Delhi District Court
Cbi vs . 1 Anand Mohan Sharan, on 4 June, 2014
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 07/2012
FIR: RC AC3/2003 A0003
U/s 13 (2) r/w 13 (1) (e) PC Act & u/s 120-B r/w 193 IPC
Unique case I.D. No. 02406R0778812005
CBI Vs. 1 Anand Mohan Sharan,
Son of Sh. Krishan Mohan Sharan,
Resident of 7/15, DDA Officers Flats,
Bhagwan Das Road, New Delhi.
2 Krishan Mohan Sharan,
Son of Sh. S.K. Sharan,
Resident of C-2/388, Janak Puri,
New Delhi.
Date of Institution : 13.09.2005
Date of framing of charge : 24.09.2008
Date on which case was received on
Transfer by this Court : 30.01.2012
Date of conclusion of arguments : 31.05.2014
Date of Judgment : 04.06.2014
Memo of Appearance
Mrs. Jyotsna Sharma Pandey, Learned PP for CBI.
Sh. Harsh Kumar Sharma, learned counsel for A-1 Anand Mohan Sharan.
Sh. Manish Vashisht and Sh. Sameer Vashisht, learned counsels for A-2
Krishan Mohan Sharan.
JUDGMENT
VERSION OF PROSECUTION 1.0 Accused Anand Mohan Sharan (hereinafter referred to as A-1), an IAS officer was posted as Commissioner (Land Disposal), DDA, Delhi in the year 2003. He was, at that time, residing at official accommodation i.e. 7/15, DDA Officers' Flats, Bhagwan Dass Road, New Delhi. A search takes place in said house on 27.03.2003 albeit in connection with one different FIR CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 1 of 73 i.e. RC AC3/2003 A0002 (hereinafter referred to as 'old case'). Various records are collected and seized during such search and a detailed inventory of the movable articles found in such house of accused Anand Mohan Sharan is prepared.
1.1 Cash amount of Rs. 36,14,970/- is also recovered during such search.
1.2 Recovery of such huge and unexplained cash coupled with source information prompts CBI to register another case on 06.10.2003. Accordingly, FIR RC AC3/2003 A0003 is registered in ACU III Branch against Anand Mohan Sharan (A-1) for having assets disproportionate to his known sources of his income.
1.3 Sh. Krishan Mohan Sharan (hereinafter referred to as A-2), father of A-1, was working as an officer in Indian Railways. After retirement, he had been running a consultancy business from his own premises situated in Janakpuri, Delhi. He was having his own independent income. A-1 got married to Ms. Jyoti on 27.11.1991 who worked as lecturer in various colleges.
1.4 According to investigation, A-1 did not have any significant or noticeable assets in 1991. He acquired one residential flat of HOPE Apartments, Gurgaon and made initial payments towards such flat on 22.08.1991. Accordingly, 22.08.1991 was taken as start of check period and close of the check period is the date of search in the old case i.e. 27.03.2003.
1.5 Details regarding his assets, expenditure and income were collected and according to CBI, A-1 was found in possession of assets worth Rs. 45,70,560.38 disproportionate to his known sources of income. It, naturally, also included said sum of Rs. 36,14,970/- which had been CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 2 of 73 recovered during the search conducted on 27.03.2003 in old case.
1.6 Needless to say that entire case revolves around recovery of said sum of Rs. 36 lacs approximately. During the course of investigation, A-1 explained the recovery of aforesaid sum by asserting that his father (A-2), who had entered into agreement-to-sell with respect to his two immovable properties, received part sale proceeds and kept such amount with him (A-1). One such property was Plot No. 908/MIE, Bahadurgarh and according to A-2, he had received a total amount of Rs. 14 lacs (out of sale consideration of R. 24.25 lacs) from buyer Vijay Gulati and with respect to another property i.e. H. No. C-2/388, Janak Puri, New Delhi, he had received a sum of Rs. 22 lacs (out of sale consideration of Rs. 50 lacs). Thus, according to stand taken by them during the investigation, aforesaid sum of Rs. 36 lacs (Rs. 14 lacs+ Rs. 22 lacs) had been kept by A-2 in the house of A-1. It was also revealed that A-2 had suffered a fracture while he was away to Jaisalmer and after he returned to Delhi on 12.03.2003, he was compelled to stay at the house of his son(A-1)for couple of days and, therefore, such entire amount was kept there in view of his such medical condition.
1.7 Various inconsistencies were noted by the investigating agency with respect to such transactions as well as with respect to the denomination of the sale proceeds and, investigating agency branded the explanation given by A-2 to be dubious and incorrect. Thus, as per investigating agency, A-2, in order to save his son, actively connived with him to fabricate false evidence for the purpose of legitimizing ill-gotten money of Rs. 36 lacs. It was also concluded by the investigating agency that A-1 had failed to satisfactorily account for the source of acquisition of his assets.
1.8 Sanction for prosecution of A-1 was sought from the competent authority.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 3 of 73CHARGE-SHEET & COGNIZANCE 2.0 Charge-sheet was laid before the Court on 13.09.2005 and cognizance was taken on 21.10.2005 and A-1 was summoned for offences u/s 13 (1) (e) & 13 (2) Prevention of Corruption Act and A-1 & A-2 were also ordered to be summoned for offence u/s 120B r/w Section 193 IPC.
2.1 Arguments on charge were heard and vide order dated 19.09.2008, A-1 was ordered to be charged u/s 13 (2) r/w Section 13 (1) (e) of Prevention of Corruption Act as well as u/s 120-B r/w Section 193 IPC and u/s 193 IPC. A-2 was ordered to be charged separately for offence u/s 120-B r/w Section 193 IPC.
2.3 Charges were framed on 24.09.2008 and both the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE 3.0 Prosecution was directed to adduce evidence and as examined 107 witnesses viz PW1 Sh. O.P. Sharma, PW2 Sh. D.P. Khatri, PW3 Sh. Praveen Pathania, PW4 Sh. Suresh Singh, PW5 Sh Amit Pratap Singh, PW6 Sh. George C. David, PW7 Sh. Lajpat Rai Virmani, PW8 Sh. Sadhu Singh, PW9 Sh. George Kutti Mathew, PW10 Sh. S. K. Minocha, PW11 Capt. Shakti Singh, PW12 Sh. M. L. Arora, PW13 Sh. Rakeshwar Dayal, PW14 Sh. Raj Kumar, PW15 Sh. Subey Singh, PW16 Sh. Angna Ram, PW17 Sh. Net Ram, PW18 Sh. Shamsher Singh Hooda, PW19 Sh. Nathu Ram Chauhan, PW20 Sh. Ram Dass, PW21 Sh. Bharat Kapoor, PW22 Sh. Devraj Sanduja, PW23 Sh. Ved Prakash Garg, PW24 Sh. Anil Mohan Sharan, PW25 Sh. Rajbir Singh, PW26 Sh. Mangal Singh, PW27 Sh. Charanjeet Singh, PW28 Sh. Surender Kumar Sachdeva, PW29 Sh. Ashok Kumar Gupta, PW30 Sh. Devender Kumar Sharma, PW31 Sh. D. K. Garg, PW32 Sh. Rajiv Kumar Jain, PW33 Sh. Sachin Rastogi, PW34 Sh. Bhupinder Singh Rohilla, PW35 Sh. Om Prakash Saini, PW36 Sh. Kuldeep Kumar, PW37 Sh. Sanjeev Kumar Garg, PW38 Sh. Kushal Singh, PW39 Sh. Rakesh Kumar Jaiswal, PW40 Sh. S. Hanumant Rao, PW41 Sh. Ramesh Chawla, PW42 Ms. Surekha Rani, PW43 Sh. V. K. Gaindhar, PW44 Sh. Kulanand Kala, PW45 Sh. R. K. Singh, PW46 Sh. Yogender Kumar Jain, PW47 Sh. Gopal Jha, PW48 Sh. R. M. Bhatnagar, CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 4 of 73 PW49 Sh. Vijay Pal, PW50 Sh. Vipin Adlakha, PW51 Sh. P. Parsuram, PW52 Sh. S. Prabhakaran, PW53 Ms. Rita Goswami, PW54 Sh. Anand Ballabh Khulbe, PW55 Ms. Meena Rangila, PW56 Sh. Arvinder Singh Bhatti, PW57 Sh. Ram Lal Kardam, PW58 Sh. Mohan Lal Syal, PW59 Sh. Rajesh Kumar Basra, PW60 Sh. Narender Goel, PW61 Sh. Subhash Chandra Goyal, PW62 Dr. S.S. Bansal, PW63 Sh. Amarnath Rawal, PW64 Sh. Alok Das, PW65 Sh. Sushil Kumar Raina, PW66 Sh. Harish Kumar, PW67 Sh. Harsh Ahuja, PW68 Sh. D. Ganesh, PW69 Sh. Jagdish Shasrma, PW70 Sh. Surjan Singh, PW71 Sh. Krishan Lal Dhanian, PW72 Sh. D. C. Gupta, PW73 Sh. Bal Singh, PW74 Sh. Kamal Singh, PW75 Sh. Mohan Lal Gupta, PW76 Sh. L.D. Papnai, PW77 Sh. Dhan Singh Sharma, PW78 Sh. Leela Krishan, PW79 SH. Atul Chadha, PW80 Sh. Ravi Shankar Mangla, PW81 Sh. S. P. Gupta, PW82 Sh. Devender Kumar, PW83 Sh. Shyam Sunder Sharma, PW84 Sh. Anuj Kumar, PW85 Sh. Jia Lal, PW86 Sh. Mayank Kumar, PW87 Sh. Rajeev Kumar, PW88 Sh. Rajiv Malik, PW89 Sh. Mohar Singh Yadav, PW90 Sh. S.M. Meena, PW91 Sh. Dalel Singh Dahiya, PW92 Sh. Pawan Kumar, PW93 Mrs. Alice Malhotra, PW94 Ms. Poonam Kapur, PW95 Sh. Parveen Kapila, PW96 Sh. Davinder Kumar Sharma, PW97 Sh. Ravi Thakur, PW98 Sh. J.S. Tanwar, PW99 Sh. Mohar Singh, PW100 Sh. S.R. Verma, PW101 Sh. R.K. Sharama, PW102 SH. Neelambaran K., PW103 Sh. Ashok Kumar, PW104 Sh. Shiv Charan Sachdeva, PW105 Inspector Alok Kumar, PW106 Sh. K.Y. Guruprasad, Dy. SP, CBI and PW107 Smt. Soma Rani.
3.1 It will be important to mention that during trial, prosecution dropped several witnesses i.e. LW-38 Sh. Vikas Garg, LW-59 Sh. Khairati Lal Mehta, LW-65 Sh. Hari Singh, LW-74 Sh. Guru Murthi, LW-94 Sh. Dalip Bhandral , LW-95 Sh. Ved Prakash Aneja, LW-110 Sh. Vijay Gulati & LW-121 Insp. Tej Prakash.
3.2 Sh. Anil Mohan Sharan, brother of A-1 was examined in part as PW24 but later on he was dropped by prosecution vide order dated 21.11.2013. This witness was, however, brought in defence evidence.
3.3 It will be worthwhile to mention here that a very crucial prosecution witness i.e. IO-Insp. Deep Singh died before his deposition could be recorded.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 5 of 73STATEMENTS OF ACCUSED 4.0 Statements of accused u/s 313 Cr.P.C. were recorded.
4.1 A-1 admitted therein that amount of Rs. 36 lacs had been recovered during the search of his house in connection with the old case. He, however, reiterated the explanation given by him during the investigation and claimed that such money belonged to his father and was part of the sale proceeds of said two immovable properties owned by his father. He also claimed that he had been falsely implicated and desired to lead evidence in defence.
4.2 A-2 also reiterated that he had kept his said amount of Rs. 36 lacs at the house of his son. He asserted that he had received Rs. 14 lacs as earnest for the sale of Bahadurgarh property and Rs. 22 lacs as earnest for Janak Puri property. He also said that both the transactions were genuine transactions and CBI had unnecessarily and without any substance and proof doubted the same. He also made reference to the suit filed against him by the purchasers of Janak Puri property. He also revealed that he wanted to acquire suitable property for his handicapped daughter which he could not do because of his false implication in the matter and as the cash amount had been seized. He, however, pleaded ignorance about various aspects related to disproportionate assets attributed to his son. He also desired to lead evidence in defence.
DEFENCE EVIDENCE 5.0 A-1 examined following witnesses: -
S. No. Name Purpose
1 DW1 Sh. Rakesh Chaudhary. To prove good character/ACRs of A-1.
2 DW4 Insp. Ajay Kumar, Income Tax For proving income of Ms. Jyoti Sharan.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 6 of 73
Official.
3 DW8 Mrs. Jyoti Sharan, wife of A-1. For proving additional income.
5.1 A-2 examined following witnesses: -
S. No. Name Purpose
1 DW2 Sh. Anil Mohan Sharan, son of To substantiate the transaction related to
A-2. immovable property.
2 DW3 Dr. S.S. Bansal. To prove Will left behind by wife of A-2.
3 DW5 Sh. Samunder Singh, official For proving Sale Deed of Bahadurgarh property.
from the office of Sub-Registrar,
Bahadurgarh.
4 DW6 Sh. Sukhbir Singh, official from To show that immovable property was eventually
the Office of Sub-Registrar, purchased in 2008 for his handicapped
Faridabad. daughter.
5 DW7 Ms. Sudha Sharma, daughter Such handicapped daughter of A-2 for whom the
of A-2. property was to be purchased.
6 DW-9 Sh. Sachit Kumar Sahejpal, For proving Will left behind by Ms. Shakuntala
Advocate. (He also happens to be Devi, wife of A-2. Such Will was allegedly witness on behalf of A-1) drafted/prepared by him.
5.2 Very significantly, defence also wanted to examine Sh. Anoop Singh and Sh. Harmanjeet Singh, buyers of Janak Puri property but since they expressed their reluctance to enter into witness box, they both were dropped by defence.
RIVAL CONTENTIONS 6.0 Learned Prosecutor has contended that prosecution has been able to prove its case to the hilt. She has argued that it becomes very much perceptible that A-1 was found in possession of assets disproportionate to his known sources of income. According to her, both accused have woven a false story with respect to alleged transactions related to sale of two immovable properties and the amount of Rs. 36 lacs recovered from the CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 7 of 73 house of A-1 was in fact ill-gotten money of A-1 which had been kept in a very clandestine and dubious manner.
6.1 She has also argued that words "Judicial Proceedings" used in Section 193 IPC can be bifurcated in two parts i.e. firstly proceedings before the Court and secondly proceedings taken by law before a public servant. For proceedings before the Court, sanction u/s 195 (1) (b) (i) Cr.P.C. is required but no sanction is required in case of proceedings taken by law before a public servant. She has relied upon Sushil Kumar & Ors. Vs. State of Haryana AIR 1988 SC 419. She has also vehemently asserted that for Section 193 IPC, authority conducting the proceedings on the basis of the documents involving may form an opinion that the documents produced before him were false documents and in the present case, IO Deep Singh while submitting the charge-sheet at Para-19 had formed such opinion and mentioned that "the plea taken by K.M. Sharan was found to be dubious and incorrect". According to her, although the documents were seized by PW104 K.Y. Guruprasad in other case on 27.03.2003 and he had handed over the same to IO Deep Singh after the registration of FIR in the present case but it was for IO Deep Singh to have formed such opinion regarding the documents being false and not for PW104 K.Y. Guruprasad.
6.2 Sh. Harsh Kumar Sharma, learned defence counsel for A-1 has contended that there is no evidence on record which may even remotely indicate that sum of Rs. 36 lacs was ill-gotten. It has been argued that even during the course of the investigation, a plausible explanation duly supported with documents had been furnished and despite there being documentary proof, investigating agency, for totally malafide and unwarranted reasons decided to charge-sheet the accused. It has been argued that best evidence has been held back and, therefore, adverse inference is required to be drawn against the prosecution.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 8 of 736.3 Sh. Sameer Vashisht and Sh. Manish Vashisht, learned defence counsels for A-2 have also drawn my attention towards various documents. They have also asserted that prosecution did not bring the best evidence before the Court. It has also been argued that even if the statement given by Mr. Vijay Gulati u/s 161 Cr.P.C. is taken into consideration, same would reflect that there was in fact a genuine transaction with respect to the immovable property situated at Bahadurgarh. It has been strongly canvassed that during the trial nothing at all surfaced which might show that the transactions of said two properties were bogus or sham or that the documents were manufactured subsequently.
6.4 Written submissions have also been placed on record.
Standard of Proof 7.0 Possession of disproportionate assets itself constitutes an offence of criminal misconduct and essentially such offence is based on the unstated presumption that such assets must have been acquired by corrupt or illegal means or by abuse of official position. No further proof or mens rea is required to be established.
7.1 Ingredients of the offence under Section 13(1) (e) of the 1988 Act are as under:-
(i) the accused is a public servant;
(ii) the nature and extent of the pecuniary resources of property found in his possession are disproportionate to his known sources of income.
7.2 Once, however, the aforementioned ingredients are established by the prosecution, the burden of proof shifts on the accused to show that the prosecution case was not correct. Accused is required to satisfactorily CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 9 of 73 account for possession by him of assets disproportionate to his income. The extent and nature of burden of proof resting upon the public servant cannot be higher than establishing his case by a preponderance of probability. However, it needs to be kept in mind that legislature has advisedly used the expression "satisfactorily account" and has thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth but also to satisfy the Court that his explanation was worthy of acceptance. Thus such burden has to be discharged in a satisfactory manner. Reference be made to State of MP Vs. Awadh Kishore Gupta 2004(1) SCC 691.
EVALUATION OF EVIDENCE 8.0 Let me now evaluate the evidence head-wise.
TABLE OF INCOME
S Income Relevant Amount as per Amount as per
No witnesses charge sheet (in defence
Rs.) (in Rs.)
A Carry home salary of Sh. Anand PW1, PW6, 1357273.10 1357273.10
Mohan Sharan PW7, PW11,
PW12, PW13,
PW14, PW15,
PW16, PW42,
PW78, PW107
B Car loan PW3, PW5 172845.00 172845.00
C Interest from accounts/ PW4, PW8, 89830.16 89830.16
investments PW9, PW10,
PW17, PW18,
PW19, PW20,
PW22, PW23,
PW26, PW28,
PW29, PW37,
PW40, PW43,
PW57, PW50,
PW51, PW64,
PW96
D House loan PW10, PW20 300000.00 300000.00
E Interest in PPF accounts PW19, PW50 22972.27 22972.27
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 10 of 73
F Rent from Gurgaon flat PW18, PW27, 492000.00 539000
PW88
G Income of Smt. Jyoti Sharan PW25, PW48, 263794.78 300036
(wife) from salary PW49, PW53,
PW55, PW58,
PW59,
PW60,PW63,
PW90
H Income of Smt. Jyoti Sharan PW63, PW59, 161410.00 161410.00
(wife) from Tuitions PW90
I Amounts received as gifts/loans PW70, PW71, 406000.00 406000.00
etc from relatives DW2
J Amount received on maturity of 200000.00 200000.00
BOI mutual Bonanza
K LIC Money back claim PW53, PW98 20000.00 20000.00
L Proceeds from enhancement of PW72 to PW75 5075.00 10075
NSC
Total 3491200.31 35,79,441.53
9.0 It would be very apparent from the aforesaid chart that defence
has no qualm with respect to the most of the entries figuring therein. Defence has merely averred that all the details have not been brought on record with respect to some of the entries. Interestingly, some entries have not been proved at all by CBI. Fact remains that in such type of matters, for the benefit of accused, these entries related to accrual of income are assumed to be true. Accused can, however, always, lead evidence to show any additional income which prosecution might not have taken into consideration or that any such income has been deliberately downplayed.
9.1 I have seen the testimony of concerned witnesses and documents proved by them as well. Salary details have been appropriately proved. There is no real dispute at all regarding car-loan, housing-loan, income of wife of A-1 from tuitions, LIC money-back claim, gifts etc. 9.2 As regards rental income from Gurgaon flat, testimony of PW27 Charanjeet is very convincing. Importantly, testimony of said witness is CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 11 of 73 unrebutted and uncontroverted.
9.3 As per defence, rental income was more than what projected by CBI. A careful perusal of record would show that tenant had been issuing rent through its three bankers i.e. Bank of Baroda, Indusind Bank and ICICI Bank. Testimony of PW88 Rajiv Malik talks about, inter alia, one cheque of Rs 45,000/- dated 10.10.2000. Defence wants to contend that it has not been considered besides two other cheques. This cheque of Rs 45,000/- rather stands already covered in one voucher of Rs. 81000/- whereby amount of Rs. 36,000/- and Rs. 45,000/- were deposited by A-1 in his account. Reference be made to Ex PW 18/B-5 (part of D-99). Moreover, A-1 had deposited all such cheques in his Bank of Baroda account. Such statement has been proved as Ex PW 18/E (D-95). Tenant had also provided details of various cheques paid towards rent. Such list has been proved as Ex PW27/A2. Total amount paid under cheques as per said list is Rs. 4,62,000/- but fact remains that such list does not contain one cheque of Rs. 30,000/- i.e. Ex PW 30/A ( D-122). This is naturally required to be added. It is visible that such cheque issued by tenant from his own account of PNB has already been considered by CBI. Thus the total rental income is rightly assessed as Rs. 4,92000/-. Defence is unnecessarily trying to dig out needless advantage on this score. Thus the rental income is held as Rs. 4,92,000/-.
9.4 As regards item G, defence has drawn my attention towards Ex PW59/DA. Defence has prayed for extra benefit of Rs.36242 while relying upon Ex. PW56/DA whereby assessment was reopened and reprocessed for the period assessment year 2002-03. I have seen such document. I feel that no further benefit of any additional income can be provided. Idea of notional income cannot be applied in a case of disproportionate assets. Defence has not been able to develop this point related to accrual of additional income allegedly arising out of reprocessing of ITR. Moreover, Jyoti Sharan had entered into witness box and if she felt that she had any further income on CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 12 of 73 this score, she could have easily said so in her deposition. Nothing is referred to in this regard in her evidence.
9.5 As regards item L, undoubtedly, A-1 had received maturity amount of Rs. 10075/- as per Ex PW75/G and he had invested Rs. 5000/- in NSC during the check period only. Such amount of investment has also been taken as asset already in item no. C of table of moveable assets. As per defence, CBI was not justified in calculating the interest income as Rs. 5075/- leaving aside the principal asset of Rs. 5000/-. To me also, this particular asset did no longer exist at the end of check period and, therefore, entire sale proceeds should have been considered. Thus the total income under this head is held as Rs. 10075/-.
9.6 Let me also consider aspect related to additional income right here. According to ld. defence counsel Sh. Harsh K. Sharma, there are following additional income accrued/receipts to A1 and his wife which have not been taken into consideration by CBI:-
ADDITIONAL INCOME ACCRUED TO JYOTI SHARAN (WIFE OF A1) S.N. Description as per defence version Amount (in Rs.) 1 Income as salary from the partnership business of A2 123000 2 Cash deposit entries of various gifts/savings 65000 3 Gift from mother-in-law with the help of which the payment 89000 was made to M/s Sterling Resorts. Reference has been made to testimony of DW8 4 Gift by grandmother of wife of A1. Reference is made to 50000 DW8 5 Amount left behind by mother of A1 as per Will dated 250000 13.2.2000 9.7 I have considered said points related to additional income and scanned necessary documents and deposition.CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 13 of 73
9.8 As regards, Jyoti Sharan earning salary from partnership business run by her father, my attention has been drawn to two things. Firstly, the deposition of Jyoti herself. She has deposed that she was looking after business of her father-in-law and was earning remuneration as well. Such part is totally unrebutted as no suggestion to the contrary has been given.
Secondly, house of A-2 was searched and cash book was seized from there. Such cash book itself reflects payment to her as salary and conveyance expenses. Reference be made to pages 10, 12, 46 and 47 of D-275. CBI cannot disown the same as it happens to be one of it's relied upon document. Moreover, CBI has not in any manner whatsoever come up with contention that such entries were bogus much less proving any such fact. Such income has not been considered by CBI anywhere. CBI has only concentrated upon her income from tuitions and lectureship only. I am, therefore, inclined to grant benefit to defence as even otherwise there is nothing to show that the entries in such cash-book were manipulated or forged later. All these entries add up to Rs, 1,23,000/-.
9.9 It has next been contended that there was accrual of receipts worth Rs. 65000/- by way of gift and savings. Strong reliance has been placed upon Ex PW37/A (D-131). There are cash deposit entries of Rs. 5000/-, 10000/- and Rs, 50000/-. However, merely by these cash-deposit vouchers, it will not be possible to hold that these had come through any gift or savings. Undoubtedly, CBI had place reliance on said document but then it was for the defence to fortify such theory in plausible manner. Mere verbal argument cannot take place of proof. Such alleged gift/savings worth Rs. 65000/- does not stand proved.
9.10 As regards gift from mother-in-law, undoubtedly the deposition of Jyoti Sharan is to such effect but without any substantiation or documentary proof, it will not be possible to believe such gift. Mere claim that cash amount was given to her would not take the case of defence anywhere.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 14 of 739.11 Regarding will left behind by mother of A-1, defence has examined two witnesses. As per defence, mother of A-1 had left behind a will dated 13.02.2000 whereby she had left a sum of Rs. 2.5 lacs for A-1 and his wife. Such will has been proved as Mark DW3/A. Its scribe (DW9 S.K. Sahijpal) and attesting witness (DW3 Dr. S.S. Bansal) have also graced the witness box. According to defence, original will was seized by CBI during investigation and, therefore, it had no option but to lead secondary evidence. I, however, do not find any merit in such contention. Firstly, there is nothing to show that such will had been ever seized by CBI. Secondly, the manner in which such will was executed is not free from doubt. Testator was admitted in hospital when her thumb impressions were obtained. Thirdly, it has not been explained as to from where, the testator had got such money. Her husband is an accused in the present case and even he has not explained as to how she had come in possession of such money. Moreover, there is nothing to show whether such will was ever acted upon and if yes when? There is nothing on record to show change of hand of such alleged money. It was to be received by A-1 as well. Finally, A-1 has not even bothered to inform his department that he had received such sum of Rs. 2.5 lacs as inheritance. Net result is that, court cannot believe any such income at all.
9.12 Similarly, alleged story of gift by grandmother is also not believable.
INDEPENDENT CONTRIBUTION COMING TOWARDS ACQUISITION OF IMMOVABLE PROPERTY S.N. Description projected by defence Amount (in Rs.) 1 By Anil Mohan Sharan with respect to payment made from 47420 time to time regarding acquisition of immovable proper by A1. (Total investments made by Anil Mohan Sharan was Rs. 397420/-.) However CBI has already considered sum of Rs. 3.50 lacs. (Reference be made to the testimony of DW2 Anil Mohan Sharan.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 15 of 732 Paid by A2 by making payment directly to the concerned 30000 agency by way of two DD of Rs.15000/- each. Reference be made to Ex. PW101/A (D-195).
3 Paid by Ms Neelam Sharan (wife of brother of A1) by way of 9000 cheque. Reference be made to Ex. PW101/A (D-195).
9.13 As per defence, the aforesaid contribution had come from outside and, therefore, required benefit should be awarded. I have carefully seen the relevant documents and deposition with respect to said defence contention. Undoubtedly, said contribution (except item no.1) had come from said relatives by way of demand drafts and cheque. Record also reflects so. Thus benefit of Rs. 39000/- needs to be given either as additional income or by deducting the amount from acquisition cost. It's better to consider such amount of Rs. 39000/- as additional income.
9.14 As regards item no1 above, mere bald assertion regarding further payment of Rs. 47420/- by cash is not sufficient from any angle whatsoever.
TABLE OF EXPENDITURE
S Expenditure Relevant Amount as per Amount as per
No witnesses charge sheet (in defence (in Rs.)
Rs.)
A Household/Kitchen expenditure By inference 452424.36 00.00
(taken as 1/3rd of net salary of
Shri Anand Mohan Sharan)
B Membership of various Clubs PW52, PW54, 25050.00 25050.00
PW65, PW76
C LIC Premium payment PW53, PW98 137333.00 103656.00
D Tour and Travels/ Resorts PW44, PW62 128344.00 128344.00
Membership
E Education of Children PW31, PW46, 166528.00 166528.00
PW56, PW93,
PW94
F C redit cards/bank charges/ PW57, PW61 2417.06 00.00
locker rent
G Repayment of housing loan PW10, PW20 452420.00 148500.00
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 16 of 73
H Electricity Charges PW39, PW66, 72505.00 50760.00
PW67
I Water charges PW64 765.00 765.00
J Wood work at Gurgaon Flat PW77 45780.00 00.00
K Income Tax paid by Sh. Anand PW91, 81057.00 00.00
Mohan Sharan
L Income Tax paid by Smt. Jyoti PW59, PW63, 730.00 730.00
Sharan PW90
M Advance to Sh. K.M. Sharan 80000.00 00.00
N Mobile telephone bill payment PW45 8979.00 00.00
O Telephone bills payment PW41 17183.00 00.00
P Purchase of books PW33 & PW47 6098.00 00.00
Q Other expenses 10980.00 00.00
Total 1688593.62 6,24,333
10.0 Let me take up each head one by one.
S. No. Particulars of expenditure under Head A Relevant Amount as per
witness charge-sheet
1 Household/Kitchen expenditure (taken as 1/3rd of 452424.36
net salary of Shri Anand Mohan Sharan)
10.1 Prosecution has taken 1/3rd of net salary as non-verifiable
expenditure (towards household and other miscellaneous kitchen
expenditure) and such amount has been accordingly calculated as Rs. 4,52,424.36. In such type of disproportionate assets matters, 1/3rd amount of the income is assumed to be spent on household expenditure. This is done in terms of case of Sajjan Singh Vs. State of Punjab AIR 1964SC 464 where it is observed that taking the most liberal view, it was not possible for any reasonable man to say that assets to the extent of Rs.1, 20,000/- was anything but disproportionate to a net income of Rs. 1, 03,000/- out of which at least Rs. 36,000/- must have been spent in living expenses.
10.2 Defence counsel has contended that CBI should have, only as a last resort, applied such inference formula and when, in the instant case, CBI CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 17 of 73 had been able to collect all the details with respect to all the expenditure, there was no need to have applied said formula. It has been contended that A-1 was a teetotaler and remained in government accommodation through out where there were attached kitchen gardens and therefore, kitchen expenses were negligible and cannot be taken as 1/3rd by any stretch. I, however, do not find any substance in such contention. No such fact has been deposed either. This contention has surfaced only during the course of final arguments. There cannot be and will not be any foolproof method to calculate kitchen expenses. No record is generally kept by any household for such day to day expenses or if maintained shown. Every household is required to spend a good amount to maintain kitchen and to run the same on daily basis. A-1 had been a senior bureaucrat and it does not lie in his mouth to say that he had not spent anything or just peanuts on kitchen. It was a full- fledged family where even wife of A-1 was earning and there would have been a decent expenditure on kitchen. Therefore, in such type of matters, as a rule, said formula is applied. Moreover, a bare expenditure of Rs. 4000/- to Rs. 5000/- per month would also take us to same figure. Situation herein cannot be treated differently. Such head, therefore, stands proved in view of judgment of Sajjan Singh (Supra).
S. No. Particulars of expenditure under Head B Relevant Amount as per
witness charge-sheet
1 Payment to Indian Habitat Centre PW52 500.00
2 Payment to Siri Fort Sport Complex (from 11.12.2001 to PW54 8700.00
27.02.2003).
3 Payment to Delhi Gymkhana Club, N.D. On 29.02.2002. PW76 10750.00
4 Payment to Delhi Golf Club Ltd. N.D. On 29,04.2002. PW65 5000.00
5 Payment of Haryana Officers Association on 26.10.1994. - 100.00
Total 25050.00
10.3 Reference in this regard be made to the testimony of PW52 Sh.
S. Prabhakaran, PW54 Sh. Anand Ballabh Khulbe, PW65 Sh. Sushil Kumkar Raina & PW76 Sh. L.D. Papnai. Accused had applied for membership of CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 18 of 73 various clubs/ institutions i.e. India Habitat Centre, Delhi Golf Club, Sri Fort Sports Complex, Delhi Gymkhana Club. Concerned officials from said clubs/ institutions have appeared before the Court and made reference to various documents showing payments with respect to membership. Payments are evidently during the check period. I have seen Ex. PW52/A & Ex. PW52/A (D-165), Ex. PW54/A (D-167), Ex. PW65/A, Ex. PW65/B & Ex. PW65/C (D-182), Ex. PW76/A, Ex. PW76/B, Ex. PW76/C1 & Ex. PW76/C2 which are part of D-178.
10.4 Except for the last head of Rs. 100/-, such expenditure, towards membership, is found to be proved as under:
(i) India Habitat Centre = 500.00
(ii) Sri Fort Sports Complex = 8,700.00
(iii) Delhi Golf Club = 5000.00
(iv) Delhi Gymkhana Club = 10,750.00
Total = 24,950.00
10.5 Expenditure under this head is, therefore, proved as Rs.
24,950/-.
S. No. Particulars of expenditure under Head C Relevant Amount as per
witness charge-sheet
1 Payment towards LIC Policy No. 171519759 (from PW98 103656.00
15.12.1997 to 27.03.2003)
2 Payment towards LIC Policy No. 110138473 held at LIC PW53 33677.00
Naraina Branch in the name of Smt. Jyoti Sharan for the period from 2/92 to 23.03.2002.
Total 137333.00 10.6 There are two witnesses to proved aforesaid expenditure. 10.7 As far as the testimony of PW98 Sh. J.S. Tanwar is concerned,
defence has no qualm. This witness is from LIC, Rohtak Branch and as per the record proved by him, A-1 was having policy no. 171519759 issued by their branch and A-1 had made payment of total premium of Rs. 1,03,656/-
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 19 of 73during the period from 15.12.1997 to 27.03.2003. Status report of policy has been proved as Ex. PW98/C (D-168). Testimony of this witness is unrebutted and even during the course of arguments, no dispute was raised by defence regarding the aforesaid expenditure.
10.8 Prosecution has produced another witness for proving the remaining expenditure amount of Rs. 33,777/-. This pertains to one policy which was in the name of Kumari Jyoti Batra. Such policy commenced on 28.08.1988 and as per PW53 Ms. Reeta Goswami, such policy was having sum assured of Rs. 50,000/-. LIC had received 27 installments from policy holder upto 27.03.2003 (end of check period). Address of policy holder was B-1/24, Janak Puri, New Delhi. I have also seen the letter Ex. PW53/A and the status report Ex. PW53/B which are part of D-158.
10.9 According to CBI, policy holder was wife of A-1 and it is admitted even by CBI that the policy had been taken even before she got married to A-1 but according to Prosecutor, premiums, which were paid after the marriage had come from A-1 and, therefore, these are required to be reckoned as expenditure made by A-1. I have seen the details appearing in the status report. Payment of premiums is by way of cheques also but CBI has not bothered to explain as to who had issued such cheques. Connected details have not been brought on record. Admittedly, policy holder is found to be Jyoti Batra and she is the one who eventually got married to A-1 but in order to prove that such premium payment, after her marriage, was made by none other than A-1, CBI should have placed on record sufficient supportive material. No bank record has been placed on record which may show that any such payment was made by A-1 through his bank. Merely because, she got married to A-1, it cannot be robotically assumed that premium payment was her husband and her husband alone. Possibility of making payment by her father cannot be ruled out. Moreover, when this witness was grilled in cross-examination, she could not give any satisfactory answer as to the CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 20 of 73 maker of payment. In view of aforesaid, the premium payment cannot be said to be by A-1 with respect to such policy bearing no. 110138473.
10.10 Thus, expenditure under this head stands proved as Rs. 1,03,656/-.
S. No. Particulars of expenditure under Head D Relevant Amount as per
witness charge-sheet
1 Payment to M/s Far Horizon Tour & Travels to undertake PW62 38619.00
tour to Ladakh from 21.06.2002 to 24.06.2002.
2 Payment to M/s Sterling Holiday Resorts (India) Ltd. by PW44 89725.00
Smt. Jyoti Sharan in cash for purchase of share
membership certificate for Bhimtal property.
Total 128344.00
10.11 During course of the arguments, Sh. H.K. Sharma, defence
counsel has not disputed the aforesaid entry related to tours & travels/resort membership As per prosecution, A-1's contribution was of Rs. 1,28,344/-. Reference be made to the testimony of PW44 Sh. Kulanand Kala & PW62 Dr. S.S. Bansal. I have also seen documents proved by them. PW62 Dr. S.S. Bansal has also entered into witness box as defence witness but in a different context altogether.
10.12 Keeping in mind the testimony of said two witnesses and documents proved by them and also the fact that defence has not disputed the aforesaid head, said expenditure of Rs. 1,28,344/- stands proved.
S. No. Particulars of expenditure under Head E Relevant Amount as per
witness charge-sheet
1 Tuition fee payment for Master Prateek Sharan for his PW31 49885.00
studies with DPS School, N.D. For the period from 10.08.2001 to 27.03.2003.
2 Tuition fee payment for Miss Rhea Sharan for her studies PW31 61345.00 with DPS N.D. for the period from 10.08.2001 to 27.03.2003.
3 School fee payment for Rhea Sharan for the studies with PW93 5600.00 Carmel Convent School, Chandigarh for the period from 01.04.2001 to 30.07.2001.
4 Payment to St. John's High School in respect of school PW94 8900.00 CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 21 of 73 fee of Prateek Sharan for the period from 30.03.2001 to 31.07.2001.
5 Payment towards tuition fee of Master Prateek Sharan for PW56 30146.00 his studies with Apeejay School, Faridabad for the period from 06.07.1996 to 06.10.1997 and from 21.10.1999 to 23.03.2001.
6 Payment towards tuition fee for Master Prateek Sharan to PW46 10652.00 Model School, Rohtak.
Total 166528.00 10.13 As per CBI, A-1 had made expenditure of Rs. 1,66,528/- towards
the education of his children. Reliance has been placed upon the testimony of PW31 Sh. D.K. Garg, PW46 Sh. Yogender Kumar Jain, PW56 Sh. Arvinder Singh Bhatti, PW93 Mrs. Alice Malhotra & PW94 Ms. Poonam Kapur. During the course of arguments, defence did not raise any argument with respect to aforesaid expenditure. I have seen the testimony of said witnesses and the documents proved by them. Expenditure of Rs. 1,66,528/- under said head stands proved.
S. No. Particulars of expenditure under Head F Relevant Amount as per
witness charge-sheet
1 Payment towards credit cards no. 54217684 & 05000103 427.06
held at Vijaya Bank, Ballabhgarh.
2 Payment towards charges for minimum balance in SB A/c 50.00
No. 51192 held at Union Bank, Faridabad.
3 Payment towards locker rent held at Canara Bank, PW61 800.00
Bhagwan Das Road, N.D.
4 Payment towards collection charges in SB A/c No. 15199 1140.00
held at Canara Bank, Bhagwan Das Road, N.D.
Total 2417.06
10.14 At the very outset, Sh. H.K. Sharma, defence counsel has
contended that though sufficient material has not been brought on record yet defence does not dispute the expenses alleged in this regard with respect to rent of locker, credit card etc. Since, during course of the final arguments, expenditure under this head has been admitted, entry with respect to expenditure of Rs. 2,417 (nearest rounding off ) stands proved.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 22 of 73
S. No. Particulars of expenditure under Head G Relevant Amount as per
witness charge-sheet
1 Repayment of housing loan received from Bank of PW10 & 452420.00
Baroda, Faridabad for the period from 21.08.1995 to PW20 28.01.1999.
Total 452420.00 10.15 Reference in this regard is required to be made to two witnesses i.e. PW10 Sh. S.K. Manocha and PW20 Sh. Ram Das. 10.16 There is no dispute that A-1 had applied for housing loan from
Bank of Baroda, Faridabad Branch. Loan of Rs. 3 lacs was sanctioned to him on 31.05.1995. According to deposition of PW10 Sh. Manocha, A-1 had repaid the entire amount along with interest during the period 21.08.1995 to 28.01.1999 and such repaid amount was Rs. 4,52,420/-. He also made reference to various vouchers which are contained in D-67. Letter contained in D-68 has also been proved as Ex. PW10/A. 10.17 Learned defence counsel has contended that he does not dispute the vouchers placed on record but if the amount calculated in such vouchers is calculated, expenditure amount comes to Rs. 1,48,500/- and, therefore, the expenditure is proved only to the extent of Rs. 1,48,500/-. I have seen the vouchers contained in Ex. PW10/A3 to Ex. PW10/A14 and the total amount of these vouchers comes to Rs. 1,48,500/- (25,000.00 + 4,000.00 + 3,500.00 + 24,000.00 + 16,000.00 + 35,000.00 + 8,000.00 + 4,500.00 + 4,500.00 + 8,000.00 + 8,000.00 + 8,000.00).
10.18 It would be, however, important to make reference to Ex. PW10/A (D-68). It happens to be in the hand of same Mr. Manocha and in his such letter, he himself claimed that other vouchers would be submitted after the tracing out the same. Such other vouchers were also seized by CBI under letter Ex. PW10/C (D-70). Mr. Manocha made reference to this letter and also to 15 vouchers. Thus the other vouchers have also been referred by the CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 23 of 73 concerned witness during the trial.
10.19 Statement of account of such loan facility has been proved as Ex. PW10/A1 by PW10 Sh. Manocha and all the deposit entries are reflected therein. There is seal of the bank over such statement with the endorsement that it is certified true copy as per the bank record. Such statement Ex. PW10/A1 has strong persuasive value and there are various entries, first being dated 02.08.1999 for Rs. 25,000/- and last being of Rs. 16,000/- dated 28.01.1999.
10.20 Interestingly, even A-1, in his statement u/s 313 Cr.P.C. merely claimed that such expenditure was matter of record. Reference be made to his response qua question no.22. Therefore, I hold the expenditure under this head to be of Rs. 4,52,420/-.
S. No. Particulars of expenditure under Head H Relevant Amount as per
witness charge-sheet
1 Payment towards installation of electricity connection at PW66 275.00
Flat No. 125, Sector-15 HOPE Apartment, Gurgaon on 23.01.1996.
2 Payment towards electricity consumption bills in respect PW39 1678.00 of Flat No. 125, Sector-15 HOPE Apartment, Gurgaon for the month of 7/97.
3 Payment towards electricity bill of Govt Flat at 7/15, PW67 42236.00 Bhagwan Das Road, N.D. for the period from 12.09.2001 to 06.02.2003.
4 Payment towards electricity bill of Govt accommodation PW67 28316.00 occupied while working as ADC-cum-DRDO Rohtak for the period from 03.10.1997 to 11.10.1999.
Total 72505.00 10.21 Defence has admitted expenditure of Rs. 50,760/- only under
this head. Reference in this regard be made to the testimony of PW39 Sh. Rakesh Kumar Jaiswal who has proved letter Ex. PW39/A (D-179) and the electricity expenditure with respect to DDA Flat No. 15/7, Bhagwan Dass Road, New Delhi which was, during the relevant period, under the possession CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 24 of 73 and accommodation of A-1. Computer generated statement and relevant pages of the electricity bills have been duly proved by the prosecution. In response to the suggestion put by the defence, PW39 Rakesh Kumar Jaiswal admitted that it was correct as per Ex. PW39/B, payment of Rs. 50,760/- had been reflected as having been received for billing cycle January 2002 to March 2003.
10.22 It is, however, interesting to note that even as per the case of CBI, expenditure on electricity consumption with respect to said flat for the period 12.09.2001 to 06.02.2003 was Rs. 42,236/- only. This is very much apparent from Ex. PW39/D wherein the actual payment dates are mentioned.
10.23 PW66 Sh. Harish Kumar has also proved expenditure related to electricity consumption regarding Flat No. 125, HOPE Apartments, Sector-15, Part-II, Gurgaon and as per ledger statement, concerned consumer had paid Rs. 79,751/- towards electricity charges from July 1997 to March 2003. However, prosecution has restricted such expenses to Rs. 1,678/- only. It is primarily due to the fact that aforesaid house was on rent and as per the tenancy agreement, electricity dues were to be borne by the actual user i.e. tenant. As per the case of CBI, A-1 had only made payment of Rs. 1,678/- of electricity consumption for said Flat No. 125, HOPE Apartments for the month of July 1997. Such amount is also not disputed by the defence.
10.24 During course of the arguments, defence also did not dispute aforesaid expenses of Rs. 275/- which are towards the installation of electricity connection in such flat. Documents in respect thereof are found contained in Ex. PW63/B (D-173) which also indicate that A-1 had made payment of Rs. 275/- while applying for domestic electricity connection on 23.11.1996.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 25 of 7310.25 It also appears from the documents on record that A-1 was occupying one official accommodation known as 2/2 Officers' Colony, Rohtak, Haryana when he was posted as ADC, Haryana from 03.10.1997 to 11.10.1999 and during that period he had spent a sum of Rs. 28,316/- towards electricity consumption. In order to prove such expenses, prosecution has though examined PW67 Sh. Harsh Ahuja but fact remains that he has not been able to substantiate aforesaid expenses in the desired manner. He has made reference to some of the counterfoils with respect to the bills in question which had been seized vide memo Ex. PW67/A (D-61) and Ex. PW67/B (D-262) but when asked who was the registered consumer and what was the address of such accommodation, he could not give any answer. So much so, he also failed to tell whether accommodation was private one or official one. It seems to me that few more relevant documents in this regard as contained in D-180 and D-181 were not shown to him and these documents would have positively connected A-1 with said expenditure taking support from the electricity connection number and meter number. Be that as it may, since PW67 Harsh Ahuja has not been able to prove the aforesaid expenses in the desired manner and since no other witness has been examined with respect to aforesaid head, alleged expenditure of Rs. 28,316/- incurred by A-1 while he was occupying official residence at Rohtak for the period from 03.10.1997 to 11.10.1999 does not stand proved. The total expenditure, proved under this head, thus comes to Rs. 44,189/-.
10.26 However, such expenditure cannot be reckoned. It would be important to mention about one circular of CBI i.e. circular No. 21/40/99- PD(Pt.) dated 29.11.2001. As per said circular, instructions have been issued for standardizing procedure for investigation into the assessment of wealth possessed by public servant and it was prescribed that non- variable expenditure such as on kitchen, household, clothing etc should be taken as 1/3rd of gross salary as a last resort after attempting to quantify the expenses broadly under each of these heads by verification. It is also CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 26 of 73 mentioned that electricity and water charges are also not to be computed separately when unverifiable expenditure is computed in the above mentioned manner. But the other expenses such as education, telephone, pleasure trip etc should be calculated as per the information or actual bills.
10.27 Since CBI has applied formula of one-third for determining non- verifiable expenditure, such electricity expenses cannot be considered.
S. No. Particulars of expenditure under Head I Relevant Amount as per
witness charge-sheet
1 Payment towards water consumption bills in respect of PW64 765.00
Flat No. 7/15, Bhagwan Das Road, New Delhi for the period from 10.08.2001 to 3/2003.
Total 765.00 10.28 PW64 Sh. Alok Dass has proved the expenditure amount of Rs.
765.00 (Rs. 552.00 paid on 19.09.2002 + Rs. 213.00 paid on 19.12.2001). Relevant documents have also been proved by him. However, applying said analogy as contained in CBI circular, even water expenses cannot be reckoned.
S. No. Particulars of expenditure under Head J Relevant Amount as per
witness charge-sheet
1 Payment of M/s D.S. Doors (P) Ltd. Faridabad for PW77 45780.00
woodwork got done at Flat No. 125, HOPE Apartment, Gurgaon during May 1996.
Total 45780.00 10.29 According to prosecution, A-1 was having Apartment No. 125,
HOPE Apartment, Gurgaon and he had got woodwork done at his said flat and towards such woodwork, he had spent Rs. 45,780/-. Prosecution has examined only one witness on this aspect.
10.30 Unfortunately, such witness i.e. PW77 Sh. Dhan Singh Sharma has not supported the case of prosecution. He though did admit that such CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 27 of 73 apartment belonged to A-1 and that there was also woodwork at said apartment to the tune of Rs. 45,780.45 but in the next breath, he claimed that one Mr. Ahuja who was tenant in said apartment had got the woodwork done and it was Mr. Ahuja who had made the payment. Since, he did not support the case of prosecution, he was cross-examined by the prosecution with the permission of the Court but he remained adamant and did not attribute the expenditure to A-1. No other witness has been examined for proving aforesaid expenditure and, therefore, such entry does not stand proved.
S. No. Particulars of expenditure under Head K Relevant Amount as per
witness charge-sheet
1 Payment of income tax on rent received from Flat No. PW91 29515.00
125, HOPE Apartment, Gurgaon for the assessment year 2000-2001 through challan dated 30.06.2000.
2 Payment of self income tax for the assessment year 20464.00 2000-2001 through challan dated 31.03.2000.
3 Payment of self income tax for the assessment year 31178.00 2002-2003.
Total 81057.00 10.31 In this regard, defence has contended that since net salary has
been taken after deduction of income tax, CBI is not justified in reckoning such expenditure. I, however, do not find any substance in such argument. Undoubtedly, TDS had been deducted and net salary has been taken. But, at the time of filing returns, if any assessee is required to make extra payment of tax keeping in mind the income accruing from other sources, such expenses are required to be taken into consideration.
10.32 Reference be made to testimony of PW 91 and PW99 Mohar Singh as well.
10.33 PW91 is official from the concerned IT ward. I have seen his testimony and also the documents proved by him. The document mentioned by him clearly indicates and proves expenditure of Rs. 29,515/-.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 28 of 7310.34 No other IT official has been examined. But certain documents were recovered from the house of A-1 during the search in question. Such documents also included several income tax returns and cash deposits towards return. If I calculate the clear entries, the total would come to Rs. 11,300/- ( 3000+2500+300+5500). These have been proved as Ex PW 99/D. Though these should have also been got appropriately proved through concerned official of income tax yet keeping in mind the fact that these had been recovered from the house of accused no.1, I don't find any impropriety in taking those into stock. Thus the total expenditure stand proved as 40815/- (29515+11300).
S. No. Particulars of expenditure under Head L Relevant Amount as per
witness charge-sheet
1 Payment of income tax for the assessment year 2001-02 PW63 730.00
through challan dated 25.03.2002.
Total 730.00
10.35 Such expenditure has been proved by PW63 Sh. Amarnath
Rawal. He has also proved letter Ex. PW63/A (D-163) and as per record maintained at Income Office Headquarters, assessee i.e. Smt. Jyoti Sharan had paid as tax Rs. 730/-. Moreover, there is no dispute from the side of defence over such expenditure and, therefore, such expenditure of Rs. 730/- stands proved.
S. No. Particulars of expenditure under Head M Relevant Amount as per
witness charge-sheet
1 Withdrawal from SB A/c No. 59094 on 23.08.1997 80000.00
through cheque no. 423036 drawn in favour of accused K.M. Sharan.
Total 80000.00 10.36 No light has been thrown regarding such expenditure. Learned
prosecutor has not been able to draw my attention to any deposition or document proved during the trial which might show and substantiate such CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 29 of 73 expenditure.
S. No. Particulars of expenditure under Head N Relevant Amount as per
witness charge-sheet
1 Payment of monthly bills in respect of Mobile No. PW45 8979.00
9810700448 by Smt. Jyoti Sharan wife of accused A.M. Sharan for the period from 30.06.2002 to 04.03.2003.
Total 8979.00
S. No. Particulars of expenditure under Head O Relevant Amount as per
witness charge-sheet
1 Payment towards telephone no. 23073883 subscribed in PW41 17183.00
the name of Smt. Jyoti Sharan (installation charges for Rs. 3296/- and telephone bills amounting to Rs. 14183/- for the period from 11.10.2001 to 27.03.2003).
Total 17183.00 10.37 There is no dispute regarding mobile number and telephone
number as such. Defence has merely claimed that it's not made clear by CBI as to who had made the payment.
10.38 For mobile-bills payment, reference be made to Ex PW45/B. The total payment made during the check period comes to Rs. 8979/-. I have also seen the testimony of PW45 Sh. R.K. Singh. Undoubtedly, the witness does not know as to who actually paid the bills but then the question would arise as to who could be other than A-1 or his wife? Defence cannot be permitted to dig out any advantage merely due to the fact that witness does not know about the maker of payment. If defence felt that payment had been made by someone else, it could have substantiated such fact. Moreover, wife of A-1 had entered into witness box as defence witness and she could have whispered something on this score. Her testimony is conspicuously silent on this score. Thus, such expenditure stands proved.
10.39 Similarly for telephone-bills payment, reference be made to testimony of PW41 Sh Ramesh Chawla. Record Ex PW41/B proved by him CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 30 of 73 clearly proves the expenditure for the same reason. There is no reason whatsoever to disbelieve such computer-generated record. Merely because bills or duplicate bills have not been placed on record would not mean that there was no payment. Such expenditure also stands proved.
S. No. Particulars of expenditure under Head P Relevant Amount as per
witness charge-sheet
1 Payment to M/s Tushar Publication, N.D. for purchase of PW47 4235.00
academic books on 24.03.2003.
2 Payment to M/s Scholastic India (P) Ltd., Gurgaon. PW33 1863.00
Total 6098.00
10.40 Ms. Sharma has drawn my attention towards the testimony of
two witnesses i.e. PW33 Sh. Sachin Rastogi and PW47 Sh. Gopal Jha.
10.41 As far as PW33 Sh. Sachin Rastogi is concerned, he is from M/s Scholastic India Pvt. Ltd. and he was shown various original cash memos and he deposed that payments reflected in such cash memos were received from the concerned student. Such cash memos have been proved as Ex. PW33/B to Ex. PW33/E. Following is the details of payments made in connection with the aforesaid expenditure.
S. No. Date of cash memo Amount
1 17.09.2000 600.00
2 17.02.2003 40.00
3 05.05.2000 525.00
4 09.11.2000 700.00
Total 1865.00
10.42 Undoubtedly, it is not very clear as to who had issued the
cheque but it does not lie in the mouth of accused to disown such petty expenditure towards purchase of books which as a parent he was supposed to make. Expenditure made in this regard comes to Rs. 1,865/-.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 31 of 7310.43 As regards the payment made to M/s Tushar Publication, I fully agree with the defence contention that such expenditure does not stand proved. PW46 Sh. Gopal Jha has merely proved price-list for academic books as per the rates prescribed by DPS. He has nowhere whispered that any such set of academic books was purchased by anyone or that payment was made by anyone much less saying anything about A-1 or his wards.
10.44 Accordingly, expenditure under this head is restricted to Rs. 1,863/- only.
S. No. Particulars of expenditure under Head Q Relevant Amount as per
witness charge-sheet
1 Purchases through credit card no. 5421768305000103 PW57 7494.20
under saving bank A/C No. 1362.
2 Payment for petrol in Santro Car No. DL-2C 6851 during 3486.00
the period from 24.02.2003 to 27.03.2003.
Total 10980.20
10.45 According to defence, these other expenses have been
described vaguely and moreover no expense has been proved by prosecution.
10.46 Ms. Sharma has drawn my attention towards the testimony of PW57 Sh. Ram Lal Kardam, Chief Manager, Vijaya Bank. According to record proved by him, A-1 had been issued one credit card and he had made following purchases with the help of such credit card:
S. No. Date Amount
1 28.07.1995 Rs. 2,194.20
2 27.10.1995 Rs. 5,300.00
10.47 Testimony of such witness is completely unrebutted and
uncontroverted.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 32 of 73
10.48 As per CBI, A-1 had also spent a sum of Rs. 3,486/- for filling
petrol in Santro Car on 24.02.2003 to 27.03.2003 but it seems that this particular item has not been proved at all.
10.49 Thus, total expenses under this head comes to Rs. 7,494/-.
IMMOVEABLE ASSET
S.No Immovable Asset Relevant Amount as per Amount as per
witnesses charge sheet (in defence (in Rs.)
Rs.)
A Flat No. 125, Block-9, HOPE PW101, 1003836.00
Apartment, Gurgaon PW104
11.0 There is only one afore-referred immoveable asset. There is no
dispute regarding its acquisition. However, as per defence, asset's cost should be as per the principal cost. According to him, accused had taken loan from bank and his relatives had also contributed for such acquisition. It has been argued though the payment was of aforesaid amount yet the principal cost was of Rs. 7.3 lacs only. I am not impressed with such contention at all. Testimony of PW 101 Sh. R.K.Sharma is very clear. Documents proved by him also indicate the acquisition cost as Rs. 10,03,836/- only. Reference be made to Ex PW101/A as well. Thus, worth of just immoveable asset is held as Rs. 10,03,836/-.
MOVABLE ASSETS AT THE END OF CHECK PERIOD S. No. Movable Assets Relevant witnesses Amount as per Amount as per charge sheet defence (in Rs.) (in Rs.) A Deposits in various banks PW4, PW8, PW9, 896108.80 896108.80 PW17, PW18, PW23, PW26, PW28, PW29, PW37, PW40, PW51 B Deposits in PPF Accounts PW19, PW50 163472.27 114500.00 CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 33 of 73 C National Saving Certificates PW72, PW73, 40000.00 40000.00 PW74, PW75 D Bonds of ICICI PW68 5750.00 5750.00 E Car- Santro make PW79 399821.00 399821.00 F Rado watch PW97 61500.00 0 H Cyber Shot Camera PW36 24700.00 0 I Diamond pendent with gold PW99/PW105 10100.00 0 and pearl string J Samsung Mobile PW32 14800.00 0 K Cash found during search PW99, PW105 3614970.00 14970 at residence L Other household articles PW38, PW69 218670.00 0 TOTAL 5449892.07 1471149.80 S. No. Particulars of movable assets under Head A Amount as per charge sheet (in Rs.) 1 Bank balance in SB A/c No. 014213 in the name 262697.39 of accused A.M. Sharan held at SBI, Vikas Sadan, New Delhi as on 27.3.2003.
2 Bank balance in SB A/c no. 27108 in the name 312963.00 of accused A.M. Sharan held at Bank of Baroda, Gurgaon.
3 Bank balance in SB A/c no. 75084 in the name 46,328.79 of Smt. Jyoti Sharna held at Bank of Baroda, Faridabad as on 27.3.2003.
4 Bank balace in SB A/c No. 001301021433 in the 10667.00 name of Smt. Jyoti Sharan held at ICICI Bank Ltd. Chandigarh as on 27.3.2003 5 Bank Balance found in FD No. 001315667028 17231.00 with ICICI Bank, Chandigarh in the name of Smt. Jyoti Sharan as on 27.3.2003 6 Bank balance found in FD No. 001315069310 10877.00 with ICICI Bank, Chandigarh in the name of Smt. Jyoti Sharan as on 27.3.2003.
7 Bank Balance in SB A/c No. 59094 of Smt. Jyoti 8615.00 Sharan held at Bank of Rajasthan Ltd. Janakpuri as on 27.3.2003.
8 Bank balance in SB A/c No. 4807 of Smt. Jyoti 6296.12 Sharan held at State Bank of Mysore, Janakpuri, New Delhi as on 27.3.2003.
9 Bank Balance in SB A/c No. 15199 of Smt. Jyoti 220433.50 Sharan held at Canara Bank, Bhagwan Das Road, New Delhi.
Total 896108.80 12.0 With respect to item A, various bank officials have been
examined. Moreover, even defence has not raised any dispute with respect CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 34 of 73 to the outstanding balance lying in the different bank accounts. Keeping in mind the testimony led by the prosecution coupled with the admission with respect to the aforesaid asset, worth of bank balance as on 27.03.2003 is held as Rs. 8,96,108.80.
S. No. Particulars of movable assets under Head B Relevant Amount as per charge
Witness sheet (in Rs.)
1 Bank balance in PPF A/c no. 5933 in the name of PW 19 137472.27
accused A.M. Sharan held at SBI, Faridabad as on
27.3.2003
2 Bank balance in PPF A/c No. 13715 in the name PW 50 26000.00
of Smt. Jyoti Sharan held at SBI, Faridabad as on
27.3.2003.
Total 163472.27
12.1 A-1 was holding PPF Account with SBI Faridabad and his wife
Ms. Jyoti Sharan was having such account in SBI, Faridabad. Concerned witnesses have entered into witness box.
12.2 PW19 Nathu Ram Chauhan has proved the relevant record pertaining to statement of account of PPF Account No. 5933 of A-1. According to him, contribution made by A-1 during the period of 29.03.1997 till 27.03.2003 was of Rs. 1,14,500/-. The outstanding credit balance was of Rs. 1,37,472/-. Defence contends that only the contribution made during the check period should be considered and not the outstanding balance. It is also important to mention here that the prosecution has not taken into stock any such deposit under the head of expenditure. It would be in the interest of justice, if I confine myself to the contribution made during the check period only. I have also seen Mark AX-2 and Mark AX-3 (D-84). Keeping in mind the specific deposition made by PW19 Nath Ram Chauhan , worth of asset pertaining to A-1 is held as Rs. 1,14,500/-.
12.3 As regards PPF Account of wife of A-1, I have seen the testimony of PW50 Sh. Vipin Adlakha who has deposed that she was having PPF Account No. 13715 which was opened on 24.03.2003 with Rs. 1,000/-
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 35 of 73and then Rs. 25,000/- was deposited on 25.03.2003. According to him, there was balance of Rs. 26,000/- as on 27.03.2004. There is no reason to disbelieve such statement of account Ex. PW50/E maintained by the concerned bank. Thus, total worth of asset under such head comes to Rs. 1,40,500/- (1,14,500.00 + 26,000.00).
S. No. Particulars of movable assets under Head C Amount as per charge sheet (in Rs.) 1 Purchase of NSC no. 6NS 25 EE 8210022 by 10000.00 accused A.M. Sharan from Head Post Office, Rohtak on 30.3.99.
2 Purchase of NSCs No. 12 CC 698594 for Rs. 12000.00 1000/- NSC No. 12 CC 698595 for Rs. 1000/-
and NSC No. 07 EE 159412 for Rs. 10000/- all issued on 31.3.1995 in the name of accused A.M. Sharan from Sub Post Office, NH-14 Faridabad.
3 Purchase of NSCs No. 25 CC 306376 for Rs. 13000.00 1000/- NSC No. 25 CC 306377 for Rs. 1000/-
NSC No. 25 CC 306378 for Rs. 1000/- and NSC No. EE 803686 for Rs. 10000/- all issued on 30.3.1996 in the name of accused A.M. Sharan from Sub Post Office, NIT, Faridabad 4 Purchase of NSC No. 01 DD 151064 from Sub 5000.00 Post Office, Mandi, Dabwali in the name of Master Prateek Sharan on 15.3.1994.
Total 40000.00 12.4 Since the Defence has not disputed the aforesaid head of asset,
there is no real requirement of discussing in detail the documents proved in this regard or the testimony of concerned witnesses i.e. PW72 Sh. D. C. Gupta, PW73 Sh. Bal Singh, PW74 Sh. Kamal Singh & PW75 Sh. Mohan Lal Gupta. All these witnesses are from the concerned post offices and have proved relevant documents. Therefore, worth of movable asset, towards NSCs, is held as Rs. 40,000/-.
S. No. Particulars of movable assets under Head Relevant Amount as per charge
D Witness sheet (in Rs.)
1 Purchase of ICICI Bond in the name of PW68 5750.00
Prateek Sharan dt. 28.5.97.
Total 5750.00
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 36 of 73
S. No. Particulars of movable assets under Head E Relevant Wit- Amount as per charge
ness sheet (in Rs.)
1 Purchase of Car No. DL 2C 6851 from Hyundai PW79 399,821
Motors
Total 399,821
12.5 Testimony of PW68 D. Ganesh is unrebutted and he has proved
the relevant documents. Similarly, testimony of PW79 Atul Chadha would indicate the acquisition of car by A-1. His testimony is also unrebutted and moreover the aforesaid two assets mentioned under Heads D & E are not disputed by the defence. These stand proved accordingly.
S. No. Particulars of movable assets under Head F Relevant Amount as per charge
Witness sheet (in Rs.)
1 Cost of watches including Rado watch found at PW97 61500.00
the residence of accused A.M. Sharan
Total 61500.00
12.6 There is no dispute that search had taken place at the house of
A-1 and observation memo Ex. PW99/A (D-4) was prepared. During such search, inter alia, two Rado Watches were also recovered. At serial no. 44, there is a mention regarding recovery of 16 wrist watches including two Rado Watches and as per the remarks column, these had been gifted to A-1 by friends and relatives over a period of time. PW105 Insp. Alok Kumar was also part of such recovery team and he had also, besides Mohar Singh, signed observation memo Ex. PW99/A. Somehow they both did not make specific mention with respect to the Rado Watch in question.
12.7 According to CBI, a guarantee card was also recovered during such search and on the basis of such guarantee card, investigating agency was able to reach the vendor i.e. M/s Rajan Watch Company and cash memo was accordingly obtained from vendor. Such cash memo has been proved as Ex. PW97/A (D-207). Under such cash memo/bill, Rado Sintra was sold to one Om Prakash for Rs. 61,500/- on 15.03.2003.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 37 of 7312.8 Undoubtedly, there is one surprising aspect which has not been properly explained by CBI. Such cash memo is dated 15.03.2003 but the guarantee card, allegedly with respect to the same watch, is of different date. Such guarantee card has been proved as Ex. PW97/C (D-307) and it somehow bears the date of 14.03.2003. PW97 Ravi Thakur, partner of vendor firm was put a court question in this regard and the court question and answer given by him are extracted as under:
Court Q. How do you correlate this guarantee card with the aforesaid cash memo?
Ans. It can only be confirmed from the model number mentioned on the watch itself. Date of guarantee card is 14.03.2003 whereas the date of sale as per cash memo is 15.03.2003. I cannot correlate without seeing the watch but such type of watches are sold on rare occasion. It is not possible that such a costly watch is sold on two consecutive dates and, therefore, the guarantee card should be of said cash memo only.
12.9 During investigation, CBI should have gone for the necessary clarification on this material aspect. Undoubtedly, watch is costly one but then merely on the basis of supposition, it will not be possible to connect the bill with the watch and guarantee card recovered during the search. Accused had claimed during the search itself that such watch had been gifted and even the cash memo is found to be in the name of one Om Prakash. If CBI was of the opinion that it was not a gifted item, it should have placed on record sufficient corroborating material and should have also brought on record something to demonstrate that accused had made a false assertion during the investigation. Though guarantee card has been recovered and there is close proximity of dates between such guarantee card and the cash memo Ex. PW97/A but without correlating the details with the help of model number mentioned on the watch, it will neither be feasible nor justifiable to straightway fasten the liability upon accused in a serious criminal matter like this. Thus, though fact remains that Rado Watch was recovered from the CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 38 of 73 house of accused yet acquisition cost claimed as Rs. 61,500/- does not stand proved for want of sufficient linking material.
S. No. Particulars of movable assets under Head H Relevant Amount as per charge Witness sheet (in Rs.) 1 Cost of one cyber shot (camera) found during 24700.00 the house search of accused A.M. Sharan.
Total 24700.00 12.10 As regards Cyber Shot Sony Camera, it is not in dispute that it
was also recovered in the said house search. Such camera is mentioned at serial no. 9 and in the remarks column, it has been mentioned that it had been allegedly gifted by one friend Sh. Rajiv Rai in the year 2001. Bill of such camera was also recovered from the house of accused and such bill has been proved as Ex. PW36/A (D-208). Such bill, when recovered during the search, was also signed by attesting witness Mohar Singh. His signatures also appears on the top right side of the bill. Bill shows that cost of such camera was Rs. 24,700/-. Amount was paid in cash. It does not bear the name and address of the buyer. Undoubtedly, as per defence, it had been gifted by one Rajiv Rai but fact remains that such Rajiv Rai has not been brought in witness box by the defence. Merely because accused claimed during the investigation that it had been gifted by his friend or relative, onus, to my mind, would not stand discharged when a bill was also recovered from his house only. Normally, whenever any such thing is gifted, bill is not given to the person for whom such gift is bought. Be that as it may, it was a particular fact which was within the special knowledge of the accused and such unique fact was required to be proved by accused as per Section 106 of Indian Evidence Act. Since, camera and the bill had been recovered from the house of accused, worth of asset is held as Rs. 24,700/-.
S. No. Particulars of movable assets under Head Relevant Amount as per charge
I Witness sheet (in Rs.)
1 Cost of one diamond pendent with gold and 10100.00
pearl string found in the locker no. 20 of
accused A.M. Sharan and Smt. Jyoti Sharan
at Canara Bank, Bhagwan Das Road, N.D.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 39 of 73
S. No. Particulars of movable assets under Head Relevant Amount as per charge
I Witness sheet (in Rs.)
Total 10100.00
12.11 It is not in dispute that locker no. 20 held by A-1 and his wife
Jyoti Sharan with Canara Bank Branch situated at Bhagwan Das Road was searched on 02.04.2003.
12.12 One independent attesting witness i.e. PW100 S.K. Verma has been examined to prove such recovery. He has deposed that jewellery articles and gold coins were recovered from such locker and he has also proved the memo Ex. PW100/A. As per such memo, one diamond pendent was also recovered. Its year of acquisition has been claimed as 1995-2000, weight as 12.6 grams and the total price as Rs. 10,100/-. Government valuer Sh. O.P. Malhotra was also requested to join such proceedings and the cost was assessed on the basis of valuation report given by Sh. Malhotra. Such valuation report has been proved as Ex. PW100/B yet fact remains that Sh. Malhotra has not entered into witness box. It is also not made clear by prosecution as to whether acquisition cost taken with respect to such diamond pendent is as per the value of metal in the year 1995 or in the year 2000. Value of stone has been taken by Sh. Malhotra as Rs. 7,500/- and value of gold has been taken as Rs. 3,350/-. Item has been described as one diamond pendent in gold with pearl string. Recovery is not disputed and the defence has merely attempted to dispute the cost/value.
12.13 However, merely by verbal assertion, defence cannot dislodge such valuation. If at all it felt that valuation is improper, it could have, in defence, produced some evidence but nothing of that sort has been done. Undoubtedly, PW100 S.R. Verma is not found to be very sure and certain about the valuation report prepared by Sh. O.P. Malhotra. Though Sh. Malhotra has not graced the witness box yet fact remains that such item was CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 40 of 73 recovered from the locker of accused and his wife. Wife of A-1 has entered into witness box but she has also not thrown any light with respect to the price of such pendent. A-1 himself has also not entered into witness box and, therefore, despite said hiccup arising out of non-examination of valuer, I am constrained to hold the worth of such asset as Rs. 10,100/-.
S. No. Particulars of Asset under Head J Relevant Amount as per charge
Witness sheet (in Rs.)
1 Cost of Samsung Mobile set found during 14,800
search having Airtel chip in the name of Smt.
Jyoti Sharan
Total 14800.00
12.14 As regards Samsung Mobile, prosecution is heavily relying upon
bill Ex. PW32/A. Such bill contains IMEI Number (350127904593784) of
handset Samsung make model A200. Bill is of 20.06.2002 and cost of handset is Rs. 14,800/-. It was sold by M/s Jaina Mobile Plaza and as per the endorsement appearing on bill, payment was made by credit card.
12.15 Importantly, name of the buyer is one Alok Kumar of Prithviraj Road. I have seen testimony of PW32 Sh. Rajiv Kumar Jain and he has though, undoubtedly, proved the aforesaid cash memo yet in his cross- examination, he admitted that the payment was by way of credit card and that the details of the credit card were not mentioned in the bill. Such details have also not been brought on record by CBI. Moreover, CBI has not collected any material to show that Samsung mobile handset in question, which is alleged to be the asset of A-1, also bears the same IMEI Number. I have seen the seizure memo Ex. PW105/A (D-204) whereby one LG handset, one Nokia cell phone, three Samsung mobile phones were seized. IMEI number of only one Samsung type mobile has been mentioned but it bears different IMEI number i.e. 350127/89/660758/4. In view of aforesaid, it will not be possible to link the aforesaid bill with the handset in question merely on the basis of CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 41 of 73 assumption.
S. No. Particulars of Asset under Head K Relevant Amount as per charge
Witness sheet (in Rs.)
1 Cash of Rs. 3614970 found at the residence PW99, PW105 3614970.00
of accused A.M. Sharan during search on DW8
27.3.2003
Total 3614970.00
12.16 As per Ex. PW99/A (D-4), total amount of Rs. 36,14,970/- was
recovered from the house search. A sum of Rs. 14,970/- was returned to A-1 under proper receipt. Defence does not dispute recovery of such cash amount but it has come up with two contentions. Firstly, that such recovery was appropriately explained during the investigation stage itself and sum of Rs. 36 lacs was towards sale consideration which A-2 had received from the two different buyers. Secondly, it has been argued that such liability cannot be fastened, even otherwise, in view of prohibition contained u/s 17 of Prevention of Corruption Act. Sh. Manish Vashisht and Sameer Vashisht, being defender of A-2, have taken charge of the arguments on this crucial and all-important aspect of the case.
12.17 I would not eschew any words in declaring that the fate and ultimate outcome of this case is manifestly largely, if not wholly, dependent upon this particular asset i.e. recovery of Rs.3614970/- from the house of A-1.
12.18 There does not seem to be any quarrel that search had been conducted at the official residence of A-1 situated at Bhagwan Das Road. Such search was in connection with said previous case i.e. RC.AC.3/2003 A0002. It took place on 27.03.2003. At that time, A-1 was present in the house along with his wife i.e. DW8 Jyoti Sharan. At the very outset, I would like to comment that there is no dispute about the recovery of aforesaid money during the aforesaid search. It would be crystal clear from the stand taken by accused persons whilst their statement u/s 313 Cr. P.C. were CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 42 of 73 recorded. It would be appropriate to extract the relevant question and corresponding answer.
Q155 Further that during the course of search, cash amounting to Rs. 33 lacs was recovered from the VIP skybag found inside the box of the double-bed in the bedroom of you accused Anand Mohan Sharan. Those notes were contained in about ten wads of notes of rupee 1000 each and 46 wads of rupee five hundred each. Besides the above cash, another amount of about Rs. 3,15,000/- approx was also recovered from different places/almirahs inside the house. Total sum of Rs. 36 lacs was seized and the remaining amount was returned back to you accused Anand Mohan Sharan under acknowledgment. What do you have to say?
Answer (by A-1): It is correct. Money belongs to my father. It was kept in my house for safe keeping as my father used to live alone in Janakpuri, and even that house was in the process of being sold. My father had executed Agreement to Sell of two of the properties including the house in which he was living, therefore, except for amount required in day to day business activity from the office situated in the said house, my father had kept his entire cash with me. Object of keeping cash was to buy a fresh property for my handicapped sister. Further the CBI officials when found the suitcase locked asked me to open it. I told them that it contains my father's money and the code of the number lock of the suitcase would be known to him only. I gave them my father's phone number. They telephoned my father and obtained the number of suitcase from him.
It is a common fact that whenever agreement to sell is executed, the purchaser would get a lower price of purchase, in case, upfront amount is tendered in cash, therefore, ready cash was kept at my house, so that in case my father have to hand over the possession of the Janakpuri House, even at a short notice against the balance consideration amount, the question of transferring the huge cash during the respective short period would not arise.
12.19 Similar question was put to A-2 as well and his answer is as under:-
Answer: This money belong to me as it was part of the earnest money, which I had received on account of agreement to sell of a property at Bahadurgarh, CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 43 of 73 Haryana and Janakpuri, Delhi. Out of the said amount an amount of Rs 14 lacs was received as an earnest money for the sale of Bahadurgarh property from Mr Ajay Gulati and Vijay Gulati and Rs 22 lacs was received as an earnest money for Janak Puri property from Shri Anoop Singh and Harmanjeet Singh.
12.20 During the course of arguments also, defence has not disputed or challenged the recovery of such amount but according to defence, the explanation which had been put forward by the accused during the investigation was discarded for totally inexplicable reasons and such money was assumed as ill gotten money. It has been stressed that such cash money was part of the sale consideration and CBI, unwarrantedly, made the accused face trial.
12.21 Ld. Prosecutor has, on the other hand, contended that the aforesaid money was ill gotten money and not the sale consideration as projected by defence and as allegedly received by A-2 from the concerned buyers. She has argued that all such buyers were examined during investigation and their statements were recorded which categorically indicated that the money recovered during the search was not the same at all.
She has also contended as under:-
(i) As per PW83 Shyam Sunder, Vijay Gulati had, subsequently, had made entries in the cash book of M/s Sunrex Fabrics but there is no corresponding entry in the ledger book of M/s Sunrex Pvt. Ltd. There are entries in the ledger book of Vijay Gulati of M/s Gulati & Company which are written in between the lines and clearly indicate manipulation and addition to cover up the alleged agreement to sell of Bahadurgarh property.
(ii) There are huge transactions in the bank account of M/s Sharan Distributors, M/S ACE Manufacturers and of Mr. K.M. Sharan in the month of March 2003 which falsify defence contention of keeping the cash of Rs. 36 lacs at the house of Mr. A.M. Sharan for the purpose of safety.CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 44 of 73
(iii) There was no urgent need to buy any residential property for Mrs. Sudha Sharma as she was a government servant and was occupying government accommodation even prior to her marriage. Moreover, defence has not pointed out any particular property regarding which they might have kept the sale proceeds at the house of A-1.
(iv) Copy of Will placed on record by the defence is forged one. As per defence, the original Will of Shakuntla Devi was seized by CBI but in such an eventuality, CBI would have certainly provided a photocopy to accused under acknowledgment. Moreover, the copy supplied by the defence in the Court is a scanned copy and not a photocopy and even the thumb impression on such Will is blur. Mrs. Shakuntla Devi was a literate lady and she could have signed the Will and there is no explanation as to why she would put her thumb impression.
(v) Residential house of Mr. K.M. Sharan i.e. C-2/388, Janak Puri, New Delhi was already mortgaged with the Bank and, therefore, no one could have bought such property having a cloud on its title. Moreover, Anoop Singh and Harmanjeet Singh bought the property for Rs. 50 lacs whereas the actual value of the property as valued by the valuer was Rs. 1.30 crores.
12.22 I have read the charge sheet very circumspectly. It reveals that the explanation given by accused regarding recovery of aforesaid sum of Rs. 36 lacs was held as dubious and incorrect on account of there being nine inconsistencies. It would be useful to extract such inconsistencies as found mentioned in Para 19 of charge sheet. These are as under:-
(i) That the search was conducted in RC.AC.3/2003 A0002 at the residence of Shri Anand Mohan Sharan on 27.03.2003. It is pertinent to mention that Shri K.M. Sharan, father of Shri Anand Mohan Sharan, was not present at the house of Shri Anand Mohan Sharan at the time of the search when Rs. 36 lacs were recovered from him. Further, house search at C-2/388, Janakpuri, New Delhi of Shri K.M. Sharan was also conducted on 28.03.2003, i.e. one day after the search at the house of Shri Anand Mohan Sharan. During the search, cash of Rs. 75,000/- was also seized from Shri K.M. Sharan's house. The plea of Shri K.M. Sharan that Rs. 36 lacs was kept by him in his son's house for safe keeping becomes untenable due to CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 45 of 73 recovery of substantial amount of cash from his own house too, subsequently.
(ii) That Shri Krishan Mohan Sharan was required to give his consent for lie detector test in the context of his claim regarding Rs. 36 lakhs seized from the residence of Shri Anand Mohan Sharan. However, Shri Krishan Mohan Sharan expressed his unwillingness in writing citing medical reasons, on the basis of Medical advice of Dr. S.S. Bansal, Director, Metro Heart Institute, Faridabad in whose hospital he was earlier admitted after the arrest of Shri Anand Mohan Sharan in RC AC3/2003 A0002. Incidentally, Shri K.M. Sharan was treated by Dr. S.S. Bansal as a 'complimentary' patient during that time and no payment was charged.
(iii) That the property no. C-388, Janakpuri, New Delhi for the sale of which an amount of Rs. 22 lacs was claimed to have been received, was mortgaged to Bank of Baroda, Navada Branch, New Delhi, in lieu of Bank guarantee for Rs. one crore issued by the Bank of behalf of M/s Sharan Distributors. The said Bank guarantee was issued on 27.08.2002 in lieu of a security deposit of Rs. one crore on behalf of M/s Sharan Distributors against equitable mortgage of property situated at C-2/388, Janakpuri, New Delhi. It is also disclosed that the borrower is normally under obligation not to deal with the property in any manner, whatsoever, without the written consent/approval of the Bank. In view of this, Shri Krishan Mohan Sharan could not have entered into an agreement to sell with Shri Harmanjeet Singh and Shri Anoop Singh, without the consent of the Bank. Investigation has also disclosed that Shri Ved Prakash Aneja, Chartered Engineer, C-2/19, Janakpuri who was deputed by the Bank to conduct Valuation of the said property No. C-2/388, Janakpuri, New Delhi at the time of issuing Bank guarantee, had valued the same at Rs. 1 crore 29 lakhs as per valuation report dated 21.7.2001. It completely defies logic and commonsense that this property valued at Rs. 1 crore 29 lacs was being sold for a total consideration of Rs. 50 lacs to Shri Harmanjeet Singh and Shri Anoop Singh.
(iv) That, Shri Anoop Singh who purportedly financed Rs. 12 lakhs out of Rs. 22 lakhs for purchase of Janakpuri property, while disclosing the source of this amount has claimed that he and his family members received money amounting to Rs.
10,60,000/- in 28 separate installments from August 2002 to March 2003 from his CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 46 of 73 relatives settled in USA through Western Union Money Transfer. It defies commonsense and reasonable prudence that this money never entered banking channels from August 2002 to March 2003 and was kept in the house by Shri Anoop Singh, and was finally allegedly paid in cash to Shri K.M. Sharan.
(v) That, the stamp paper purchased for the purported sale/purchase of House No. C-2/388, Janakpuri, New Delhi is shown to have been purchased on 20.03.2003 in the records of Shri Devender Kumar, Stamp Vendor and entry to this effect has been made in the last line of the page at Sl. No. 94304, which is in handwriting different from the preceding and succeeding entries. Moreover, entry at Sl. Nos. 94084, 94147, 94484, 94595, 94593, 94775, 94812, 94924, 94925, 94999, 95186, 95698, 95881, 97547, 97913, 98095, 98427 & 98503 are deliberately left blank being the last serial No. of the relevant pages. Further, Sl. Nos. 71, 121, 122, 124 to 127, 130, 131, 142, 143, 145 to 147, 153, 154, 162, 163, 174 to 180, 188, 189, 193, 194, 197, 199, 200, 201, 203 to 207, 221, 222, 225 to 229, 233, 239, 245 to 249 have been left blank to facilitate such false entries, as done in the instant case. Moreover, as per practice, Stamp Papers are purchased by the party who is purchasing any property whereas the relevant stamp paper has been shown purchased in the name of Shri K.M. Sharan. Thus the credibility of the agreement to sell is doubtful. During investigation, Shri Davender Kumar, Stamp vendor who sold Stamp Papers for property no. C-2/388, Janakpuri, New Delhi on 20.3.2003, stated that some employee of an advocate had come to him and requested for back dated stamp paper in the name of Shri K.M. Sharan, as the stamp paper purchased earlier was purportedly lost. Accordingly, he saw his register and found that entry at Sl No. 94304 was lying blank. So he made an entry regarding sale of stamp paper to Shri K.M. Sharan in that blank space available in the date 20.3.2003 in his register, whereas it was sold much later.
(vi) That, Shri Krishan Mohan Sharan has taken a plea that amount of Rs. 36 lakhs received by him for sale of two properties could not be deposited in the Bank as he was searching for the property for his daughter and later on he fractured his leg, due to which he could not visit the Bank. But during investigation many Bank accounts of Shri K.M. Sharan and his company were scrutinized, which show that during the relevant period, there were many debit as well as credit entries made in those account CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 47 of 73 and that he had operated his Bank accounts through his employees.
(vii) That, Shri K.M. Sharan claimed that he had kept Rs. 4 lakhs in his house which was received by him on 4.2.2003 towards advance for sale of plot at Bahadurgarh till 8.3.2003 instead of depositing the same at Bank of Baroda located near his house, where he had an Account. He has claimed that this amount was kept at Anand Mohan Sharan's residence on 8.3.2003 i.e. more than one month later. He also claimed that part payment of Rs. 10,00,000/- received on 6.3.2003 in the same deal was also kept by him at Anand Mohan Sharan's residence on 8.3.2003 instead of depositing the same in the aforesaid Bank located near his house. These claims of Shri K.M. Sharan are devoid of any logic, and defy normal human prudence/practice.
(viii) That, during investigation, Shri Vijay Gulati and Shri Ajay Gulati who allegedly purchased the Bahadurgarh plot have stated before independent witnesses, that the currency notes of Rs. 14 lacs paid by them to Shri K.M. Sharan for the deal of Bahadurgarh plot were in the denomination of Rs. 100 and Rs. 50/-. However, in the currency notes of 36 lacs, which was seized from the residence of Shri Anand Mohan Sharan, as aforementioned, the currency notes found in the denomination of Rs. 100/- add up to only Rs. 60,000/-. It is also disclosed that there are no currency notes in the denomination of Rs. 50/-, as rest of the currency notes are in the denomination of Rs. 1000/- and Rs. 500/-.
(ix) That Shri Vijay Gulati of M/s Sunrex Fabrics made false and manipulated entries in the books of accounts of M/s Gulati & Co. and in the Account Books of M/s Sunrex & Co. to show availability of Rs. 14 lakhs in cash purportedly paid to Shri K.M. Sharan. These manipulated entries according to Shri Vijay Gulati were made at the behest of Shri K.M. Sharan after the aforementioned recovery of Rs. 36 lacs, to legitimize existence of Rs. 14 lacs. In order to show receipt/generation of Rs. 14 lakhs in Account Books of M/s Gulati and Co., Shri Vijay Gulati had also prepared false cash memos showing receipt/generation of sales worth Rs. 14 lacs by M/s Gulati & Co. and thereafter, the amount was shown transferred to the account of M/s Sunrex & Co. However, the Ledger Book of M/s Sunrex & Co., which indicates total transaction of the company does not show receipts/generation of sales worth Rs.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 48 of 7314 lacs during the period 18.1.2003 to 3.3.2003. Further whereas the sale proceeds of M/s Gulati & Co. between August, 2000 to January, 2003 (29 months) were worth Rs. 1,52,534/- purported sales shown to have been made between 18th January, 2003 to 3rd March, 2003 (44 days) were for Rs. 13,83,106/-. This clearly indicates an inconsistent pattern of purported business/sales of M/s Gulati & Co. through false cash memos, which were prepared to shown false sales."
12.23 Need not say that investigation is now a thing of past. It is presently to be seen as to how the prosecution has been able to substantiate the charges? The details about the alleged two transactions, which CBI has dubbed as sham, are as under:-
Sl No. Details regarding transactions of two properties in question House No. C2/388, Janakpuri, New Delhi 1 Owned by Mr. K.M. Sharan (A-2) 2 Purported buyers Sh. Anoop Singh and Sh. Harmanjit Singh 3 Date of agreement to sell 20.3.03 (Agreement to sell is part of D-238 but not proved) 4 Sale consideration Rs. 50 lacs 5 Details of stamp paper purchased for Fifty rupees stamp paper sold vide serial said agreement to sell no. 94304 on 20.3.03 to Sh. K.M. Sharan (A-2) by stamp vendor i.e. PW82 Devender Kumar.
6 Sale deed, if any -
7 Mode of payment (date wise) Rs. 22 lacs by cash on 20.3.03 (Receipt is part of D-238 but not proved) Plot No. 908, MIE, Bahadurgarh 1 Owned by M/s ACE Manufacturers (a partnership firm) through partners Sh. K.M. Sharan(A-2) and Sh. Anil Mohan Sharan 2 Purported buyers M/s Sunrex Fabrics Pvt Ltd through its directors Sh. Vijay Gulati and Sh. Ajay Gulati 3 Date of agreement to sell 6.3.03
i) Mark PW103/E (D-237)
ii) Ex. DW2/A (part of D-223) 4 Sale consideration Rs. 24.25 lacs (entire payment made) CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 49 of 73 5 Details of stamp paper purchased for Stamp paper of ten rupees sold by execution of agreement to sell concerned stamp vendor (name not fully legible) vide serial no. 28813 dt. 6.3.03 to M/s ACE Manufacturers 6 Sale deed, if any Ex. DW5/A dt. 23.4.03 (proved by defence) 7 Mode of payment (date wise) i) Rs. 4 lacs (cash) on 4.2.03,
ii) Rs. 10 lacs(cash) on 3.6.03,
iii) Cheque for Rs. 5 lacs dt. 10.4.03
iv) Cheque for Rs. 5.25 lacs dt. 10.4.03 Cheques collectively exhibited as Ex.
DW2/B (part of D-223) 12.24 I must, at the very outset, hasten to comment that I am, if truth be told, at bay to understand as to what precisely is the stand of CBI. Whether CBI wants the court to believe that there was no transaction at all? Or whether CBI though admits the transaction yet wants to profess that the money in question (denomination-wise) was not that which had been actually paid by the buyers? Naturally, if the transaction did not take place at all, the denomination part pales into insignificance. Or else, CBI is labeling the transactions as sham because the denomination was found to be different.
12.25 Let me explore all the options and weigh up and evaluate whether the prosecution has been able to bear out the aforesaid inconsistencies and whether there is enough material on record to hold that such cash amount recovered from the house search was not the one received by A-2 from the alleged buyers.
12.26 Let me first deal with the transaction related to property of Janakpuri.
12.27 As per defence, the sale consideration was fixed as Rs. 50 lacs and A-2 had received a sum of Rs. 22 lacs on 20.03.2003 as part payment/earnest. Agreement to sell and one receipt regarding payment of CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 50 of 73 Rs. 22 lacs are part of record. D-238 contains agreement executed between A-2 on one side and Anoop Singh and Harmanjeet Singh on the other. It is also found to be signed by all three of them including one witness Sh. Surjit Singh Duggal. Receipt (part of D-238) is also found signed by all four of them. Surprisingly, no prosecution witness has bothered to make any reference to these two vital documents.
12.28 Sh. Anoop Singh and Sh. Harmanjeet Singh were the best persons who could have thrown light over the aforesaid transaction. Charge sheet indicates that they both had been called during the investigation and were examined also. It is, however, bewildering as to why these two gentlemen were not cited as witnesses by CBI. Judicial record does not even contain their statements u/s 161 Cr.P.C. In order to find out the factual position, I called for the case diary and to my astonishment, I was able to locate their statements which had been recorded by CBI on 19.07.2004. Fact, however, remains that such statements, which are otherwise not part of the judicial record, do not at all signify that there was no transaction. Thus, even as per them, the transaction did take place. Such statements are merely with respect to the denomination of the sale consideration. They both revealed before the CBI that they had paid a sum of Rs. 22 lacs in the denomination of Rs.100 and Rs.50 and no amount was paid by them in the denomination of Rs.500 or 1000. They also claimed that the entire payment of Rs. 22 lacs was made in loose notes and not in bundles.
12.29 Though these two gentlemen were not cited as prosecution witnesses yet A-2 sought permission to examine them in his defence. A-2, in his list of witnesses, prayed for summoning of Sh. Anoop Singh as well as of Sh. Harmanjeet Singh in order to prove the transaction of Janakpuri property and also to prove the pleadings in connection with Civil Suit pending adjudication before the Hon'ble High Court of Delhi. Summons were issued. However, Sh. Rikky Gupta, ld. counsel for these proposed defence witnesses CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 51 of 73 appeared before the court on 15.04.2014 and moved an application praying that appropriate orders be passed directing discharge of said proposed defence witnesses. Both the witnesses claimed in such application that there was a conflict of interest as Civil Suit bearing No. CS (OS) 704/2005 was already pending in the High Court in which they both were plaintiffs and A-2 K.M. Sharan was defendant and they were apprehensive that whatever evidence was to be eventually recorded in the instant criminal trial might be misused in civil case for defeating their rights. Defence counsel, keeping in mind the hesitation expressed by them, made a statement that he did not wish to examine them. They both were accordingly dropped.
12.30 Certified copies of the pleadings, evidence and the orders, passed from time to time, in said civil suit were placed on record by defence. A bare perusal of the plaint would indicate that Sh. Anoop Singh and Sh. Harmanjeet Singh had entered into an agreement to sell and agreed to buy the aforesaid property of Janakpuri. The deal was through one property dealer M/s New Ruhani Properties Pvt Ltd through its director Sh. Surjit Singh. It is also mentioned in the plaint that the defendant (A-2 herein) had represented them that he was the absolute owner of the Janakpuri property and also did apprise that such property was lying mortgaged with Bank of Baroda, Janakpuri branch against bank guarantee and assured that he would execute sale deed after the redemption of mortgage. Believing such assurance and presentation, plaintiffs i.e. Anoop Singh and Harmanjeet Singh agreed to buy the property for Rs.50 lacs and a sum of Rs. 22 lacs was paid as earnest money/part payment of sale consideration. Suit ostensibly has been filed by them as they later learnt that such property had come under the cloud since it had become the subject matter of inquiry and investigation by CBI. They accordingly prayed for declaration to the effect that such agreement to sell dated 20.03.2003 had become void and unenforceable/frustrated and prayed for recovery of principal amount of Rs.22 lacs with cost and interest. Such suit is being resisted and both sides have CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 52 of 73 already led their respective evidence and case is now ripe for hearing of final arguments.
12.31 I was compelled to make reference to aforesaid pleadings primarily because of the fact that CBI, despite examining said two buyers Anoop Singh and Harmanjeet Singh during investigation, did not even choose to cite them as witnesses. Such action of CBI is nothing but perplexing.
12.32 Ms. Sharma has contended that the suit is collusive in nature and no attention needs to be given to such collusive suit. I, however, cannot assume so robotically. Moreover CBI, on one hand, does not produce them and holds them back and when its adversary chooses to explain the situation, labels that as a bogus story. If prosecution wanted the court to believe that these two buyers had not made any payment of Rs.22 lacs on 20.03.2003 then it should have mustered courage and should have called them as their witnesses. Nothing of that sort was done. Moreover, switching over to the option, if prosecution wants the court to believe that the transaction had though taken place yet the money recovered in the house search is not the same, due to different denomination, then, as plain as nose on the face, such fact could have laid bare by none else than those buyers who had made the payment. They might have said anything before CBI during the investigation but what matters most is their statement made under oath before court of law. Holding back the best evidence would definitely persuade me to draw adverse inference against prosecution. Defence has rather done its bit. It traveled extra yard by requesting the court by calling them as defence witness knowing fully well that they might have even deposed to its detriment. Since those two persons were found reluctant and apprehensive in deposing before the court, the defence itself dropped them.
12.33 Be that as it may, prosecution has not bothered to examine them. Rather prosecution has shown the audacity to not cite them as witness CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 53 of 73 at all more so when even the denomination part was to be proved by them and them alone. Recording their statements u/s 161 Cr.P.C. in the presence of some independent witness and preparing a memorandum is nothing but a waste of time. CBI devised a new philosophy. It examined them in presence of others and in such alleged statements they both told some facts about denomination. Then, best evidence is held back and witnesses in whose presence they allegedly told about the denomination are made witnesses. Deposition of such witnesses is nothing but hearsay. Even a first year law student would say so without any hesitation. It is really intriguing as to how and why CBI devised such bizarre and illogical strategy. The only conclusion which I can infer is that they both i.e. Anoop Singh and Harmanjeet Singh would not have told any such thing about denomination. One Surjit Singh Duggal is also witness to agreement to sell. I feel that he is the same person who acted as property broker for said transaction. Such Mr. Duggal has not been examined either.
12.34 With respect to denomination, I would be quick to append that for the reasons best known to the prosecution, the cash amount, recovered during the search, was never produced before this court. If the prosecution was so heavily relying upon the aspect of difference in denomination then it was its bounden duty to have produced such notes before the court during the trial.
12.35 According to Ms. Sharma, when the recovery had taken place on 27.03.2003, the sum of Rs.3614970 was recovered and more than substantial amount was in the shape of currency notes of Rs. 500 and 1000. She also states that the statements of Anoop Singh and Harmanjeet Singh, made during the investigation, also revealed that the consideration money paid by them was in different denomination i.e. in the denomination of Rs. 100 and Rs. 50.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 54 of 7312.36 It brings me to another very interesting aspect of the case.
12.37 First of all, the prosecution is required to prove as to what was the actual denomination of the notes so recovered. I have seen the observation memo (D-4) which has been proved as Ex. PW99/A. It merely talks about recovery of cash amounting to Rs. 33 lacs from a VIP suitcase/traveling bag lying inside the box of double bed of the bedroom of A-1 besides recovery of cash amount of Rs. 314970 from different steel almirah of said house. While preparing such observation memo, CBI never ventured into mentioning the denomination of such amount. At page 2 of Ex. PW99/A (D-4) at serial no. 4 as well, it is merely mentioned that cash of Rs. 33 lacs was contained in one VIP suitcase. There is no other memorandum drawn then and there showing denomination of such amount. Moreover, it is also not made clear as to from how many almirahs such amount of Rs. 314970 was recovered. This was also crucial as recovery of small amount, lying scattered and eventually recovered from number of almirahs might have caused a serious dent to the defence version. If A-2 had given substantial money to his son for keeping in his house, he would not have kept those in scattered position and would have rather kept the same together. Another glaring omission, yet again. Search proceedings were captured in a video cassette. Such video cassette has also not been brought on record during the trial much less played during the trial. No prosecution witness threw any light as to where such cassette had vanished. Thus neither the observation memo reflects the denomination nor has the video cassette seen the light of the day.
12.38 I now refer to the testimony of PW105 Inspector Alok Kumar and of PW99 Sh. Mohar Singh. Both these are important witnesses as the house search had taken place in their presence. PW105 Inspector Alok Kumar has though deposed that the notes were in the form of about 10 wads of Rs. 1000/- and 46 wads of Rs. 500/- yet I am not able to gather as to from where CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 55 of 73 he has been able to recollect such fact as such denomination aspect was never reduced in writing. No memorandum or inventory had been prepared at the time of seizure either. Testimony of PW99 Mohar Singh is not in complete consonance with the case of prosecution as he has deposed that such amount of Rs. 36 lacs had been recovered from one attache. On this crucial aspect, this witness was not cross examined by the prosecution for the reasons best known to the prosecution. Moreover, he nowhere whispered about the denomination of notes.
12.39 PW105 Inspector Alok Kumar did admit in his examination in chief that a videography of the events during the search-cum-observation was got done with the help of SI Prem Nath but fact remains that such video cassette has been held back by the CBI.
12.40 Interestingly, PW99 Mohar Singh, in his examination in chief itself, claimed that when such sum of Rs. 36 lacs had been recovered, the concerned person had revealed that such amount belonged to his father. Naturally, at that time, A-1 Anand Mohan Sharan was present in his house. Meaning thereby, he immediately revealed that such money belonged to his father. I do not find any improvement made by Mohar Singh on this score as even in observation memo Ex. PW99/A, in the remark column against recovery of cash, it has been specifically mentioned that such cash was stated to be of father of A-1. Therefore, it would be hard to believe that a false story was woven and knitted subsequently. At the earliest available opportunity, accused Anand Mohan Sharan disclosed that such amount belonged to his father. This fact gets further strengthened from the fact that concerned SP i.e. Sh. B.N.P. Azad served a written letter upon A-1 on 27.03.2003 at 5.15 PM asking him to clarify and give all the details regarding the properties sold by his father. Such letter is D-222. Unfortunately, it has not been proved by anyone. Importantly, reply was furnished by A-1 on 28.03.2003. Such reply is D-223 which is accompanied by a confirmation CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 56 of 73 given by his father and copies of the relevant documents and receipts were also annexed with such reply. Unfortunately, even such reply and confirmation letter have not been proved by any prosecution witness. This is despite the fact that accused are facing trial for creating false evidence including such confirmation letter given by A-2. In such reply/confirmation letter, the accused had given complete and vivid description of the transaction and also annexed the copies of the relevant documents including receipts and cheques. Interestingly, attesting witness Mohar Singh has also admitted in cross-examination that such suit case was locked when that was recovered and CBI official had to talk to someone on phone and then could open the same. It is in consonance with the defence version which is to the effect that such suit case belonged to A-2 and CBI had contacted him telephonically to know its number-combination to unlock it.
12.41 Be that as it may, fact unmistakably remains that only the buyers could have explained about the denomination of the sale consideration and such buyers have not been produced by CBI.
12.42 Ms. Sharma has, however, contended that the story of sale- transaction was a fabricated one and to substantiate such false story, judicial stamp paper of Rs. 50 was procured by accused in an apparent illegal manner and was shown purchased ante-dated. Then, agreement to sell was typed on such stamp paper. Again such story does not stand proved.
12.43 Such stamp paper was allegedly sold by Sh. Devender Kumar vide serial no. 94304 dated 20.03.2003. Sh. Devender Kumar has graced the witness box as PW82. When he entered into witness box, the prosecution did not find any necessity of showing him such judicial stamp paper. Moreover, this witness did not support the case of prosecution as his deposition nowhere indicates that the purchase of stamp paper was ante-dated. He deposed that he had sold the stamp paper vide serial No. 94304 to K.M. CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 57 of 73 Sharan on 20.03.2003 itself. He was cross examined by prosecution with the permission of the court but he out-rightly denied that such stamp paper was sold by him on 27.03.2003 or 28.03.2003 when one person who was working as Munshi/Clerk of one Advocate had contacted him. I am still not clear as to who is this mysterious clerk. I had to, therefore, refer to statement of Devender Kumar recorded u/s 161 Cr.P.C. which has been exhibited as Ex. PW82/DA and even in such statement, he did not reveal the name of any such Munshi/clerk of some Advocate.
12.44 Be that as it may, his deposition before the court is totally against the case of prosecution. His deposition does not indicate that he had sold the stamp paper on 27.03.2003 or 28.03.2003. Moreover, it is not explained by CBI as to why, on the basis of his such stand taken during examination u/s 161 Cr.P.C., no request was made to the concerned department for cancellation of his licence. It is now too late because the statement made u/s 161 Cr.P.C. has no longer any credence. He has already entered into witness box and in such deposition he, point- blank, denied selling any stamp paper on 27.03.2003 or 28.03.2003 and creating entry antedated. I have also seen stamp-sale register Ex. PW82/B (D-232). I have seen the relevant entry appearing at serial no. 94304 at internal page No.
119. Such entry is undoubtedly in the last of the first half page of page No. 119 but that would not itself mean that the entry is manipulated or ante-dated. Such entry was marked as Q174 and was sent to GEQD for having scientific opinion about the author thereof. Such report is part of judicial record and has been attached as D-289. Alas! It is also unproved. Moreover, the report of GEQD does not come to the rescue of prosecution as GEQD categorically opined that such writing appearing at Q174 was attributed to the person having specimen handwriting as S83 to S117. S83 to S117 happens to be the specimen handwriting of Devender Kumar. GEQD also opined that Q173 and Q175 (entries appearing in the same register on same page 119 over and below entry no. 94304) were attributed to one Sanjiv Kumar having specimen CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 58 of 73 handwriting S118 to S134. Since I was curious to know as to who was this Sanjiv Kumar son of Madan Lal, again, I had to refer to statements recorded u/s 161 Cr.P.C. and it was noticed that there is one such person at serial no. 100 of list of witnesses. Such Sanjiv Kumar was working with said stamp vendor Devender Kumar and naturally since he was associate of Devender Kumar, some entries were in his hand too. Interestingly, his such statement u/s 161 Cr.P.C. indicates that the stamp paper in question had been purchased by one Moti Lal on behalf of K.M. Sharan and he even claimed that the signatures against the entry had been made by said Moti Lal. Such Sanjiv Kumar was called for deposition and summons were sent to him repeatedly but those did not yield any fruitful result as he was found no longer residing at the given address. Nobody knows about said Moti Lal either. He is neither cited as witness nor produced before the court.
12.45 I need not remind myself that these statements recorded u/s 161 Cr.P.C. are not substantive piece of evidence. I was forced to make reference to these merely in order to understand the stand of prosecution. Needless to mention that court is required to confine itself to the testimony led during the trial. Only those documents can be said to be within the scope of the consideration which had been proved properly and which are legally admissible in evidence.
12.46 In view of my foregoing discussion, I do not find any reason to hold that the stamp paper had been purchased subsequently and that the entry was made ante-dated. PW82 Devender Kumar has not supported the case of prosecution. LW 100 Sanjiv Kumar has not been produced for evidence and nobody knows about said mysterious person known as Moti Lal.
12.47 Position regarding the other property i.e. plot No. 908, MIE, Bahadur Garh, Haryana is no better.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 59 of 7312.48 Though one of the purported co-buyers was cited as prosecution witness but eventually, even he was not examined. Prosecution did secure presence of this witness before the court on 07.08.2013 but he was dropped by the prosecution on the ground that he had been won over by the accused. Sh. Vijay Gulati, one such co-buyer was contacted during the investigation. His statement u/s 161 Cr. PC was also recorded by CBI on 07.10.2004 which is found to be on judicial record. Naturally, such statement is not to be signed by the concerned witness in view of specific prohibition contained in Cr.P.C. but it is not explained as to why even the concerned IO did not sign the same. No CBI official has either made reference to such statement of Vijay Gulati recorded by I.O. Therefore, even otherwise, it might be a futile exercise to refer to such statement.
12.49 Situation is quite comparable with respect to present property as well. CBI does not say that there was no transaction at all. This is borne out from said statement of Vijay Gulati recorded u/s 161 Cr.P.C. He claimed that he had received telephonic call from A-2 on 28.03.2003 whereby A-2 informed him about the raid and also told him that CBI had also been informed that Rs. 14 lacs out of Rs. 36 lacs, recovered during such house search, had been received from them in connection with said sale of Bahadur Garh property. Nothing further was said by A-2 at the time of such telephonic conversation.
12.50 It seems to me that Vijay Gulati got frightened and over-cautious once he learnt that the CBI had entered into the scene. He had made payment of Rs. 14 lacs out of his personal savings which he had been accumulating for the last 15 years but feeling apprehensive, he recorded some entries in his account books in order to show movement of money. CBI also seems to be of the view that such entries were made by him subsequently merely in order to show that the money had gone out from the account and the transaction was all white. CBI never felt that Vijay Gulati had been asked by the accused to manipulate or create false entry. Vijay Gulati CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 60 of 73 was never made accused for creating such false entries.
12.51 Be that as it may, I have extracted the stand taken by Vijay Gulati u/s 161 Cr.P.C. merely to comprehend the case of CBI. At the cost of repetition, I would re-emphasize that such statement has no legal value. Sh. Vijay Gulati has not entered into witness box and only he could have thrown light about the transaction and also about the denomination. Again, with respect to issue related to denomination, prosecution is heavily relying upon statements of two prosecution witnesses i.e. PW86 Mayank Kumar and PW87 Rajiv Kumar.
12.52 Their testimony indicate that on 26.09.2003, they both had gone to CBI office where Gulati brothers were also present and Gulati brothers had told CBI that the money which they had given to Mr. Sharan was in the denomination of Rs. 100 and Rs. 50. During such investigation conducted on 26.09.2003, said sum of Rs. 36 lacs was also produced and Gulati brothers further confirmed, in their presence, that the money shown to them by CBI did not consist of that cash amount which they had given to Mr. Sharan because money shown by CBI consisted of notes in the denomination of Rs. 1000 and Rs. 500 and there were only 5 or 6 bundles of Rs. 100 notes. They both have also proved memorandum Ex. PW86/A and its annexure Ex. PW86/B (both part of D-258). I have seen such memorandum. Again, the manner adopted by prosecution for substantiating such fact regarding difference of denomination is virtually unheard of. The testimony given by these two witnesses i.e. Mayank Kumar and Rajiv Kumar is nothing but hearsay. Sh. Vijay Gulati has been dropped by the prosecution and another co-buyer Sh. Ajay Gulati has not even been cited as witness. I have already observed above that even the video cassette has not been produced before the court. It would be worthwhile to mention that while recording order sheet dated 02.12.2013, this court had expressed its anxiety about the whereabouts of such video cassette. Prosecution was, though, given indulgence to move CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 61 of 73 appropriate application in case it was able to find out any such cassette yet fact remains that such cassette never surfaced.
12.53 Agreement dated 06.03.2003 regarding said transaction has been proved as Mark PW103/E. It is on stamp paper but it seems to me that prosecution has no qualm with respect to purchase of such stamp paper as the concerned stamp vendor was never contacted.
12.54 Such agreement to sell indicates that the cash (part payment of Rs. 10 lacs) was made on 06.03.2003 and before that a sum of Rs. 4 lacs as Bayana had been paid on 04.02.2003. I have seen such agreement with virtually microscopic eyes. The manner in which date of 06.03.2003 has been mentioned may give rise to some suspicion regarding some addition at a later stage due to apparent use of different ink or different pen but in a criminal trial, the guess-work does not work. Such aspect should have got confirmed from forensic laboratory during investigation. Moreover, Gulati brothers have not been examined as witnesses. They are not co-accused either. Concerned stamp vendor has also not been examined and, therefore, it will not be possible for this court to label such 'agreement to sell' as bogus. For want of examination of Mr. Gulati, I am also unable to accede to the denomination theory projected by CBI. I am rather inclined to draw adverse inference for holding back the best evidence.
12.55 Ld. PP has contended that A-2 was having his separate house at Janakpuri where he was living alone and there was no reason for him to have kept such money at the house of his son. It has also been claimed that when the house of A-2 was separately searched, a sum of Rs. 75000/- was recovered and if he could keep Rs. 75000/- in his house, he could have also kept a sum of Rs. 36 lacs with him. Such search had been conducted immediately on the next date i.e. 28.03.2003 and search list has been proved as Ex. PW38/A (D-256). According to defence, A-2 had to go to Jaisalmer on CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 62 of 73 business tour and since he did not want to keep huge cash in his house, such money was kept at house of A-1. It has further been contended that A-2 had suffered a fracture at Jaisalmer and took treatment at Ganga Ram Hospital at Delhi and then at Metro Hospital, Faridabad and CBI cannot smell anything fishy from the fact that the money had been kept at the house of A-1. Undoubtedly, even at that time i.e. in the year 2003, A-2 was around 74 years of age. He was a widower and was residing at Janakpuri house all alone. Facts related to visit to Jaisalmer have been confirmed by DW3 Ms. Sudha Sharma (his daughter) and DW2 Anil Mohan Sharan (his another son) and it seems to me that such fact has not been challenged by CBI as there is no specific cross examination on such score. Keeping in mind the age of A-2, his being a widower and the fact that he had also suffered a fracture and the lackluster evidence led by CBI, this court will not be able to assume any criminality merely on such small fact. Moreover, there is huge difference between a sum of Rs. 75, 000/- and Rs. 36 lacs. It's virtually chalk and cheese. Any person at his age would not leave such huge money unattended. Moreover, the testimony led does not at all project that these transactions had not taken place. If the transactions had taken place, then money should have been recovered from the house search of Janakpuri House. Here, recovery is rather from the house of A-1 which cannot be labelled as highly absurd or impossible. If there is even a bit of possibility of A-2 keeping such money with his son, the benefit should be passed on.
12.56 In Selvi v. State of Karnataka 2010 (7) SCC 263, it has been held that the compulsory administration of techniques including Lie-Detector test violate the right against self- incrimination. It has also been held that even the test results cannot be admitted in evidence if those had been obtained through the use of compulsion as Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 63 of 7312.57 Moreover, in the instant case, accused had, during investigation, reportedly refused to undergo lie-detector test citing his old age and medical reason. If CBI felt that he had come up with a lame excuse, there was no one to prevent CBI from moving application before the court as even otherwise, such consent and aspect related to voluntariness could have been confirmed by the court and not by the investigating agency.
12.58 I have seen the testimony of concerned official of Janakpuri Bank where such property was lying mortgaged. It really does not matter whether such property was under mortgage at the time of agreement to sell. Even the buyer was not kept in dark with respect to such issue. He knew that fact. Valuation might be of more than a crore of rupees but facility was of Rs. 50 lacs only. Merely because valuation was that high would not by itself suggest that property could not have been sold for a price of less than one crore. Moreover, though court should not acknowledge such fact but there are number of instances in Delhi where actual sale consideration is much more than the one reflected in deed. It also really does not matter much as to why A-2 did not deposit such amount in his bank and why put the same in the house of his son. Reason has been given by defence already. A-2 wanted to buy a property for his handicapped daughter. Such daughter has also entered into witness box. Brother and wife of A-1 have also entered into witness box on this score.
12.59 I have also seen the testimony of PW 83 S.S. Sharma. He was only a part time accountant under Vijay Gulati. Moreover, Vijay Gulati himself confessed before CBI that he had made entries in account books subsequently and that he had actually paid the consideration out of his savings. Thus even if account-books are found tempered with, no mileage can be drawn by CBI. Moreover, again, Mr. Gulati has not been produced in witness box and, therefore, also, the testimony of PW83 Mr. Sharma pales into insignificance. Thus, as a necessary corollary though the recovery of Rs.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 64 of 7336 lacs is proved yet such amount also stands duly explained as being of A-2 which he had got as part sale-proceeds.
S. No. Particulars of movable assets under Head L Relevant Amount as per charge
Witness sheet (in Rs.)
1 House hold items as per inventory 218670.00
Total 218670.00
12.60 As per CBI, A-1 was in possession of household articles worth
Rs. 2,18,670/- at the end of check period i.e. on 27.03.2003. I have carefully perused the charge-sheet. Check period starts from 22.08.1991 and naturally A-1 must have been possessing some household articles even at the start of check period. As per CBI, at the start of check period, on 22.08.1991, A-1 did not have any movable asset as no asset was declared by him for the year ending 31.12.1990. According to CBI, he only had asset worth Rs. 80,561/- at the start of check period. Details in this regard are given in Para-10 of charge-sheet which reads as under:
Investigation has further disclosed that at the start of check period i.e. 22.08.1991, the likely savings of Shri Anand Mohan Sharan was Rs. 30,561/- taken as 2/3 of his total salary of Rs. 45,842/- received while undergoing training at National Academy of Direct Taxes, Nagpur. Investigation has further disclosed that at the start of aforementioned check period i.e. as on 22.08.1991 Ms. Jyoti Batra but later on married Shri Anand Mohan Sharan on 27.11.1991 was in possession of movable assets worth Rs. 50,000/- being the amount invested in Bank of India mutual fund. Thus, from the above it is disclosed that at the start of check period i.e. 28.08.1991, the likely savings of Shri Anand Mohan Sharan & Ms. Jyoti were Rs. 80,561/-.
12.61 Here, we are concerned about the household articles. I do not think that at the start of check period, accused would not be possessing any household articles. CBI has not placed on record any material to show that A-1 had not submitted any property returns at the time of his first joining. No official has said so either. I am, therefore, inclined to grant him benefit of at least Rs. 100000/- on this score. Therefore, household articles, at the end of check period, are held as Rs. 2,18,670/-.CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 65 of 73
12.62 Movable assets, at the start of check period, are held as Rs.
1,80,561/-. [Rs. 80,561.00 (as per charge-sheet) + Rs. 1,00,000.00 (benefit given by the Court on tentative basis)].
OTHER DEFENCE CONTENTIONS 13.0 It has been fervently contended that CBI committed a blunder by charge-sheeting accused u/s 193 IPC without complaint of the court. It has been argued that as per sec 195(1)(b)(i) Cr.P.C., cognizance was barred without such complaint. Reliance has been placed on Vinesh Vyas Vs. State Through CBI (2010) 167 DLT 408. In said matter, a case was registered u/s 13(2) r/w 13(1)(e) of Prevention of Corruption Act, 1988 for having movable/immovable assets disproportionate to known sources of income of accused. During investigation it was revealed that such accused through his wife had submitted attested copies of 86 forged and fabricated bills, issued by M/s Shri Ambika Jewelers Indore, reflecting sale of gold jewellery and silver utensils worth over 87 Lacs. During the investigation it was further revealed that the said 86 bills were fraudulently got prepared by the Petitioner Vinesh Vyas through his employee/relative. He was accordingly prosecuted u/s 193/120B IPC for fabricating false evidence. He was charged by the court and when the matter was taken in revision, Hon'ble Delhi High Court held that the alleged offence for which the petitioner had been charged under Section 193/120-B IPC, would be covered by Section 195(1)(b)(i) Cr.P.C. and would require filing of a complaint by the concerned court and resultantly, such accused was discharged.
13.1 Ms. Sharma has on the other hand contended that such contention is completely misplaced and said judgment is not applicable at all. According to her, in order to attract sec 195(1)(b)(i) Cr.P.C., there has to be some proceedings pending before the court. Since at the time of production of CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 66 of 73 false documents, matter was not pending before the court, the bar does not come into play.
13.2 Though such question had earlier been decided by the then learned Presiding Officer of this Court against the defence vide order dated 27.11.2010, suffice it to say that such question has lost its sheen in the present context and has only some academic value. Here, unfortunately, prosecution has not even been able to prove any document as forged or false. Best evidence has not come forward. Concerned stamp vendor has turned hostile and therefore, I have already noted above that prosecution has not been able to impeach the agreements in the desired manner. Moreover, if CBI actually felt that these agreements and receipts were forged, would someone explain as to why the other signatories have been let off. Perhaps, the proper course would have been to make those important persons approver(s). It's now too late to do anything.
13.3 It would be always debatable whether any preliminary inquiry is required to be conducted before the formal registration of FIR. It is normally seen that accused always tries to dig out advantage in either of the eventuality. If any such preliminary inquiry is conducted then it is attacked on the ground that it was against the statutory stipulation as provided under the Code and if no such inquiry is conducted then reference is made to CBI Manual. In the present case, however, CBI could have registered fresh FIR on the basis of recovery effected in the previous case. No source information was, really speaking, required.
13.4 Untimely demise of I.O. Deep Singh on 02.06.2006 has caused a serious damage to the case of prosecution. He died before he could enter into witness box and his non-examination has caused demonstrable prejudice to the defence. Some of the vital questions could have been answered by him alone. Proper handing over of record and taking over of the same in the CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 67 of 73 instant case could have been proved by him. Testimony of I.O. of previous case, in itself, is not of much assistance.
13.5 Effectively, investigation in the present case took off only when FIR had been registered. According to defence, whatever was done before such registration is of no consequence because of want of authorization u/s 17 of Prevention of Corruption Act. This question is also no longer of any real significance in view of foregoing discussion. However, I would certainly supplement here that on the basis of material already collected in connection with previous case, present I.O. was well within his rights to minutely scrutinize all such documents and statements and to form opinion and to reach any conclusion.
13.6 Prosecution is Master of its case. It can always decide as to who should be examined and who shouldn't be. There is nothing bad if any prosecutor takes a bold decision in dropping any witness. Court can always draw adverse inference because of non-examination of any such witness. It will not be proper for anyone to question the wisdom of prosecutor because it may so happen that examination of any witness may do more harm than holding him back. If defence can decide about its own witnesses and can bring them along, applying same analogy, I don't find anything wrong in such decision of prosecutor. Rather they need to be complemented. I would also add here that defence had expressed its reservation about dropping of witness Mr. Gulati but when it's two own witnesses were also unwilling to depose, defence too dropped them. During final arguments, albeit in a very low key tone, Ms. Sharma contended that court could, if so desired, call him as court-witness to obviate any apprehension in the mind of the court. I must make it clear that this court has no such apprehension. Moreover, three other crucial witnesses related to property transactions were not even cited as witnesses by CBI. Therefore, it really does not matter much now. Let the matter be now laid to rest on this score at least.
CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 68 of 73FINAL ANALYSIS 14.0 In view of my foregoing discussion, the final figures would be as under:-
INCOME S No Income Amount as per Amount as Amount proved charge sheet per defence A Carry home salary 1357273.1 1357273.1 1357273.1 of Sh. Anand Mohan Sharan B Car loan 172845 172845 172845 C Interest from 89830.16 89830.16 89830.16 accounts/ investments D House loan 300000 300000 300000 E Interest in PPF 22972.27 22972.27 22972.27 accounts F Rent from 492000 539000 492000 Gurgaon flat G Income of Smt. 263794.78 300036 263794.78 Jyoti Sharan (wife) from salary H Income of Smt. 161410 161410 161410 Jyoti Sharan (wife) from Tuitions I Amounts received 406000 406000 406000 as gifts/loans etc from relatives J Amount received 200000 200000 200000 on maturity of BOI mutual Bonanza K LIC Money back 20000 20000 20000 claim L Proceeds from 5075 10075 10075 enhancement of NSC Additional Income 0 663220 162000 Total 3491200.31 4242661.53 3658200.31 CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 69 of 73 EXPENDITURE S No Expenditure Amount as per Amount as Amount proved charge sheet per defence ( in Rs.) (in Rs.) (in Rs.) A Household/Kitchen 452424.36 0 452424.36 expenditure B Membership of 25050 25050 24950 various Clubs C LIC Premium 137333 103656 103656 payment D Tour and Travels/ 128344 128344 128344 Resorts Membership E Education of 166528 166528 166528 Children F Credit cards/bank 2417.06 0 2417 charges/ locker rent G Repayment of 452420 148500 452420 housing loan H Electricity Charges 72505 50760 0 I Water charges 765 765 0 J Wood work at 45780 0 0 Gurgaon Flat K Income Tax paid 81057 0 40815 by Sh. Anand Mohan Sharan L Income Tax paid 730 730 730 by Smt. Jyoti Sharan M Advance to Sh. 80000 0 0 K.M. Sharan N Mobile telephone 8979 0 8979 bill payment O Telephone bills 17183 0 17183 payment P Purchase of books 6098 0 1863 Q Other expenses 10980 0 7494 Total 1688593.42 624333 1407803.36 CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 70 of 73 MOVEABLE ASSETS S. No. Movable Assets Amount as per Amount as Amount as charge sheet (in per defence proved Rs.) (in Rs.) (in Rs.) A Deposits in various 896108.8 896108.8 896108.8 banks B Deposits in PPF 163472.27 114500 140500 Accounts C National Saving 40000 40000 40000 Certificates D Bonds of ICICI 5750 5750 5750 E Car- Santro make 399821 399821 399821 F Rado watch 61500 0 0 H Cyber Shot 24700 0 24700 Camera I Diamond pendent 10100 0 10100 with gold and pearl string J Samsung Mobile 14800 0 0 K Cash found during 3614970 14970 14970 search at residence L Other household 218670 218670 articles TOTAL 5449892.07 1471149.8 1750620 14.1 Value of Immovable asset remain the same i.e. Rs. 10,038,36/-
and worth of movable assets at the start of check period is held as Rs. 1,80,561/-.
14.2 Thus the final equation, after nearest rounding off, would read as under:-
(A) Assets at the beginning of check period: Rs. 1,80,561 (B) Assets at the end of check period: Rs. 27,54,456 CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 71 of 73 (Including immovable property) (17,50,620 + 10,038,36) (C) Income during check period: Rs. 36,58,200 (D) Expenditure during check period: Rs. 14,07,803 Disproportionate Assets= [(B-A) + D] - C = [(2754456-180561) + 1407803] - 3658200 = [2573895 + 1407803] - 3658200 = 3981698 -3658200 = Rs. 3,23,498 Percentage of Disproportion = Disproportionate Assets X 100 = 323498X100 Income from known sources 3658200 = 8.84% 14.3 Thus, such extent of DA stands reduced to peanuts from a whopping 130% as per charge-sheet.
14.4 In the case of KRISHNANAND AGNIHOTRI V. STATE OF M.P., AIR 1977 5C 796, it has been held that a margin of 10% of the income of the accused should be given for the purpose of determination of disproportionate assets held by him and if I apply said principle, defence has to be given a benefit of Rs. 3,65,820. And if such benefit is passed on to him, naturally, the case does not stand proved as it does not remain a case of Disproportionate Assets any longer.
14.5 Gravamen of charge was that sizeable amount of Rs. 36 lacs. Due to uninspiring investigation and non-citing of material witnesses, there is nothing to hook up A-1 with the same. Explanation offered by defence is, therefore, liable to be accepted. Prosecution has not been able to place sufficient material before the court to nail them down under any penal charge. Any uncultivated and distant likelihood cannot be a substitute of concrete proof which is always required to bring home the guilt in any serious criminal CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 72 of 73 trial like this. Both the accused are, resultantly, given benefit of doubt and are hereby acquitted of all the charges levelled against them. Their respective sureties are discharged.
14.6 Both the accused are, however, directed to submit Bonds u/s 437A Cr.P.C. in a sum of Rs. 25,000/- each with one surety in like amount.
14.7 I must say that digitization of entire record, well in advance, proved to be very handy in accessing the entire file with a click of the mouse. Ahlmad is directed add scanned copy of this judgment in the digitized file.
14.8 File be, thereafter, consigned to Record Room.
Announced in the open Court On this 4th day of June, 2014 (MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 07/2012 CBI Vs. A.M. Sharan & Anr. Page 73 of 73