not possible to raise unauthorized construction on these two properties within such a short span of time and according to the defence counsel these two properties were wrongly booked for unauthorized construction.
14. The other defence witness examined by A1 is D1W3 Rajender Singh, ASI, Malkhana, EOU-III, CBI HQ, Delhi who has produced the records of file no. 68/B/UC/Sh.-N/03 and 69/B/UC/Sh.- N/03, both dated 15.07.2003 and as per defence of A1 these files pertain to the booking of the property no. F-35 and G-154, Dilshad Colony would show that these two properties have been booked on 15.07.2003 i.e. a date subsequent to the date of demolition on 27.03.2003 there was no occasion for CBI to take any demolition action of these two properties on 27.03.2003.
15. As per defence the whole prosecution is highly doubtful and is based on false records.
16. No defence evidence has been adduced by A2 and AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 5/23 23.12.2014 A3.
17. This Court has heard the Ld. PP and also heard the Ld. defence counsel for A1 and also for A2 and A3 and has carefully gone through the record.
18. It may be seen that unauthorized construction file of property no. D-56 has been proved as Ex.PW1/B. In this file there is handwritten entry by A1 proved as Ex.PW1/DD regarding that he visited the site alongwith demolition squad and police force from P.S. Seemapuri. It further records that impugned property stand demolished at TF, FF and GF in the shape of projection, chhajja, excess coverage in rear setback. It further records that demolition action could not be completed due to shortage of time. It further records the demolition action took four hours. It further records that demolition charges may be recovered from owner/builder @ Rs.2350/- per hour. This entry further records submitted for approval and NO please.
19. A1 has not denied or disputed having made abovesaid entry Ex.PW1/DD in Ex.PW1/B. This entry proves (a) the visit of A1 on the subject property on 27.03.2003 (b) partial demolition in the property on that date and (c) it also records the duration of four hours, for which this demolition action had continued and it was only a part demolition action and could not be completed on that date because of shortage of time.
20. This Court would now discuss the statement of the police officials who were the part of police team visiting the property alongwith demolition squad led by A1. They have been examined as PW3 HC Rohtas Kumar, PW5 HC Vijay Singh, PW6 HC Sukhbir and also PW8 SI Shahid. All these witnesses have categorically deposed that on the date of 27.03.2003 no demolition at all was made by the demolition squad in property no. D-56, Dilshad Colony although this property was visited by the demolition team and police AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 6/23 23.12.2014 party. All these witnesses have also been cross examined by the defence counsel but nothing has come in their cross examination to discredit them. This Court is of the view that they are the independent witnesses and there is no reason for them to say anything incorrect regarding their visit on the properties on 27.03.2003 for the purpose of demolition of unauthorized construction or in pursuance thereof any action taken at the different sites including the property in question.
21. It may also be seen that PW8 SI Shahid leading the police party on the date of 27.03.2003 has also proved the record of departure entry as Ex.PW8/1 and also arrival entry as Ex.PW8/2 and as per this entry at about 3.35 pm on that date ASI (as PW8 then was) alongwith staff has returned to police station and this entry also mentions that on that date they visited property no. G-154, F-35 and D-56 for demolition alongwith A1 S.A. Saifi, JE and staff. As per this entry the demolition action has been taken in property no. G-154 in the front portion whereas property no. D-56 and F-35 Dilshad Colony were only inspected by JE without any demolition action on these two properties.
22. The oral testimony of PW3, 5, 7 and 8 of the abovesaid police party thus not only supports the prosecution case but even the documentary evidence of arrival entry of police party to police station proved as Ex.PW8/2 further supports and confirms that on 27.03.2003 A1, staff and police party although visited the property no. D-56 for demolition but did not take any action on this property. There is no reason to disbelieve Ex.PW8/2. It is a record prepared in discharge of official duties in normal course. Then no one could have conceived an idea of using this entry for any purpose in future. Ex.PW8/2 being an official record prepared in routine and there is nothing to doubt about the authenticity of it. It has to be accepted as a document being supportive to the prosecution case.
AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 7/23 23.12.2014
23. It is submitted by the defence counsel for A1 that the testimony of PW28 HC Rajiv who was a member of the police party falsifies the prosecution case that no demolition action was taken on 27.03.2003 on property D-56, Dilshad Colony, Delhi. It is submitted that PW28 has deposed that A1 did his demolition duty on 27.03.2003 and as per the counsel, the prosecution has neither declared PW28 hostile nor has cross examined him and this would make prosecution case doubtful.
24. PW28 HC Rajiv has deposed that on the date of 27.03.2003 he alongwith police party visited property no. G-54, F-35 and D-56, Dilshad Colony and according to him they had carried out demolition duty.
25. This statement of PW28 HC Rajiv Kumar cannot take away the credibility of the evidence of the other members of the police party, who are very clear and categorical about the fact that all of them visited alongwith other properties fixed for demolition on 27.03.2003 at property no. D-56 also, but no demolition action was carried out in the property by JE. Nowhere in his statement PW28 has deposed that what demolition action was taken and on which of the three properties such action was taken. The defence cannot take any advantage of the statement of PW28. His statement is not detrimental or adverse to the prosecution case.
26. Then there is a conflict on the point of time when the demolition work was finished on that day on 27.03.2003. While as per prosecution this was finished upto 3.00 pm. The stand of the defence is that it continued upto 5.00 pm. Defence has also given suggestion to this effect to PW8 which has been denied by him. The statement of PW28 HC Rajiv is that they were free by 3.30 pm. He has not been cross examined nor given suggestion that it continued upto 5.00 pm. So statement of PW28 rather supports the prosecution more than defence.
AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 8/23 23.12.2014
27. The statement of PW9 Bhopal Singh, PW10 Mohd. Yasin and PW11 Ram Babu who all are beldars further supports the prosecution case on the point that no demolition action has taken place in the subject property of D-56, Dilshad Colony on 27.03.2003 by A1 at all. They were the members of demolition squad and attendance register Ex.PW1/C (D-8) proves their presence on duty on 27.03.2003.
28. The statement of PW9 Bhopal Singh is that initially demolition was carried out on 27.03.2003 at property no. F-182 where one chajja was broken and thereafter they went to property no. D-56. As per PW9 when they started demolishing the shop at ground floor of this property no. D-56, some one shown some papers to JE and demolition work was stopped. To the similar effect is the statement of PW10 and also PW11. Although all the three witnesses claimed in their statement that they remained at the spot upto 5.30 pm but this part of their testimony is only to be disbelieved and rejected in view of documentary evidence Ex.PW8/2 showing return around 3.30 pm. There is nothing on record to show that Ex.PW8/2 has not been prepared correctly and the time of return as mentioned therein being 3.30 pm was not correct.
29. As per entry recorded by A1 in the register Ex.PW1/B demolition continued for four hours and it was carried out at TF, SF, FF and GF in the shape of projections, chhajjas, excess coverage in rear setback. None of the witness PW9 to PW11 speaks about any such demolition to the extent claimed by A1.
30. It is submitted by the defence counsel for A1 that in his cross examination PW11 Ram Babu beldar has admitted that demolition on second floor in property no. D-56, Dilshad Colony was carried out by him on 27.03.2003 and this accordingly would falsify the prosecution case that no demolition was carried out in this property.
AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 9/23 23.12.2014
31. The contention of the defence counsel is only to be rejected. This statement of PW11 made in his cross examination has to be read alongwith other part of his testimony. It may be seen that in his examination in chief PW11 has deposed that some demolition at the ground floor at property no. D-56 was carried out and according to him when they started the demolition in the shop one person arrived with some documents and showed that to A1 S.A Saifi and upon which they were instructed by A1 S.A. Saifi to stop the work and sit in the truck. No doubt that in his cross examination by counsel for A1 it has been stated by PW11 that demolition in property D-56 was done at second floor by him but this in no way would effect the veracity and truthfulness of the prosecution case which finds support from the other reliable evidence and material on record.
32. It is submitted by the ld. counsel for A1 that statement of PW21 Pyare Lal who was Asstt. Engineer on the relevant date and was immediate superior officer of A1 posted in same division and passed demolition order would show that it falsify the case of prosecution.
33. The record shows that A1 had recorded demolition entry Ex.PW1/DD in the register Ex.PW1/B, it was marked to AE (B)I Pyare Lal who made his remark as 'approved and try again'. The statement of PW21 Pyare Lal is that he has done the physical test check post demolition on 27.03.2003 in property no. D-56, Dilshad Colony but this statement of him cannot be of any advantage to the accused. This witness has been cross examined by the State. It has been admitted by him that AE (B) is not required to test check each and every demolition. Then moreover he has also admitted in his cross examination when confronted with his earlier statement that he has not stated to the IO in his statement u/s 161 Cr.P.C. that property in question was verified by him personally.
34. The possibility of this witness PW21 won over by A1 AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 10/23 23.12.2014 since working in same division and being his immediate superior cannot be ruled out. PW21 only seems to be hand in gloves with A1 in his misdeeds. The evidence of PW21 thus would not discredit the prosecution case based on other supporting and reliable evidence.
35. Statement of PW1 Sh. Satya Pal Singh, Retd. Office Incharge (B) is about the procedure for booking and further action for unauthorized construction. This witness has deposed that this property no. D-56 was booked twice - initially on 23.12.2002 by earlier file no. 90/B/UC/SH-N/02 Ex.PW1/A (D-3) and again on 07.02.2003 vide D-2 file bearing no. 236/B/UC/Sh.-N/03 dated 07.02.2003 Ex.PW1/B. This witness has also proved the attendance register of beldars for the year 2003 as Ex.PW1/C. As per this witness PW1 the property was first time booked by JE Ram Kumar and second time was booked by A1 S.A. Saifi on 07.02.2003 for unauthorized construction described as "first floor, second floor and third floor with mumty".
36. PW4 Rajender Kumar Jain was working as XEN and has deposed about the procedure in case of unauthorized construction in properties. To the similar effect is the statement of PW19 Devender Singh, Chief Engineer, EDMC.
37. It is submitted by the ld. Defence counsel for A1 that PW4 and PW19 in their cross examination have stated that entries are made in demolition register only after actual demolition in the property and this would falsify the prosecution case of making false entry by A1 in Ex.PW1/B and also in demolition action taken register.
38. This contention is only to be rejected observing that this statement of PW4 and PW19 was made by them as a general statement applicable to the normal working situation and can be of no benefit to the accused in the present case which is a case of preparation of false records by him.
AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 11/23 23.12.2014
39. The prosecution has brought on record sufficient evidence to show that no demolition was carried out by A1 at the site of D-56, Dilshad Colony, Delhi on 27.03.2003 and entry made by A1 in the records of Ex.PW1/B and also demolition action taken register Ex.PW1/DF is false and fabricated.
40. It is submitted by the defence counsel for A1 that D1W2 Birender Dutt has produced the record that site plans of property no. F-35 and G-154 were approved and sanctioned in the month of February, 2003 only. It is submitted by the counsel that in that eventuality it is unexpected that owner/builder of these two properties would be in a position to raise and complete construction by March 2003 and according to the counsel the statement of D1W3 Sh. Rajender Singh further falsifies the prosecution case showing that the properties F-35 and G-154 have also been booked on 15.07.2003 only and in that event there was no question of demolition order against these two properties at all. This argument is only misconceived and to be rejected.
41. As may be noted that even in the present case the property no. D-56 has been admittedly booked two times. First time by PW2 Ram Kumar JE and second time by A1 S.A. Saifi. In view of this position the possibility that these properties have been booked later on again cannot altogether be ruled out and even otherwise so far as the case of the subject property D-56, Dilshad Colony, Delhi is concerned, the evidence is quite emphatic, clear and does not create any ambiguity on records. In this case A1 is not disputing the fact that he did not visit the property D-56 or did not make this entry. His only defence is that this entry was made by him only after carrying out actual demolition. The facts in this case have to be kept confined to the subject property in question i.e. D-56, Dilshad Colony, Delhi.
42. The prosecution has brought sufficient evidence to show AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 12/23 23.12.2014 that this entry so recorded by A1 is false and fabricated entry and although A1 visited the site of D-56, Dilshad Colony, Delhi on 27.03.2003 but he returned without actually carrying out any demolition and for this reason the defence sought to be adduced with the help of testimony of D1W2 Birender Dutt and D1W3 Rajinder Singh would not be of any help to A1. The records of the case of other properties cannot be of any help to the A1 in the fact situation of the instant case.
43. The argument of defence counsel that number of other beldars who were part of demolition squad on 27.03.2003 have not been examined and it would only lead to inference that they would depose against prosecution by placing reliance upon Mehraj etc. vs. State 1994 SCC Crl. 1390 is only to be rejected. That was a murder case based on its own facts. Here the beldars are only repetitive witnesses and no adverse inference as such to be drawn.
44. To prove its case against A2 and A3 the prosecution has been relying upon statement of PW20 Nitin Gupta from whom they admittedly had purchased this property D-56 on 12.08.2002. PW20 in the course of his evidence has produced GPA, SPA and agreement to sell which are EXPW20/2 to Ex.PW20/4 executed by PW20 in favour of A2, A3. Even the defence does not dispute the purchase of property by A2 and A3 on 12.08.2002 from PW20. Their only defence is that they did not raise any unauthorized construction in the property. Their defence is contrary to the records and as such is only to be rejected. As may be noted Ex.PW20/5 is the sanctioned site plan submitted and approved on application of PW20 Nitin Gupta made to DDA which is part of Ex.PW20/9 after he purchased the property from earlier owner. This proves that after the property was purchased by PW20, he sought permission from DDA to reconstruct the same. As per PW20 this property when sold to A2 and A3 on 12.08.2002 was constructed by him only upto basement.
AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 13/23 23.12.2014
45. The document of sale executed by A2, A3 in favour of PW12 to PW18 and PW30 proves that these flats were sold to them during the period between June, 2003 to December, 2003. This accordingly proves that during the period between 12.08.2002 when this property was purchased by A2 and A3 from PW20 at the time when these flats were sold by A2 and A3 to PW12 to PW18 and PW30 upto December 2003, A2 and A3 were the owner and responsible for construction in the property.
46. Then statement of PW1 Satya Pal Singh further supports the prosecution case in this regard who has deposed that this property was booked twice vide Ex.PW1/A on 23.12.2002 by JE Ram Kumar and second time by A1 on 07.02.2003 vide Ex.PW1/B.
47. It is submitted by the defence counsel for A2 and A3 that the document Ex.PW20/6 by which property D-56 was purchased by PW20 Nitin Gupta from earlier owner and also documents Ex.PW20/2 to Ex.PW20/4 by which it was sold to A2 and A3 would show that this was a built up property only and would suggest that no construction was carried out by A2 and A3 at any point of time.
48. This argument of counsel of A2 and A3 is only to be rejected in view of the fact that Ex.PW20/9 is a DDA file containing the applications and other records of PW20 Nitin Gupta by which he had sought permission to reconstruct the property D-56, Dilshad Colony and Ex.PW20/5 is the sanctioned plan approved by DDA for raising such construction by PW20. In view of this position there is no merit in the submission of the defence counsel for A2 and A3 that D-56 was a built up property when it was sold by PW20 to A2 and A3.
49. The prosecution case is further supported by the statement of PW22 Sunil Kumar Sharma, Asstt. Engineer (B) and also by the statement of PW23 Harminder Pal Singh, XEN and PW24 Sushil Kumar, Private Architect. The statements of these AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 14/23 23.12.2014 three witnesses relate to the fact of subsequent inspection conducted at the site of D-56, Dilshad Colony in pursuance of the directions issued by the IO. Vide their report Ex.PW22/2 they have confirmed about the position of existing construction at the spot and they have also submitted technical report of unauthorized construction in respect of property no. D-56. This report shows that excess coverage area at the spot was 587.67 sq. meter as per mpd 2021 and this report shows the existence of ground floor, first floor, second floor and third floor at the site. The technical report Ex.PW22/3 also includes the details of sanctioned area and unauthorized construction, actual covered area, existing covered area at the site and as per this report Ex.PW22/3 the excess covered area as per mpd 2001 was 1058.11 sq. meter.
50. Nothing has come in cross examination to dispute the fact of subsequent inspection so proved by the deposition of PW22 to PW24 on record.
51. It is submitted by the defence counsel that inspection has been made after about 5 years and possibility of raising unauthorized construction meanwhile cannot be ruled out altogether.
52. This contention has no substance. The flats in D-56 were sold to PW12 to PW18 and PW30 immediately after 27.03.2003 during a short span of time of about six months. Defence has not given any suggestion to either of these witnesses of raising of any unauthorized construction in the flats by them nor any other evidence has been brought on record in support of raising unauthorized construction in property after these have been purchased by PW12 to PW18 and PW30. They are the independent persons and are best witnesses to speak about the same. Defence has not brought anything on record to suggest that construction has been raised anytime after 27.03.2003.
53. The statement of PW31 Shiv Bahadur Singh who was AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 15/23 23.12.2014 owner and builder of adjoining property of D-56 further supports the prosecution case that construction was raised by A2 and A3 at the site of D-56, Dilshad Colony, Delhi.
54. It is submitted by defence counsel that IO PW-35 L.N. Manjhi has admitted in cross examination that he did not collect any evidence to show that A2 and A3 are involved in raising unauthorized construction at the site. It is submitted that IO has also admitted that he has not collected any evidence by way of Mason and Labour working at the site implicating A2 and A3 in this case.
55. Even if there is no direct evidence of the involvement of A2 and A3 in raising unauthorized construction in the subject property D-56, Dilshad Colony but the circumstances on record proves it beyond doubt that A2 and A3 are the owners of the property on 27.3.2003 on which date the property was booked for demolition action.
56. The prosecution has placed sufficient material on record to prove the charge of criminal conspiracy u/s 120-B IPC against all the three accused.
57. A1 S.A. Saifi has also been facing trial for the offence u/s 217 IPC with the allegation that during the period from 07.02.2003 to 27.03.2003 A1 disobeyed the directions issued by department by not demolishing the unauthorized construction in the property no. D-56, Dilshad Colony, Delhi intending thereby to save his co-accused A2 Shyam Bahadur Singh and A3 Devender Pal Sachdeva.
58. Section 217 IPC deals with the offence of public servant disobeying with intention to save persons from punishment or property from forfeiture and reads that whoever being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 16/23 23.12.2014 thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment or subject him to a less punishment than to which is liable, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or any charge to which it is liable by law, shall be punished with imprisonment which may extend to two years. The offence of this section is made out only when there is violation of law by public servant.
59. In the present case as may be seen the prosecution has not brought anything to show which law, if any has been disobeyed by A1 S.A. Saifi. The prosecution has examined 36 witnesses but none of them has pointed out or has deposed about any violation of any specific law by A1. In such a situation no charge under Section 217 IPC is proved against A1.
60. A1 is also facing trial for the charge u/s 218 IPC which deals with the offence committed by a public servant of framing incorrect record with the intent to save person from punishment or property from forfeiture.
61. The prosecution has produced on record sufficient evidence to show that A1 has prepared incorrect/false record by recording entry regarding demolition of unauthorized construction in file Ex.PW1/B and also in demolition action taken register Ex.PW1/DF. This false record was prepared by A1 with an intent to save A2 and A3 from legal punishment and also to save the property D-56, Dilshad Colony, Delhi against demolition of unauthorized construction. This accordingly proved he charge u/S 218 IPC against A1.
62. A1 being a public servant is also facing trial for the charge u/S 13 (2) read with Section 13 (1) (d) PC Act because of his misconduct by making false entry in records the undue benefit of which has been obtained by A2 and A3. CBI has proved by AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 17/23 23.12.2014 adducing sufficient evidence on record that the entries in Ex.PW1/B and also in Ex.PW1/DF are manipulated entries and were carried out by A1 without demolishing unauthorized construction on site of D-56, Dilshad Colony, Delhi. The culpability is writ large in recording this false entry by itself. A1 being a public servant was bound to protect the public interest but in the misuse of his office he has created this false entry to facilitate A2 and A3 to have pecuniary gain. This accordingly proves the charge u/s 13 (2) read with Section 13 (1) (d) PC Act against him.
63. The sanction to prosecute A1 has been proved by PW-7 Naresh Kumar who has signed the Sanction Order Ex.PW7/1. It is submitted that Sanctioning Authority has not applied its mind and has copied the order from draft Sanction Order proved as Ex.D1W1/B. This draft sanction has not been put to PW-7 in cross examination and as such defence cannot take any advantage of it. In his examination in chief it has been specifically stated by PW-7 that he has gone through the entire record. Nothing has been brought in his cross examination to show how he has not applied his mind before grant of the sanction for prosecution of A1. The contention is thus rejected being without substance and merit.
64. The prosecution thus proves the charge u/s 120-B read with Section 218 IPC and 13 (2) read with 13 (1) (d) PC Act against all the three accused. The prosecution has also proved the charge u/s 218 IPC and 13 (2) read with Section 13 (1) (d) against A1. A1 is acquitted of the charge u/s 217 IPC. Order is made accordingly.
Dictated and announced in the open Court on 23.12.2014.
( RAJIV MEHRA ) SPECIAL JUDGE CBI (PC ACT) EAST DISTRICT KKD COURTS: DELHI AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 18/23 23.12.2014 IN THE COURT OF RAJIV MEHRA SPECIAL JUDGE CBI (PC ACT) KARKARDOOMA COURTS : EAST DISTRICT DELHI AC No.34/11/08 RC No.3E/07 C.B.I. VERSUS
1. S.A. Saifi S/o Sh. Aziz Ahmad Saifi R/o H.No.179-A, Lane No.4, Zakir Nagar, New Delhi-110025.
2. Shyam Bahadur Singh S/o Late Sh. Ram Shankar Singh, R/o F-163-D/S-1, Dilshad Colony, Delhi-110095.
3. Devender Pal Sachdeva S/o Late Sh. Shanti Lal Sachdeva, R/o B-17, Dilshad Colony, Delhi-110095.
ORDER ON SENTENCE
1. It is submitted by Ld. PP for CBI that the offence for which the accused have been convicted effects the society at large and prays for maximum punishment and fine.
AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 19/23 23.12.2014
2. It is submitted by Ld. Counsel for convict S.A. Saifi (A1) that he is aged about 52 years, he is chronic diabetic patient and has three unmarried children to lookafter alongwith other family members. It is submitted that his daughter is aged about 25 years and two sons are aged about 22 years and 18 years. All of them are students. Old age mother aged about 75 years suffering from various ailments. Wife is a housewife. He is the sole bread earner of the family. He has already faced the agony of trial for 7 years. It is submitted that the acts of the convict in which he has been held guilty has not caused any loss to Govt. Exchequer. He has no previous criminal involvement. Ld. Counsel prays for lineant view.
3. It is submitted by Ld. Counsel for convicts Shyam Bahadur Singh (A2) and Devender Pal Sachdeva (A3) that as far as case of A2 is concerned he is aged about 57 years having no previous criminal involvement. His mother is aged about 84 years. The other dependents in the family are wife 55 years and having liability of marriageable daughter aged about 21 years. He is presently working as LIC Agent. He is the sole bread earner of the family.
4. As far as A3 is concerned he is aged about 58 years and is a diabetic patient and is suffering from heart ailment. His wife is 54 years of age. She is also a heart patient. He has no previous AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 20/23 23.12.2014 criminal involvement. He is doing the work of repairing of CCTV camera. It is submitted that lineant view be taken.
5. Corruption as we hear and see is rampant everywhere. It is a sign of conscious less society. Corruption is always a potent threat to integrity and without integrity talking of any progress or lead in any field is meaningless.
6. We want to make Delhi a world class city. On the other hand there are developers who for their own personal gains are hellbent to see that city is converted into a concrete jungle and this they make possible in connivance with officials of MCD and other agencies by greasing their palms. The greed for money is failing every scheme and halting every progress.
7. The present case is one such example. In the instant case A1 is a MCD official, who in conspiracy with A2 and A3, the builders who have carried out the unauthorized construction in the property, has become the protector of such unauthorized construction. A1 has even gone to the extent of manipulating the records in order to achieve the illful designs. The plea of lineancy and presence of mitigating circumstances has no place in such type of serious offences which have been committed not by impulse but out of a well thought plan and strategy.
AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 21/23 23.12.2014
8. All the three convicts are awarded the punishment of RI for 1 year each and also imposed with a fine of Rs. 50,000/- each for the offence of criminal conspiracy under Section 120-B IPC read with Section 218 IPC read with Section 13 (2) read with 13 (1) (d) PC Act, 1988. In default they have to undergo SI for 6 months.
9. Similarly A1 is also awarded punishment of R1 of 1 year for the offence under Section 218 IPC and is also imposed with a fine of Rs. 25,000/-. In default he will have to undergo SI for 3 months.
10. A1 is also awarded RI for 3 years and is also imposed with a fine of Rs. 50,000/- for the offence under Section 13 (2) read with 13 (1) (d) PC Act, 1988. In default he has to undergo SI for 6 months.
11. All the sentences for A1 shall run concurrently.
12. Benefit of Section 428 Cr.P.C if any be given to all the accused.
13. All convicts have been supplied with copy of Judgment and Order on Sentence free of Cost.
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14. File be consigned to record room.
Dictated and announced in the open Court on 24.12.2014.
( RAJIV MEHRA ) SPECIAL JUDGE CBI (PC ACT) EAST DISTRICT KKD COURTS: DELHI AC No.34/11/08 CBI VS. S.A. SAIFI & ORS. PAGE 23/23 23.12.2014