Delhi District Court
Cbi vs . 1 Kulwaran Singh, on 8 August, 2012
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 02/2012
RC 2(A)/2000/ACU-IX
U/s 109, 120B, 193, 467, 471 of IPC
& Sec. 13 (2) R/w 13 (1) (e) of PC Act.
CBI Vs. 1 Kulwaran Singh,
The then Assistant Commissioner
of Excise & Custom,
Belgaum, Karnataka,
Resident of Door no.5, Type-IV,
Qtrs. Central Excise Officers
Qtrs., No.71, Club Road,
Belgaum, Karnataka.
2 Smt. Kulwant Kaur,
Wife of Kulwaran Singh,
Resident of Door no.5, Type-IV,
Qtrs. Central Excise Officers
Qtrs., No.71, Club Road,
Belgaum, Karnataka.
3 Mool Chand Sharma,
Son of Ratan Lal Sharma,
Resident of A-5/G-10, Cliffton
Apartment Erose Garden,
Faridabad, Haryana.
4 Smt. Santosh Kumari,
Wife of Subhash Chandra,
Resident of Village & P. O.
Lakhanpal, District Jalandhar,
Punjab.
5 Devender Kumar Sharma,
Son of Manohar Lal Sharma,
Resident of Village & P. O.
Nasrala, District Hoshiarpur,
Punjab.
6 Subhash Chand,
Son of late Shankar Das,
CBI Vs Kulwaran Singh 02/2012 1/65
Resident of MIG-160, Housing
Board Colony, Phase-I,
Jalandhar, Punjab.
7 Harish Kumar Arora,
Son of Kewal Krishan Arora,
Resident of WE-77-78, Chhota
Ali Mohalla (Telwali Gali),
Jalandhar.
8 Balwant Rai,
Son of Krishan Lal,
Resident of Village Bhohani,
Post Rampur, Tehsil Phagwara,
District Kapurthala, Punjab.
9 Satish Kumar,
Son of Inder Lal,
Resident of NM-447, Mohalla
Karar Khan, Jalandhar City,
Punjab.
(Proceedings Qua Accused Satish
Kumar abated on 01.08.2012 as
accused died on 12.06.2012)
Date of Institution : 30.04.2002
Date of framing of charge : 13.10.2005
Date on which case was received on
Transfer by this Court : 07.01.2012
Date of conclusion of arguments : 24.07.2012
Date of Judgment : 08.08.2012
Memo of Appearance
Sh. Jagbir Singh, Ld. PP for CBI
Sh. I. D. Vaid, Ld. counsel for Accused Kulwaran Singh & Kulwant Kaur.
Sh. Manish Shukla, Ld. counsel for Accused Mool Chand Sharma, Santosh
Kumari, Devender Kumar Sharma, Subhash Chand, Harish Kumar and Satish
Kumar.
Sh. R. K. Handoo, Ld. counsel for accused Balwant Rai.
CBI Vs Kulwaran Singh 02/2012 2/65
JUDGMENT
CASE OF PROSECUTION 1.0 Smt. Kulwant Kaur (hereinafter referred to as A2) was travelling from New Delhi to Jalandhar on 16.10.98 by Shatabadi Express and when she reached Jalandhar, she was stopped up and searched by Government Railway Police (GRP) officials of Jalandhar, Punjab. She was found carrying Rs.15 lacs in cash and gold ornaments worth Rs.1.34 lacs. She could not give any fitting explanation regarding possession of such cash and jewelery and, therefore, a case u/s 411/414 IPC was registered against her at Jalandhar.
1.1 Kulwant Kaur (A2) happened to be the wife of Sh. Kulwaran Singh (A1), a Public Servant who had joined Customs and Central Excise on 14.7.86 and was promoted as Appraiser and was lastly posted as Assistant Commissioner, Customs, ICD since 1997. A2 took stand that said money was given to her by Mool Chand Sharma (A3), a family friend. According to A3, he wanted to purchase one land situated at Nasrala, Hoshiarpur, Punjab and, therfore, he had urgently sent money for such deal through A2. A3 also claimed so before the magisterial court at Jalandhar. He also relied upon one Ikrarnama (Agreement to Sell) in order to substantiate his such stand. Such agreement was dated 24.08.98 and was on a stamp paper. Sellers, shown in such agreement, were Smt. Santosh Kumari (A4), Devender Kumar Sharma (A5) and Mahesh Kumar (PW40). Buyer was Mool Chand Sharma (A3). Subhash Chand (A6), Harish Kumar Arora (A7) and Satish Kumar (A9) signed as witnesses. Stamp paper was found sold by Balwant Rai (A8), Stamp Vendor. It will also not be out of place to mention here that Income Tax Authorities also initiated proceedings related to imposition of tax on said amount.
1.2 CBI registered FIR on 6.3.2000 on source information to the effect that A1, a public servant while being posted and functioning as Appraiser with CBI Vs Kulwaran Singh 02/2012 3/65 Custom House Mumbai and Assistant Commissioner (Import), ICD, New Delhi, had amassed huge assets disproportionate to his known sources income. A bare glimpse of FIR would reveal that the prime reason behind lodging of FIR was said recovery of Rs.15 lacs in cash and gold ornaments from the possession of his wife.
1.3 As per investigation, such sum of Rs.15 lacs was found to be ill- gotten money of A1 Kulwaran Singh and a criminal conspiracy was hatched by all accused and a fictitious story was formulated in order to deceitfully portray that such money had nothing to do with A1 and A2 and was given by A3 in connection with some land deal. As per CBI, such agreement was fabricated later on and was falsely shown executed ante dated i.e. on 24.08.98.
1.4 When CBI confronted A8 and wanted to see Register in which sale of Non-judicial Stamp Papers would have been found recorded, he claimed that he had lost the same and had already lodged a report with police to such effect. According to CBI, since there was not going to be any entry related to sale of any such stamp paper in that register, A8 came up with a lie and lodged false report with police. Falsehood of such report stood confirmed as that particular register was seized by CBI on 8.3.2000 when house of A8 was searched and, naturally, no entry regarding sale of any such stamp paper on 24.08.98 was found therein. Thus all the accused conspired together so that A1 was protected from the clutches of law. According to CBI, the story canvassed regarding handing over of money by A3 to A2 and execution of agreement to sell was imaginary and invented. Mahesh Kumar (one of the alleged seller of said land) was examined during the investigation and he spilled the beans and denied about any such agreement or his signing any such agreement.
1.5 During investigation, CBI collected the details of income, expenditure and assets of A1 and his family members. Check period was taken as 5.7.97 to 8.3.2000. As per CBI, Kulwaran Singh (A1) and his family members were found in CBI Vs Kulwaran Singh 02/2012 4/65 possession of assets disproportionate to his income as per the following details:-
1 Income Rs.10, 03,535/-
II Expenditure Rs.3, 64,912/-
III Assets (Movable & Immovable) Rs.25, 85,981/-
Disproportionate Assets = (Assets + Expenditure) - Income
= Rs.25, 85,981+3, 64,912-10, 03,535
= Rs.29, 50,893/- -Rs.10, 03,585
= Rs.19, 47,358/-
(Court Observation: In challan, figure of Rs. 10,03,535/- has been later on incorrectly mentioned as Rs. 10,03,585/-. Actual DA thus comes Rs.19, 47,308/-) 1.6 It is in these circumstances that charge sheet was filed against all the accused persons on 30.4.2002.
COGNIZANCE AND CHARGE 2.0 Cognizance was taken by the court on 7.3.2003 and summons were accordingly issued to all the accused persons. Arguments on charge were heard and vide order dated 14.9.2005, it was pronounced that there was prima facie sufficient material to frame charges. Charge was accordingly directed to be framed against A1 u/s 13 (2) R/w 13 (1) (e) PC Act. Accused A2 to A9 were ordered to be charged u/s 109 IPC R/w 13 (1) (e) and 13 (2) PC Act. A3 to A9 were directed to be charged u/s 467 IPC and A3 was also direct to be charged u/s 471 IPC.
2.1 Charges were accordingly framed on 13.10.2005 to which all the accused pleaded not guilty and claimed trial.
WITNESSES FOR PROSECUTION 3.0 Prosecution was directed to adduce evidence and has examined 64 CBI Vs Kulwaran Singh 02/2012 5/65 witnesses. These can be classified as under:-
Bank Officials.
PW1 Sh. S. S. Bhatia, PNB.
PW2 Sh. Thakur Lal, State Bank of Patiala. PW5 Sh. Ashok Ganpati, Bank of India.
PW10 Sh. R. K. Bhatia, Indian Overseas Bank. PW19 Sh. J. P. Parbagga, Oriental Bank of Commerce. PW25 Sh. A. K. Aggarwal, PNB.
PW28 Sh. Gurudev Ram Rai, Oriental Bank of Commerce. PW29 Sh. Amrit Lal Garg, PNB.
Witnesses from the Department of A1.
PW4 Sh. Pradeep Singh.
PW9 Sh. S. R. Sharma.
PW11 Ms. Shakuntala Devi.
PW21 Sh. A. K. Bhutkar.
PW43 Sh. K. B. Bhat.
CBI officials and sanctioning authority. PW49 Dr. S. C. Mittal, GEQD hand writing expert. PW55 Sh. Rajiv Rai, Sanctioning Authority. PW56 Inspector Layak Singh.
PW57 Inspector Mahesh Chand.
PW58 Inspector Sanjay Kumar Singh.
PW62 Inspector D. S. Chauhan.
PW63 Sh. N. R. Thakur.
PW64 Inspector Ram Nath Azad.
Officials from GRP Jallandhar.
PW14 Sh. Darshan Singh.
PW15 Sh. Manjeet Singh.
PW50 Sh. Ajit Singh.
Officials from PUDA.
PW12 Sh. Jagdish Kumar.
PW48 Sh. Sanjeev Rabra.
Search witnesses PW13 Sh. Subash Chand.
PW26 Sh. D. D. Sharma.
PW37 Sh. Tulsi Das Pal.
PW39 Sh. Vijay Kumar.
PW44 Sh. Shiv Kumar Khanna.CBI Vs Kulwaran Singh 02/2012 6/65
PW47 Sh. Shyam Sunder Chopra.
PW51 Sh. Chetanya Goswami.
PW61 Sh. Subhash Surve.
Witnesses to prove educational expenses. PW17 Sh. Sabestian Dias.
PW35 Dr. Ajeet Singh.
PW59 Sh. Melvin Disuza.
PW60 Sister Nora Barretto.
Witnesses related to Jalandhar PW30 Smt. Amarjeet Kaur, D.C. Office, Jalandhar. PW31 Sh. Ajay Kumar, witness related to Ikrarnama. PW32 ASI Sukhjeet Singh, witness related to loss of stamp register PW34 Sh. Swatantra Bharat, witness related to Ikrarnama(Deed Writer) PW36 Sh. Rajesh Seth, Valuer.
PW40 Sh. Mahesh Kumar, witness related to Ikrarnama whose signatures were forged PW45 ASI Subhash Chander, PS Adampur District Jalandhar PW54 Ms. Sushma Rani, official from District Court, Jalandhar.
Witness to specimen hand writing.
PW22 Sh. Raj Kumar.
PW23 Sh. Inder Singh.
PW24 Sh. O. P. Singh.
PW27 Sh. Ashwini Kumar.
PW42 Sh. Kishan Lal.
PW46 Sh. Surjeet Singh Gulati.
Witnesses related to Income Tax Proceedings PW38 Sh. Mohinder Singh, official from income tax. PW41 Sh. G. S. P. Kishore, official from income tax PW53 Sh. K. L. Sharma, official from income tax. Others.
PW3 Sh. S. P. Mahane, official from LIC.
PW6 Ms. Jasbir Kaur, mother of landlord Amandeep Singh. PW7 Sh. D. R. Wadhwa, official from Outlook Magazine. PW8 Sh. Bhagat Singh Ranga, official from telephone exchange. PW16 Sh. Lakha Singh, witness to observation memo. PW18 Sh. Jagat Singh Tolia, official from LIC. PW20 Sh. N. N. Hawaldar, BEST Mumbai.
PW33 Sh. Roshan Lal Arora, Train Superintendent.CBI Vs Kulwaran Singh 02/2012 7/65
PW52 Sh. K. S. Murthy, MTNL Mumbai.
STATEMENTS OF ACCUSED AND DEFENCE EVIDENCE 4.0 All the accused in respective statements u/s 313 Cr. PC pleaded innocence.
4.1 As per A1, CBI has arbitrarily chosen a check period of 2 years 8 months and 3 days which was completely unjustified. He also disowned amount of Rs. 15 lacs seized from his wife which stood proved to be that of Sh. Mool Chand Sharma and even held so by Commissioner Income Tax (Appeals) Belgaum, Income Tax Tribunal Goa and Hon'ble High Court of Karnataka. He also claimed that his entire income had not been considered and not-incurred expenditure had been taken in reckoning and that there was no case of disproportionate assets at all. He also said that the payments made by his father to PUDA directly, his own share in agriculture income of his father and his share in sale proceeds of the one plot sold by his parents at Phagwara, Punjab had not been considered. 4.2 A2 Kulwant Kaur admitted that she had travelled in Shatabadi Express on 16.10.98 from New Delhi to Jalandhar. According to her, said amount of Rs. 15 lacs belonged to Mool Chand Sharma (A3) who had given her a packet at New Delhi Railway Station and she revealed so immediately to GRP officials. She claimed that she did not know about the contents of packet at all.
4.3 A3, in his statement u/s 313 Cr. PC, also admitted that A2 along with her daughter were to travel in said Shatabadi Express and packet containing said amount of Rs.15 lacs was handed over by him to A2 at New Delhi Railway Station and such money was meant for Harish Kumar (A7) of Jalandhar. According to him, agreement to sell was genuine document.CBI Vs Kulwaran Singh 02/2012 8/65
4.4 As per A8 Balwant Rai (stamp vendor), such agreement was executed on non judicial stamp paper and the entry regarding sale of such stamp paper could not have been there in the register recovered from his house as the register recovered from his house was meant for entries for sale of special adhesive stamps only.
4.5 All the other accused persons also pleaded innocence though claimed that such agreement to sell was genuine document and was signed by them.
4.6 Crux of the statements of accused persons recorded u/s 313 Cr. PC is to the effect that the recovery of Rs.15 lacs from the possession of A2 is not denied. However, it has been claimed that such amount did not belong to A2 or for that matter to A1 Kulwaran Singh. Rather the same had been given by A3 Mool Chand Sharma to A2 Kulwant Kaur as A3 had agreed to purchase property situated at village Nasrala, Hoshiarpur, Punjab for Rs.23 lacs and agreement in that regard had already been executed way back on 24.8.98.
4.7 Accused desired to lead evidence. A1 got himself examined as DW1 by moving an application u/s 315 Cr.P.C. A7 also examined DW2 Harish Sood, the eventual buyer of property of Nasrala. No other witness was examined by defence.
CONTENTIONS OF CBI 5.0 I have already noticed above that prosecution has come up with a case of disproportionate assets and according to prosecution, such amount of disproportionate assets was of Rs.19,47,358/-. It also includes said amount of Rs. 15 lacs which A2 was allegedly carrying on 16.10.1998.
CBI Vs Kulwaran Singh 02/2012 9/655.1 I would be, first, dealing with the aforesaid amount of Rs.15 lacs which is undoubtedly the prime constituent and gravamen of charge.
5.2 Ld. PP has contended that the amount of Rs.15 lacs which A2 Kulwant Kaur was admittedly carrying belonged to none other than A1 i. e. Kulwaran Singh. According to him, A3 Mool Chand Sharma was a petty person and was not having any resource to own or possess such a big amount of Rs.15 lacs and, therefore, there was no question of his handing over such amount to A2. He was neither a close friend nor a family friend of A1 and A2. Moreover, no person would dare to hand over a sum of Rs.15 lacs to wife of his close friend without the knowledge and express consent of his such friend. He has contended that, in no time, a bogus story regarding land deal was woven when A2 was caught with money. In order to buttress his argument, he has also claimed that had it been really so, someone would have immediately come at railway station for collecting Rs.15 lacs but no one turned up. A concocted story was prepared in order to save and screen A1 Kulwaran Singh from criminal liability and a futile attempt was made in order to show that such amount was given to A2 by an outsider i. e. A3 Mool Chand Sharma. Since lies have no end, one more story regarding agreement, purported to have been executed on 24.8.98, was also knit. According to him, there was never any such agreement dated 24.8.98 which fact becomes clear from the testimony of one of the alleged sellers i.e. PW40 Sh. Mahesh Kumar. All the accused entered into a criminal conspiracy with one another and it was attempted to show that A3 had sent money through A2 which was part of the sale consideration of land deal. An ante-dated agreement was prepared on stamp paper which was made available by A8 Balwant Rai, a stamp vendor duly appointed by Revenue Authority, Jalandhar Punjab. Since, there could not have been any entry regarding sale of any such stamp paper on 24.08.98 and since, A8 did not want anyone to see such register, he hid the same in his house and lodged a false report on 25.11.98 with Police Station No. 4, Jalandhar City that his such Stamp Papers Sale Register had been lost on 20.11.98. However, when his house was raided, such register was CBI Vs Kulwaran Singh 02/2012 10/65 recovered in which there was no corresponding entry which clearly unearth the conspiracy. Ld. PP has also claimed that adjudication proceedings by IT Authorities have no bearing over criminal case at all.
DEFENCE CONTENTIONS 6.0 All such contentions have been refuted by defence. It is not in dispute that A2 was carrying said amount of Rs.15 lacs that day. It is also not in dispute that she was apprehended by Government Railway Police (GRP) when she alighted at Railway Station, Jalandhar. According to defence, though A2 was carrying such amount of Rs.15 lacs but it neither belonged to her nor to her husband and such amount was given to her by A3 in a packet and by no stretch of imagination it can be construed as ill-gotten money of A1.
6.1 According to defence counsel, there are several versions of CBI and prosecution seems confused as to who is the possessor of Rs. 15 lacs. It has been contended that since A2 was immediately apprehended at Jalandhar Railway Station and a case was registered u/s 411/414 IPC, as per said criminal case, such money was exclusively foisted upon A2. However, as per CBI, such money belonged to A1 as it has been alleged to be his ill-gotten money. According to defence, A2 was a mere housewife and had no source of income and prosecution has chosen to indict A1 solely due to the fact that A1 happened to be the husband of A2 and if A2 is found carrying such money then it has to be robotically inferred that such money belonged to her husband and her husband alone. In this regard, defence has placed reliance upon one answer given by I.O. PW64 IO Sh. Ram Nath Azad in his testimony. Question and corresponding answer is as under:-
Q. Accepting the seizure of Rs.15 lacs from A2, did you find any connection between that amount and A1?
Ans. A2 was wife of A1 and that was the only connection and material.CBI Vs Kulwaran Singh 02/2012 11/65
6.2 It has also been argued that decision given by Hon'ble Karnataka High court, while culminating the tax proceedings, squarely clinches the issue in favour of defence and since categoric questions of law and fact have been answered in favour of A2 and also attained finality, CBI cannot be permitted to harp the same tune all over again. Reliance has been placed on several authorities which I would advert to at appropriate place.
EVALUATION OF EVIDENCE 7.0 Let me straightway deal with three crucial and key issues i. e. whether the agreement was, in fact, executed on 24.08.98 or is a forged and document, whether the stamp paper for said agreement was sold by A8 on 24.08.98 and lastly the impact of adjudication proceedings of income tax authorities over the present case, if any.
WHETHER AGREEMENT IS FORGED AND FABRICATED ?
7.1 A2 was found in possession of Rs.15 lacs on 16.10.1998 and according to prosecution, in order to run away from the clutches of law, an ante- dated agreement was prepared and shown executed on 24.8.98. According to prosecution, such agreement is fake and fabricated and in this regard, prosecution is heavily relying upon statement of PW40 Mahesh Kumar. He is one of the sellers and as per CBI, he never was aware about any such agreement and did not sign any such agreement either. During investigation Sh. Mahesh Kumar revealed before CBI that he was having two kanals of land in Nasrala, District Hoshiarpur and his land was situated adjacent to the land of Bhagwan Sai Baba Board Mill owned by A5 Devender Kumar Sharma. Smt. Santosh Kumari (A4) had also purchased one adjacent land and thus the lands of Mahesh Kumar, A5 Devender Kumar and A4 CBI Vs Kulwaran Singh 02/2012 12/65 Santosh Kumari were connected with one another and the value of such entire land would have appreciated if sold together. During the investigation, he was shown agreement dated 24.8.98 which was in Punjabi and he denied that there was any sort of agreement, written or verbal, regarding sale of his portion of land with any Mool Chand Sharma. He also denied having received any amount as earnest or token money in lieu of such agreement. He also denied his signatures on such document. He revealed that he came to know about such agreement only when he had received a notice from GRP Jalandhar and when he contacted A5 Devender Kumar to inquire as to how such deal had been struck without his knowledge or consent, A5 told him that since he was under heavy debt, he agreed to sell the land jointly with his land as he had come across a very lucrative offer given by A3 Mool Chand Sharma.
7.2 Let me now see as to what PW40 Mahesh Kumar has to offer in witness box.
7.3 He does not dispute that he was having two kanals of land in village Nasrala which was adjoining the land of said Mill owned by A5. He also does not dispute that he knew A4 Santosh Kumari who was sister of A5 and that she also owned a land facing main road and he also admitted that if they all three had sold the land together then it would have fetched a very good price. He was shown agreement to sell Ex.PW31/A and he deposed that it was not bearing his signatures. He further deposed that he had received telephonic call from A5 who informed him that a party had come. Since, he (Mahesh Kumar) was out, he told A5 to do whatever he wanted. He further deposed that he became aware about agreement to sell same day through telephonic call from A5. He is found to be very categoric in this regard and in his examination in chief he reiterated that agreement to sell was executed in the month of August and that A5 had informed him same evening regarding agreement to sell and also that the amount was to be received after one or one and half month. He failed to recognize his signatures at point Q11 on such CBI Vs Kulwaran Singh 02/2012 13/65 agreement to sell and thereby disowned the same. In his cross examination, he admitted that there was a talk in August, 1998 when Devender Kumar Sharma informed him that agreement to sell had been prepared and Rs.10,000/- had also been received as an advance. He claimed that in the morning Devender Kumar told him that party from Delhi was intending to purchase land and there was good money and then Devender Kumar Sharma again telephoned him and informed that agreement to sell had been entered into and Rs.10,000/- has been received as advance.
7.4 I have purposely extracted the version of Mahesh Kumar which he gave before CBI during investigation. Reason is obvious. Since this witness was not found fully supporting the case of prosecution, he was required to be cross examined by the prosecution but for the reasons, best known to the prosecuting agency, no necessity was felt in this regard. Despite his claiming categorically that agreement to sell had been executed in the month of August and that he had authorized Devender Kumar Sharma to do whatever he wanted in this regard and that he knew about agreement as well as about the advance amount, prosecution did not choose to confront him.. So much so, no permission was sought even to re-examine the witness. This, to me, is a serious lapse on the part of prosecution as his stand before court is incongruous and somewhat damaging.
7.5 His deposition before the court is in contrast with his statement which he had given before the investigating agency. Before the investigating agency, he had completely denied about the agreement being executed in August, 1998. He had also denied having any knowledge about the advance payment and rather he told CBI that Mool Chand had told that for income tax purposes date of agreement would be shown as around a month back. However, in witness box, he states that he came to know about the agreement same day. He says that agreement was executed during the month of August. He says that he had permitted Devender Kumar Sharma to do whatever he wanted for the purposes of CBI Vs Kulwaran Singh 02/2012 14/65 sale of such land.
7.6 I have seen Ikrarnama/agreement to sell (Ex.PW31/A). It purported to show A4 Smt. Santosh Kumari, A5 Devender Kumar Sharma and PW40 Mahesh Kumar as sellers and A3 Mool Chand Sharma as sole buyer. Such agreement to sell was witnessed by A6 Subhash Chand, A7 Harish Arora and A9 Satish Kumar. As I have already discussed above, Mahesh Kumar has failed to recognize his signatures at point Q11. It was expected that other signatories to the document would reveal as to who had signed at Q11, if not Mahesh Kumar. They have not been able to give any answer in this regard. They also failed to give any clarification in this regard when they were examined u/s 313 Cr. PC. When a document of such a nature is executed, it is expected that other signatories would certainly be in a position to explain about signatures of others who must have also signed before their eyes. They have maintained complete silence on this score.
7.7 According to CBI, such signatures were forged by A5 Devender Kumar and in order to substantiate such fact, prosecution is heavily banking upon testimony of PW49 Dr. S. C. Mittal, Handwriting Expert. In his deposition, he claimed that he had received questioned, specimen and admitted documents from CBI vide letter dated 29.3.2001 and he carefully and thoroughly examined all the documents with various scientific instruments and gave report Ex.PW49/B and with respect to signatures at Mark Q11, he concluded that the authorship of same could not be connected with the specimen signatures mark S32 to S37 attributed to Mahesh Kumar.
7.8 He also deposed that some more documents were also received in CFSL vide letters dated 4.7.2001, 14.8.2001 and 24.9.2001 and such documents were also examined by him and he then submitted his further report Ex.PW49/D. In such report, there is reference regarding the specimen hand writing of accused Devender Kumar Sharma. PW49 Dr. S. C. Mittal opined that the hand writing CBI Vs Kulwaran Singh 02/2012 15/65 evidence pointed that the writer of specimen signatures S-50 to S-61 and A16 to A29 was the person responsible for writing questioned signatures Mark Q11 and Q29. Specimen signatures of accused Devender Kumar Sharma are from S-52 to S-61 (Ex.PW23/B2 to B10) and his admitted signatures A16 to A29 have been proved as Ex.PW41/B2. Dr. Mittal in his report Ex.PW49/D came to such conclusion holding that comparison of the questioned and specimen signatures revealed consistency in the basic writing characteristics and also revealed that they were written with fluent line quality, natural variations and speed and the quality of imitation was not found and these connected with each other in the manner of execution lines, their combination and other details within the range and extent of natural variations. Thus scientific report pinned and nailed down Devender Kumar Sharma as the person who had signed as Mahesh Kumar on said agreement to sell.
7.9 I am mindful of the fact that PW40 Mahesh Kumar has deposed that he had authorized Devender Kumar to do whatever he wanted for effecting sale. However, it does not mean that he had even permitted Devender Kumar Sharma to sign as Mahesh Kumar. Such authorization is neither permissible nor legal.
7.10 Unquestionably, prosecution was heavily relying upon the testimony of Mahesh Kumar who spoiled the case of prosecution, to some extent, by claiming that he knew about the agreement and the payment as well same day i. e. 24.8.98 whereas according to the case of CBI, such agreement was executed somewhere in October, 1998 after a criminal conspiracy was hatched and was shown ante- dated. Similarly, PW 34 Swantatra Bharat has also caused dent to prosecution case by claiming that such agreement was written by him same day i.e. on 24.08.1998. However, still as per deposition of Mahesh, one thing emerges out very distinctly. He categorically disowned his signatures and thus supported the version of CBI. It also stands proved that his signatures were made by accused Devender Kumar Sharma which also reflects criminality. There is no rule of law, nor any rule of prudence CBI Vs Kulwaran Singh 02/2012 16/65 which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. Other accused are completely unaware as to who had signed as Mahesh. They were having special knowledge about such fact and onus was on them to have come up with truth. They have chosen to plead ignorance which fact itself suggests their involvement. Be that as it may, fact remains that document becomes forged one since Mahesh, one of the sellers, has disowned his signatures. Defence is not justified in placing reliance upon VIMLA VS. DELHI ADMINISTRATION AIR 63 SC1372 as in that case, situation was entirely different and it was held therein that by signing as someone else, the accused in that case had not caused loss or injury or deceit to Insurance company. Here whereas, by forging signatures, a document has been created in order to dishonestly show that there existed an agreement and thereby an attempt has been made to validate the transportation and possession of money.
SALE OF STAMP PAPER 7.11 Let me now come to the stamp paper. According to CBI, A8 Balwant Rai had sold the stamp paper in question subsequently and it was attempted to show that such sale had taken place on 24.8.98. In order to hide such register from the authorities, he lodged a false report that such register had been lost. However, such register was recovered from his house and, naturally, it did not contain any entry showing sale of stamp paper in question on 24.8.98.
CBI Vs Kulwaran Singh 02/2012 17/657.12 Testimony of PW30 Amarjeet Kaur is of vital importance for deciding such issue. She admits that A8 Balwant Rai was having licence no.69/97. Register D82 was shown to her. She admitted that such Register had been issued by their office and it was bearing her initials as well on first and last page which have been proved as Ex PW 30/ A1 and A2 respectively. This register was recovered from the house search of accused Balwant Rai on 8.3.2000 and according to CBI, this was the only register which accused was supposed to maintain and there was no entry showing sale of any stamp on 24.8.98. Entries for dated 24.8.98 are at serial no. 795 to 813 and Ikrarnama D80 is found to be on Non Judicial Stamp Paper of Rs. 5/- and its serial no. is found mentioned as 2066 dated 24.8.98. Admittedly, such entry is not there in the register but defence has come up with an explanation in this regard which seems very much acceptable and convincing.
7.13 It has been argued that during those days, any stamp vendor was required to maintain two types of registers. One register was meant for sale related to Non Judicial Stamp Papers and the second register was meant for recording entries with respect to sale of Special Adhesive Stamps. According to defence, accused Balwant Rai was also maintaining both such registers and the entry regarding sale of Non Judicial Stamp Paper on 24.8.98 could have been in the register meant for recording sale of Non Judicial Stamp Paper. However, such register was lost and A8 Balwant Rai accordingly reported the matter to the police. CBI failed to appreciate the distinction between the two registers and when the house of accused Balwant Rai was raided, it came across one register and straightway jumped to the conclusion that such register was the register meant for Non Judicial Stamp Paper. It has been argued by defence that such register is meant for recording of entries related to sale of Special Adhesive Stamps only. I have seen the register very carefully and undoubtedly in such register, there are entries related to sale of stamp of the denomination from Rs.5/- to Rs.20/- only. When this register D82 was shown to PW30 Amarjeet Kaur, she also admitted that CBI Vs Kulwaran Singh 02/2012 18/65 such register was meant for recording sale of Special Adhesive Stamp and any entry related to sale of Non Judicial Stamp Paper could not have been recorded by stamp vendor in Register D82. It would be also pertinent to mention that she had also brought one register which was retained by the court and she deposed that such other register was meant for sale of Non Judicial Stamp Paper. Such register was exhibited as Ex.PW30/D2. I have seen the entries maintained in such other register also and there are found to be entries showing sale of stamps of various denominations including stamp papers of Rs.50/-. This material witness PW30 Amarjeet Kaur was also confronted with Notification issued by Punjab Government and she admitted that as per notification Mark DX dated 2.7.97, since Non Judicial Stamp Paper of smaller value were in short-supply, Special Adhesive Stamp ranging from Rs.1/- to Rs.25/- could be sold and stamp vendors were also required to maintain record regarding sale of such adhesive stamp in the same manner as prescribed for sale of Non Judicial Stamp Paper. Such notification is dated 2.4.97 and PW30 Amarjeet Kaur also admitted that such practice continued till 01.04.2002 as in view of subsequent circular Ex.PW30/D1, w.e.f. 01.04.2002, it was ordered that instead of two registers for Non Judicial Stamp Paper and Special Adhesive Stamp, stamp vendors would maintain only one register.
7.14 Thus, from the testimony of PW30 Amarjeet Kaur, the notification and circular as aforesaid and also from a careful scrutiny of the register produced before the court, it becomes manifest that CBI got confused when they came across register D82 and rushed to the conclusion that there was supposed to be an entry regarding sale of Non Judicial Stamp Paper on 24.8.98 in such register whereas such entry could not have been there because such register D82 was meant for sale of Special Adhesive Stamp only. However, is it a mere coincide that A8 lost that very register? I would put a big question mark here because the entire background is found shrouded with mystery.
EFFECT OF ADJUDICATION PROCEEDINGS CBI Vs Kulwaran Singh 02/2012 19/65 8.0 Defence has sought to place passionate reliance upon the adjudication proceedings related to income tax assessment and it has been argued that it has already attained finality that such amount, though carried by A-2 Kulwant Kaur, was, in fact, of A-3 Mool Chand Sharma and since such findings had been given on the basis of same set of evidence, the Criminal Court has no option but to concur with such findings and cannot return any different or contrary finding.
8.1 Let me see these proceedings.
8.2 When A-2 arrived at Jalandhar Railway Station and her luggage was inspected by Railway Authorities, she was found possessing cash amount of Rs. 15 lacs besides some jewellery articles. Thereafter, DIT (Investigation) Ludhiana issued warrants of authorization u/s 132A of Income Tax Act and asked police to hand over such cash amount to IT Authorities. Assessing Officer also initiated Block Assessment Proceedings to ascertain the source of acquisition of such cash of Rs. 15 lacs and issued notice u/s 158 BC of Income Tax Act, 1961 and in response to such notice, A-2 Kulwant Kaur filed Return of income declaring her undisclosed income as Rs. Nil. She submitted explanation before the Assessing Officer that such amount of Rs. 15 lacs was given to her by Mool Chand Sharma and belonged to Mool Chand Sharma and prayed that such sum of Rs. 15 lacs be not added as her income. Assessing Officer, however, rejected such contention and held that lady assessee i.e. A-2 Kulwant Kaur could not explain the source of possessing cash of Rs. 15 lacs and, therefore, regarded the same as assessee's undisclosed income under section 69A of the Income Tax Act. Such order was received by CBI vide letter Ex PW64/I and order is admitted by defence as Ex P1 (D-14).
8.3 Feeling aggrieved by such order of Deputy Commissioner Income Tax (Investigation), Circle-II, Belgaum, an appeal was preferred before the Commissioner Income Tax (Appeals). Vide order dated 19.11.2004 (Ex.
CBI Vs Kulwaran Singh 02/2012 20/65PW64/DE1), such appeal was allowed and it was held that Assessing Officer was not justified in adding Rs. 15 lacs as undisclosed income of A-2.
8.4 Now, it was the turn of IT Department to feel upset. It preferred appeal before Income Tax Appellate Tribunal, Panaji and vide order dated 12.01.2007, Tribunal dismissed the appeal of the department. Such order is Ex. PW64/DE2. However, matter did not rest there. Department of Income Tax filed further appeal before the Hon'ble High Court of Karnataka, Circuit Bench at Dharwad and even such appeal was dismissed by Hon'ble High Court of Karnataka vide order dated 19.11.2010 (Ex. PW64/DE3).
8.5 It has been argued that such order has attained finality and even Hon'ble High Court of Karnataka has concluded that ownership of seized cash amount of Rs. 15 lacs vested with Sh. Mool Chand Sharma and not with assessee A-2 Kulwant Kaur and question of law was answered against the Department and in favour of Kulwant Kaur and appeal was dismissed. Strong reliance has been placed upon Radhey Shyam Kejariwal Vs. State of West Bengal & Ors. (2011) 3 SCC 581 whereby Apex Court held (per majority) that in case of exoneration on merits in adjudication proceedings where the allegations are found to be not sustainable at all and person concerned is found innocent, criminal prosecution on the same set of facts and circumstances cannot be permitted to continue. In that case, premises of appellant had been searched by the officers of Enforcement Directorate and on the basis of material collected during search and further investigation, act of the appellant was found contrary to the provisions contained u/s 8 (2) & 9 (1) (f) (i) of Foreign Exchange Regulation Act thereby rendering himself liable to imposition of penalty u/s 50 of FERA. Show Cause Notice was accordingly issued and adjudication proceedings u/s 51 of FERA were instituted. Adjudication proceedings, however, exonerated the accused and such order also attained finality. Simultaneously, Enforcement Directorate, on the same allegations, filed a criminal complaint against appellant for prosecution u/s 56 of FERA before Magistrate.
CBI Vs Kulwaran Singh 02/2012 21/65Appellant prayed for dropping of proceedings in view of his exoneration in adjudication proceedings. His such prayer was rejected by the Magisterial Court and also did not find favour with Hon'ble High Court of Kolkata. Appellant accordingly moved Supreme Court and Hon'ble Supreme Court (per majority) allowed the appeal. It would be useful to extract principles culled out in said judgment which read as under:-
(i) Adjudication proceeding and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceeding is not necessary before initiating criminal prosecution;
(iii) Adjudication proceeding and criminal proceeding are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceeding by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20 (2) of the Constitution or Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceeding in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances can not be allowed to continue underlying principle being the higher standard of proof in criminal cases.
8.6 It was thus observed that the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of CBI Vs Kulwaran Singh 02/2012 22/65 the person concerned shall be an abuse of the process of the court.
8.7 It has been argued by the defence that since even in the present case, adjudication proceedings and criminal proceedings are based on identical violation and on the same facts and circumstances and since the lady assessee has already been exonerated in adjudication proceedings and it has already been held in such proceedings that she was not the owner of such sum of Rs. 15 lacs, present prosecution cannot continue.
8.8 Undoubtedly, adjudication proceedings are decided on the basis of preponderance of evidence whereas in a criminal case, state is required to discharge onus beyond all reasonable doubts and standard of proof in a criminal case is much higher than that of adjudication proceedings.
8.9 In the present case, it is required to be seen whether both the proceedings involve identical allegations and whether such allegations can be proved on the basis of same set of evidence and not beyond. There cannot be any question of debate with respect to the principles culled out in the case of Radhey Shyam Kejriwal (Supra) but such judgment cannot be blindly applied to every type of adjudication proceeding. Adjudication proceedings under Income Tax Act are on a different footing altogether. I cannot be oblivious of the fact that in the case of Kejriwal (supra), adjudication proceedings and criminal prosecution both were under FERA. No other penal statute was involved. Here, adjudication proceedings were under IT Act and criminal prosecution is under Prevention of Corruption Act and IPC and not under IT Act.
8.10 In the adjudication proceedings related to the present case, Assessing Officer wanted to examine source of acquisition of cash of Rs. 15 lacs in order to ascertain whether such sum of Rs. 15 lacs belonged to lady assessee CBI Vs Kulwaran Singh 02/2012 23/65 Kulwant Kaur and whether it can be considered as her undisclosed income and could be taxed accordingly or not. The purpose was to find out as to who was to be taxed for such undisclosed income. IT department was predominantly bothered about imposition of tax. It really didn't mean anything to them any further. Procedure of enquiry before IT authority is comparatively less stringent. A-2 merely claimed before the Assessing Officer that such money had been handed over to her by Mool Chand Sharma. According to her, a packet was given to her and she did not even know that such packet contained any cash. She also claimed that such Mool Chand Sharma immediately filed an affidavit before the Magisterial Court of Jalandhar confirming that such money belonged to him. She also claimed that such Mool Chand Sharma had also explained Income Tax Authorities that such amount was reflected in the books of account of M/s Akash Trading Company in which Mool Chand Sharma was partner. She claimed that thus, she was able to discharge her responsibility of proving the source of money and was able to disclose the identity of the person who owned the money. As already noticed above, her such assertion was not accepted by Assessing Officer. She challenged such order and before Appellate Forum, she claimed that she was not afforded any opportunity to defend the allegations made by the Income Tax Authority nor any independent inquiry was carried out by the Assessing Officer and the assessment had been made on the basis of report of investigation wing which was not tenable in law and was based on surmises and conjunctures. Commissioner Income Tax (Appeals) observed that Return of income as well of the balance-sheet of M/s Akash Trading Company was a relevant piece of evidence to decide the ownership of alleged money and gave weightage to the fact that Sh. Mool Chand Sharma had voluntarily declared that alleged cash of Rs. 15 lacs belonged to him and thus held that, such amount was to be considered in the hands of Mool Chand Sharma and not in the hands of lady assessee. Thus mere verbal declaration given by A2 was accepted finally. Onus, whereas, in a criminal case under IPC and particularly under PC Act cannot stand discharged by mere verbal declaration.
CBI Vs Kulwaran Singh 02/2012 24/658.11 Moreover, Appellate Forum exonerated her on the ground, inter alia, that Mool Chand Sharma had filed an affidavit before Magisterial Court, Jalandhar confirming that such money belonged to him and he had even filed a petition before Hon'ble Punjab & Haryana High Court requesting for release of such amount of Rs. 15 lacs. Here things are different. Mool Chand Sharma did not even apprise this Court as to what was the fate of his such petition. With respect to the affidavit filed before the Court of Chief Judicial Magistrate, Jalandhar, I would say that this Court even does not know as to what was the fate of FIR registered by GRP. Exoneration was also primarily for the reason that Mool Chand Sharma had claimed that amount was reflected in books of account of M/s Akash Trading Company in which he was a partner.
8.12 I am of the view that proceedings under Prevention of Corruption Act and proceedings under Income Tax Act cannot be equated, in the present complex scenario, by any stretch of imagination. Here, prosecution is not under IT Act. Here we are dealing with a serious issue related to corruption. It cannot be said that for adjudication of trivial nature of proceedings under Income Tax Act and for decision in a serious criminal case under Prevention of Corruption Act and under relevant provisions of IPC, same set of evidence had/has been led and was/is considered. Here we are concerned about disproportionate assets. Undoubtedly, A-2 is a housewife and she has no source of income. She was admittedly carrying a sum of Rs. 15 lacs with her. She, being wife of public servant, has to give a satisfactory reply. Since she had no source of income, there was nothing wrong in CBI assuming that such amount would have been given to her by her husband. Her husband has, however, stated that he never knew about any such packet given to her. This rather puts a big question mark with respect to the fact whether Mool Chand Sharma was a family friend of A1 or not. A family friend would not hide things. If a sum of Rs. 15 lacs is to be given in a packet to a wife of a family friend then it is not feasible for me to digest that such family friend would not divulge the CBI Vs Kulwaran Singh 02/2012 25/65 contents of the packet to her. Rather, if at all A-3 was a close family friend, he would have immediately intimated A1 about his intention and would have disclosed to A-2 that the packet was containing Rs. 15 lacs. He would not have kept her in dark. After all, he must be knowing that she was wife of a public servant. Moreover, A-3 should have, in every eventuality, informed A1 that he had met his wife at Railway Station and had given her a packet containing Rs. 15 lacs. Nothing of that sort was done either as according to A1, he came to know about such fact only when his wife was apprehended. Moreover, as per A-3 Mool Chand Sharma, he had given the packet to A-2 and also told her that it would be collected by A-7 Harish Kumar at Jalandhar Railway Station. When statement of Mool Chand Sharma was recorded u/s 313 Cr.P.C., he stated that said packet was handed by him to A-2 Kulwant Kaur for Harish Kumar of Jalandhar. However, such Harish Kumar never reaches Jalandhar Railway Station to collect the packet. After all amount of Rs. 15 lacs is not a small amount. Mool Chand Sharma is not a big businessman as if a sum of Rs. 15 lacs did not matter to him. If he is to be believed then there was an urgency as the land was to be purchased immediately and in such a situation, if at all he had directed Harish Kumar to collect the packet at Jalandhar, it has not been explained as to why such Harish Kumar did not reach Jalandhar Railway Station. On the contrary, when statement Ex. PW41/B-3 of accused Harish Kumar was recorded by the investigative wing of Income Authorities on 29.10.1998, Harish Kumar claimed that he did not know that lady who was to bring cash and he did not have any advance information about her arrival. He also claimed that he came to know about her only next day when Mool Chand arrived at Jalandhar and informed him about her apprehension by the police. He also claimed that he did not know as to what instruction was given to that lady by Mool Chand Sharma. This also clearly shows that defence has concocted a story.
8.13 A-3 Mool Chand Sharma has not bothered to explain to the court as to form where he had got such substantial money of Rs. 15 lacs. His bald assertion u/s 313 Cr.P.C. cannot be said to be enough for discharge of burden. He should CBI Vs Kulwaran Singh 02/2012 26/65 have entered into witness box and should have led evidence to show that he owned and possessed that much money. Nothing of that sort has been done. During inves- tigation, CBI had seized various documents which eventually were not made part of relied upon documents and were returned to A3 Mool Chand Sharma on the basis of his application. Reference be made to order dated 29.09.2003. A3 was under
obligation to substantiate before the court that he, in fact, possessed such money. After all, as per report of Investigative Wing of Income Tax Department, he was a small time businessman who was getting salary of Rs. 8,000/- pm and had inconse- quential income from other sources including from M/s Akash Trading Company in which he was partner. He never bothered to place any record of such company to justify that he or his such company had been able to earn that big in no time. No transaction detail which he might have with any party has been shown or proved which may persuade the court to believe that he had that much profit or that much money in his hand. I have seen report of PW41 Sh. G.S.P. Kishore which has been proved as Ex PW41/A1(D-10). Surprisingly, A3 Mool Chand did not even think of re- butting his report as no question was put to Sh. Kishore by him.
8.14 In the case of STATE OF BIHAR V. LALU PRASAD 2008 CRI. L. J.
2433 PATNA, a case related to Disproportionate assets, it has been held that find- ings of Income-Tax Appellate Tribunal were not binding upon criminal Court and could not be held to be conclusive on ground that returns were filed much earlier than registration of FIR. Reliance was also placed on EMPEROR V. KHWAJA NAZIR AHMAD, AIR 1945 PRIVY COUNCIL 18, wherein it has been held as follows :-
"It is conceded that the findings in a civil proceeding are not binding in a sub- sequent prosecution founded upon the same and similar allegations ..... it is the duty of a criminal Court when a prosecution for a crime takes place be- fore it to form its own view and not to reach its conclusion by reference to any previous decision which is not binding upon it."CBI Vs Kulwaran Singh 02/2012 27/65
8.15 Reliance on D.S.P., CHENNAI V. K. INBASAGARAN 2006 CRI. L. J. 319 SC is misplaced. In that case, unaccounted money was recovered from house of accused (Public Servant) in raid by Income-tax Department. Such house was in joint possession of accused and his wife. His wife was running business and accused explained that all money belonged to his wife. She also owned up such money and such unaccounted money was assessed by I.T. Deptt. in the hands of wife of accused. There are two distinguishing features in the present case. In that case, wife of accused was working which is not so here. Moreover, in that case, in criminal prosecution, wife of such Public Servant-accused was not prosecuted at all and rather she entered as defence witness whereas here, she is co-accused.
8.16 In such type of case related to disproportionate assets, the initial burden is always on the prosecution to establish whether the accused has acquired property disproportionate to his known source of income. Once that is proved, onus shifts on to accused and he is under legal obligation to account satisfactorily the court. Such satisfaction has to be of such a nature which appears plausible, logical, just and reasonable.
8.17 After primary onus is discharged by the prosecution, it is for the accused to account satisfactorily for the assets in question and to establish that such assets were in complete synchronization with his income and not beyond. Undeniably, legal burden of proof placed on the accused is not as onerous as that of the prosecution. However, it is not just throwing some doubt on the prosecution version. The legislature has deliberately used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily". That means the accused has to satisfy the court that his explanation is worthy of acceptance. The burden of proof placed on the accused is an evidential burden though not a persuasive burden. The accused however, could discharge that burden of proof "on CBI Vs Kulwaran Singh 02/2012 28/65 the balance of probabilities" either from the evidence of the prosecution and / or evidence from the defence. It may look as if such procedure was contrary to the principles of criminal jurisprudence where the burden of proof is always on the prosecution and never shifts to the accused. However, in view of Section 106 of Evidence Act in matters "specially within the knowledge of the accused", such procedure has to be adopted. The prosecution cannot be expected to know the private affairs of a public servant related to acquisition of assets and source thereof and, therfore, it is for accused to explain about the possession.
8.18 In order to bring home guilt of accused u/s 13(1)(e) of PC Act, prosecution is under obligation to show as under:
(1) That the accused is a public servant;
(2) That the accused possesses pecuniary resources or property disproportionate to his known sources of income.
8.19 In the present case, I strongly feel that prosecution has been able to discharge its primary onus and accused, especially A1 has failed to account for possession of Rs. 15 lacs. If story of handing over money by Mool Chand Sharma is rejected, the only natural inference is that it belonged to A1 and A1 alone. A1 has out-rightly disowned such amount but the conclusion is simply irresistible.
REMAINING PORTION OF DISPROPORTIONATE ASSETS 9.0 Total amount of disproportionate assets is Rs. 19,47,358/- inclusive of sum of Rs. 15 lacs which A-2 Kulwant Kaur was carrying with her.
9.1 Now let me assess whether the remaining portion of disproportionate assets i.e. assets worth Rs. 4,47,358 has been satisfactorily accounted for or explained by the accused or not. Table of income of A1 Kulwaran Singh and his CBI Vs Kulwaran Singh 02/2012 29/65 wife Kulwant Kaur during the check period i.e. 05.07.1997 to 08.03.2000 is as under:
Sl. No. Particulars Amount in Rs.
1 Net salary received by Mr. Kulwaran 3,71,080/-
Singh during the period from July
97 to Feb. 2000
2 Final withdrawal from GPF vide 1,25,000/-
cheque no.A-647593 dt. 24.4.98 for
payment of PUDA's HIG Flat
3 Accrued interest on PPF A/c 1137 14,223/-
as on 31.03.99
4 Balance amount received from 22,404/-
PUDA, vide cheque No.295768
5 Interest accrued on PNB A/c no.610 5,164/-
of Tughlakabad of Kulwaran Singh
as on closure of check period
6 Interest accrued on BOI, Mumbai 2,664/-
A/c no.23870 as on 29.02.2000 of
Kulwaran Singh
7 Interest Free Loan from Jaswant 2,50,000/-
Singh for HIG Flat PUDA, Ropar
8 Interest Free Loan from his mother- 1,50,000/-
in-law for HIG Flat, PUDA, Ropar
9 Interest Free Loan from Jaswant 43,000/-
Singh for HIG Flat, PUDA, Ropar
10 LIC Policy no. 91076394 10,000/-
11 LIC Policy no.910759818 10,000/-
Total income 10,03,535/-
9.2 Total income shown is Rs. 10,03,535/-. During course of the
arguments, Sh. I.D. Vaid, learned defence counsel did not dispute most of the aforesaid entries except items motioned at Sr. no.1,7 & 9. He contends that the net salary received by A1 Kulwaran Singh has been shown as Rs. 3,71,080/- but salary has not been calculated properly as there is totaling error. He has also asserted CBI Vs Kulwaran Singh 02/2012 30/65 that A1 had taken loan of Rs. 3.5 lacs in all from his father Jaswant Singh but investigating agency has shown part of such loan amount vide serial nos. 7 & 9 as aforesaid and remaining amount of Rs. 57,000/- has not been considered by the investigating agency.
9.3 Let me now see the salary calculation in this regard. D-3 & D-4 are of essence for said purpose. D-3 contains pay particulars of A1 Kulwaran Singh for the period July 1997 to July 1999. It has been proved by PW11 Ms. Shakuntala Devi who was Administrative Officer at the relevant time and had forwarded said details to CBI under her signatures. I have seen due drawn statement Ex Pw11/B. D-4 contains pay particulars of A1 for the period August 1999 to February 2000 which have been proved by PW4 Sh. Pradeep Singh. These were sent to CBI by him under his signatures. Pay particulars enclosed with such letter have been exhibited as Ex. PW4/2. When the amount mentioned in both the aforesaid letters were added together, it was, in fact, established that there was evident calculation error as sum comes to Rs. 3,92,258/-. Thus, while totaling, investigating agency did not show requisite seriousness and, therefore, there is found to be shortfall of Rs. 20,178. A sum of Rs. 20,178/- is liable to be added in his income under item Sr. No.1.
9.4 Sh. Vaid has contended that A1 Kulwaran Singh had sought permission from his Department and had taken interest free loan of Rs. 3.5 lacs from his father Sh. Jaswant Singh. CBI has already taken into consideration a sum of Rs. 2.50 lacs (serial no. 7) and another amount of Rs. 43,000- (serial no. 9 ) as interest-free loan. According to Sh. Vaid, investigating agency did not deliberately consider another amount of Rs. 57,000/- . There is bald and uncorroborated contention only. A1 Kulwaran Singh entered into witness box as DW1 and in his testimony, he deposed that a sum of Rs. 57,000/- was also liable to be added as his income. Except for the verbal deposition, A1 has not placed on record any document to substantiate such fact. Undoubtedly, he had, during investigation, CBI Vs Kulwaran Singh 02/2012 31/65 informed about such loan by sending letter Ex. PW64/DB to CBI but that by itself does not serve the purpose.
9.5 It has been argued that father of A1 had made payment of Rs.1 lac directly to PUDA by way of two drafts and as far as first draft of Rs. 43,000/- is concerned, it has been considered by the investigating agency but for the reasons best know to the investigating agency, other draft of Rs. 57,000/- dated 26.06.1999 issued by SBI has not been counted. A1 has also claimed that he had sought permission from his Department and such permission was accorded which was there in the IPR Files seized by the investigating agency during investigation but one such file has been deliberately held back. Oral assertion, not supported by any documentary evidence, cannot be assumed to be satisfactory explanation or worthy of credence. A fact, which is in the exclusive and special knowledge of accused, has to be proved by accused and accused alone. Accused was bound to place on record any document showing that his father had issued any such draft of Rs. 57,000/-. He has not even got his father examined in order to substantiate his stand. No official from bank of his father has either been examined. D-66 (Ex. PW12/B) reflects the details of payment which PUDA had received from Kulwaran Singh with respect to H. No. HIG 1916, Sector-70, Mohali. Undoubtedly, there is one entry showing receipt of payment of Rs. 57,000/- by way of draft no. 739073 dated 26.06.1999 but there is no material whatsoever that such draft had been directly paid by the father of accused or that it was part of any loan amount. Prosecution has given benefit of draft of Rs. 43,000/- to the accused as it concluded that such amount had been paid by his father directly but that does not mean that accused is entitled to be given benefit of draft of Rs. 57,000/- automatically. No one stopped or precluded him from proving such fact before the Court in appropriate manner. There is also nothing on record to show that accused had sought any permission or intimated his department that such sum of Rs. 57,000/- was also part of loan amount or that such amount was paid to PUDA by his father directly. There is also no evidence as to how such loan was eventually repaid and, therefore, I find CBI Vs Kulwaran Singh 02/2012 32/65 myself unable to add Rs. 57,000/- also as part of interest-free loan from his father.
9.6 As already noticed above that accused has no dispute with respect to the other entries related to his income. Income of Rs. 1.25 lacs based on withdrawal from GPF has been proved by PW9 S.R. Sharma. Similarly, accrued interest on PPF amount has been proved by PW5 Ashok Ganpati. Interest accrued on PNB account and interest accrued on Bank of India, Mumbai have also been duly proved by PW1 and PW5.
9.7 As far as LIC policies are concerned, PW3 Sh. S.P. Mahane has proved the requisite particulars contained in Ex. PW3/1 where there is mention of money back payment of Rs. 20,000/- in all with respect to two policies mentioned at serial no. 10 & serial no. 11. Such payment is within check period. A1 himself also admits that these policies were his.
9.8 Thus, the income of A1 Kulwaran Singh and his family for the check period would be as under:
Sl. No. Particulars Amount in Rs.
1 Net salary during check 3,92,258/-.
2 Withdrawal from GPF 1,25,000/-
3 Accrued interest on PPF A/c 14,223/-
4 Amount received from PUDA 22,404/-
5 Interest accrued on PNB A/c 5,164/-
6 Interest accrued on BOI, Mumbai 2,664/-
A/c
7 Interest Free Loan from Jaswant 2,50,000/-
Singh
8 Interest Free Loan from his mother- 1,50,000/-
in-law
CBI Vs Kulwaran Singh 02/2012 33/65
9 Interest Free Loan from Jaswant 43,000/-
Singh
10 Money back from LIC Policy no. 10,000/-
91076394
11 Money back from LIC Policy no. 10,000/-
910759818
Total income 10,24,713
WHETHER ACCUSED HAD ANY ADDITIONAL INCOME
10.0 A1 has also stated that besides the aforesaid income, he had
following additional income which prosecution has not taken into consideration:-
(i) Proceeds of NSCs amounting to Rs. 16,120/- matured during check period.
(ii) Amount given by his father out of sale proceeds of a plot sold during the check period.
(iii) Amount given by father out of sale of agriculture proceeds.
(iv) Amount of Rs. 57,000/- already lying in his own account before check period.
10.1 Let me see all these heads one by one.
10.2 As regards proceeds of NSCs, A1 has claimed in his deposition that during check period, his National Saving Certificates worth Rs. 8,000/- got matured and he deposited the same in his bank account no. 23870, Bank of India, Mumbai which has not been taken into consideration. In this regard, my attention has been drawn towards the testimony of PW5 Sh. Ashok Ganpathy. He has proved the statement of account with respect to A/c No. 23870. D-15 contains such statement and in such statement Ex. PW5/B, there is reference of deposit of Rs. 16,120/- by way of cash on 17.01.2000. But, I cannot automatically correlate said entry as CBI Vs Kulwaran Singh 02/2012 34/65 maturity amount. I cannot also be oblivious of the fact that such deposit is by cash and not by cheque. There is again bald assertion that National Saving Certificates had matured during check period and that Rs. 16,120/- was towards such maturity amount only. A1 has not placed on record any proof that he possessed any National Saving Certificate much less that theses were going to mature in the year 2000. He has also not examined anyone from post office in order to show that he was having any such NSCs and that the concerned post office had made payment of Rs. 16,120/- as maturity amount. In such a situation, merely on the basis of bald assertion, it will not be possible to straightaway believe that the cash deposit entry of Rs. 16120/- is due to the maturity amount of NSCs.
10.3 According to A1, his father had sold one plot during check period and a sum of Rs. 1.80 lacs, out of the sale proceeds, had been given to him. He has not bothered to give any particulars with respect to piece of land which his father owned and possessed. He has not placed on record of any sale deed. Nobody knows as to what was date of any sale deed so as to ensure that it fell within the check period and also the sale consideration and most importantly he has not examined his father in order to substantiate his such contention. A1 claimed that sale deed of such property was also seized by CBI during the investigation but was deliberately held back. Such sale deed would have been a registered document and A1 could have easily examined some official from the office of Sub-Registrar in order to prove such fact. Moreover, record reflects that his father had prayed for return of such documents which were not relied upon by CBI. Such request was acceded to by the court and, therefore, all such documents would be with none other than father of A1 and these could have been easily proved by him. Now, on the contrary, A1 himself his holding back the evidence. Similarly assertion qua additional income of Rs. 1.50 lacs resulting from sale of agriculture produce and given to him by his father has not been substantiated in any manner whatsoever. Therefore, the amount of Rs. 1.60 lacs as well as Rs. 1.50 lacs cannot be reckoned to be as additional income of accused.
CBI Vs Kulwaran Singh 02/2012 35/6510.4 A1 also wants that a sum of Rs. 57,000/- which was already lying in his account before the check period should also be reckoned as his income. In this regard, in his deposition, he claimed that a sum of Rs. 57146/- was lying in his bank A/c No. 23870, Bank of India, Mumbai on 09.07.1997 and this was to be considered as his income. I do not find any merit in his such contention. Here, CBI has very categorically and specifically able to pinpoint the income, assets acquired and expenditure during the check period. No income, expenditure or acquisition either before check period or after check period has been considered. It has been stated so very clearly in the challan itself. Therfore, any amount lying in the bank prior to the check period cannot be considered to be part of income.
10.5 In view of foregoing discussion, no other additional income is liable to be added and, therefore, income of the accused for the check period remains as Rs. 10,24,713/-.
EXPENDITURE DURING THE CHECK PERIOD 11.0 Now let me come to the expenditure part. According to investigating agency, there was total expenditure of Rs. 3,64,912/- by accused and his wife during the check period. Following chart contains all such details.
S.N Particulars Amount in Rs.
o.
1 Expenditure on education of his children 22,076/-
2 Electricity Bills for house of 69,949/-
Charmswood village Faridabad
3 Electricity Bills paid by Kulwaran Singh 4,189/-
by Feb-2002
4 Telephone Bills payment of phone No. 3,594/-
4038447, Mumbai
CBI Vs Kulwaran Singh 02/2012 36/65
5 Payment of Telephone no. 252135 5,443/-
Charmswood village, Faridabad
6 House Rent Charmswood Faridabad 1,12,640/-
7 Payment to OUTLOOK 1,095/-
8 Payment of Rs.2000 to Mool Chand 2,000/-
9 House hold expenses during the check 1,22,456/-
period
10 Payment to servant @ Rs.800/-pm from 20,000/-
April 1998 to February 2000
11 Amount spent on purchase of Rly. 1,470/-
Ticket dt.16.10.98 from N.D. Railway
Station to Jalandhar
Total Expenditure 3,64,912/-
11.1 Let me now see whether prosecution has been able to prove such
expenditure amount or not.
EXPENDITURE ON EDUCATION OF CHILDREN
11.2 PW35 Dr. Ajeet Singh, Principal of Guru Nanak Khalsa College of
Arts, Science & Commerce, Mumbai has entered into witness box and has proved letter D-34 (Ex. PW35/B). As per said letter, Mr. Grewal Navdeep Singh (son of A1) was their student in 11th class and 12th class during academic year 1998-99 & 1999-2000 and vide receipt dated 28.07.1998, Rs. 10,405/- and vide receipt dated 10.06.1999, Rs. 10,403/- was paid towards tuition fee. According to defence, receipts have not been placed on record and there is no material on record to show that such payment had been actually made by the A1. I have seen testimony of PW35 Dr. Ajeet Singh very carefully. According to him, these payments had been received in cash. He admitted that he had not brought any cash voucher and CBI had also not sought from them any such copy of receipt or cash voucher. It was suggested to him that payment of Rs. 10,000/- dated 10.06.1999 was received by the college against a demand draft issued by Oriental Bank of Commerce, Jalowal, CBI Vs Kulwaran Singh 02/2012 37/65 District Hoshiarpur, Punjab. I have seen statement of account D-12 (Ex. PW19/C) of said account. When PW19 J.P. Parbagga, Senior Branch Manager, Oriental Bank of Commerce entered into witness box, no question was put by the defence with respect to preparation of any such draft of Rs. 10,000/-.I have seen statement of account Ex. PW19/C and there is mention of one debit entry of Rs. 10,016/- towards preparation of some draft. I feel that perhaps Rs. 16 might be towards preparation charges of draft but fact remains that merely because any such entry exists, it cannot be automatically assumed that the draft which had been prepared was the one favouring said college. Again father of A1 Kulwaran Singh was the most material witness and only he could have explained and proved the aforesaid fact. A1 Kulwaran Singh has not chosen to examine him and, therefore, it cannot be said that father of A1 had made payment of Rs. 10,000/-.
11.3 PW17 Sebastian Dias has come from Don Bosco High School Matunga, Mumbai where Master Grewal Navdeep Singh studied from 1988 till 1998. He has proved letter Ex. PW17/A. In relation to check period, one entry meant for standard 10th is worth discussing. As per said entry, a sum of Rs. 550/- towards Annual Computer stationery and ancillaries and Rs. 480/- towards Annual Activities fee was received for the session 1997-1998. I am mindful of the fact that check period starts from 05.07.1997 and, therefore, prosecution was duty to show that aforesaid payment made during 1997-98 was within check period. Normally academic year for class 10th starts early. I, therfore, exclude such amount paid in session 1997-1998.
11.4 PW59 Melvin D'souza has come from Auxilum Convent High School and has proved the particulars regarding tuition fee paid by Ms. Grewal Kittu Kulwaran Singh (daughter of A1 Kulwaran Singh). These are contained in Ex. PW59/A. Again keeping in mind the fact that check period starts from 05.07.1997, I am including tuition fee for Standard VII and VIII only which comes to Rs. 156/- only. 11.5 Thus the total expenses on education comes to Rs. 10,405/- + CBI Vs Kulwaran Singh 02/2012 38/65 Rs. 10,403/-+Rs. 156. Its total is Rs. 20964/-
ELECTRICITY BILLS PAID FOR HOUSE OF FARIDABAD 11.6 According to CBI, A1 resided as tenant at H. No. 5/15, Second Floor, Park Avenue, Charmswood Village, Faridabad when he was posted in Delhi. Such Charmswood house was in the name of Amandeep Singh. Such Amandeep Singh has not entered into witness box and prosecution has examined his mother PW6 Ms. Jasbir Kaur. Undoubtedly, she has deposed that such house was on rent with Kulwaran Singh from September, 1997 till February, 2000 and the rent was Rs. 3520/- per month which was exclusive of water and electricity charges. She was also shown 18 cheques which had been issued by Kulwaran Singh towards rent of the house. With respect to electricity, however, there is no material on record which may show that A1 had incurred Rs. 69,949/- towards electricity consumption. No one from the Electricity Department has graced the witness box. Nobody knows as to where are those bills and who paid those- landlord or the tenant. Prosecution failed to examine one official Jeet Ram cited at Sr. no. 49 of list of witnesses to prove said fact. Careful perusal of record rather reflected that he died on 13.02.2006 but prosecution did not choose to examine any other official in his place. Moreover, tenancy was created by Amandeep Singh and cheques were also issued in the name of Amandeep Singh but he has not graced the witness box. Nobody knows as to in whose name electricity meter was and what was the proportioned payment towards electricity consumption by Kulwaran Singh. Moreover, only Amandeep Singh could have conclusively shown whether rental was exclusive of electricity or not. In view of aforesaid, I find myself unable to hold that A1 has spent Rs. 69,949/- on electricity bills pertaining to house of Charmswood Village Faridabad.
ELECTRICITY BILLS FOR HOUSE OF MUMBAI CBI Vs Kulwaran Singh 02/2012 39/65 11.7 Let me straightaway come to the testimony of PW20 N.N. Hawaldar. Surprisingly, his testimony is of one line and he merely tendered three documents in evidence without elaborating the requisite details. I have, seen these documents Ex. PW20/A, Ex. PW20/B & Ex. PW20/C which pertain to electricity consumption history with respect to consumer Haresh T. Bhatia of premises at 3rd Floor, 166, CGS Colony, 8 Sheikh Mistri Road, Mumbai. Prosecution wants me to believe that said premises was in occupation of family of Kulwaran Singh and the electricity charges pertaining to electricity meter were borne by none other than A-2 Kulwant Kaur. Prosecution has left everything for inference. It did not take any pain to at least apprise the Court as to who was this Haresh T. Bhatia? So much so, it has not been even made clear that premises mentioned in those documents was under the occupation of A1 Kulwaran Singh or his family. It has also not been made clear whether payment is with respect to entire building or with respect to the portion which was under the occupation of Kulwaran Singh as tenant. I need not remind myself that in a criminal trial, there is no place for surmises and conjectures and prosecution is duty bound to establish facts with complete precision and clarity so as to leave no scope for any doubt. Keeping in mind the aforesaid discussion, I cannot attribute expenditure mentioned in Ex. PW20/B to A1 Kulwaran Singh.
TELEPHONE BILLS PAYMENT OF PHONE NO. 4038447 OF MUMBAI 11.8 According to prosecution, telephone no. 4038447 was installed in the name of Mrs. Kulwant Kaur while she was living in Mumbai. For this, prosecution is armed with one letter D-77 which has been proved as Ex. PW52/C and the computer generated report showing payment details with respect to said phone number contained in Ex. PW52/D and according to prosecution, during the check period, A1 Kulwaran Singh made payment of Rs. 3,594/- towards telephone calls with respect to said connection. PW52 Sh. K.S. Murthy, official of MTNL Mumbai has proved the aforesaid letter and computer generated report. In the letter, CBI Vs Kulwaran Singh 02/2012 40/65 subscriber has been mentioned as Kulwant Kaur and there is no cross-examination with respect to aforesaid fact at all. There does not seem to be any dispute with respect to the payment either. Relevant entries under said bill are as under:
Rs. 571/-
Rs. 929/-
Rs. 534/-
Rs. 336/-
Rs. 1,224/-
---------------------------
Total Rs. 3,594/-
---------------------------
11.9 Payment of Rs. 966/- has been wrongly included by CBI as it was
made on 16.03.2000 i.e. beyond check period. Thus, prosecution has been able to prove expenses as Rs. 3,594/- under said head.
TELEPHONE NO. 252135 AT CHARMSWOOD VILLAGE, FARIDABAD 11.10 According to the case of prosecution, as already discussed above, when A1 was posted in Delhi, he was residing in tenanted accommodation at Charmswood Village, Faridabad and while residing there, A1 was using telephone no. 252135 and had incurred Rs. 5,443/- towards payment of telephone bills.
Prosecution has examined PW8 Sh. B.S. Ranga, official from Telecom Department to prove the aforesaid fact. He merely claimed that said telephone no. fell within Suraj Kund Exchange and he had prepared details as contained in D-27 (Ex. PW8/A). However, in the next breath, he claimed that he was not able to tell as to how much payment was made with respect to meter reading contained in Ex. PW8/A. According to him, only Account Officer was in a position to say so. He also CBI Vs Kulwaran Singh 02/2012 41/65 claimed that CBI had not made any inquiry from him. Since he was found resiling from his previous statement, he was cross-examined by the prosecution with the permission of the Court but despite that he did not support the case of prosecution and pleaded his ignorance whether a sum of Rs. 5785/- was paid by the consumer towards telephone charges for said connection between 30.04.1997 to 15.02.2000 or not. I would not hesitate to add that prosecution has not even bothered to place on record any material to show that A1 Kulwaran Singh was the subscriber or user of said telephone connection. Actual landlord has not graced the witness box. Even mother of landlord has not stated anything in this regard. Therefore, there is not sufficient material to connect A1 with the telephone no. 252138. Such expenses, therefore, do not stand proved.
HOUSE RENT OF CHARMSWOOD VILLAGE FARIDABAD 11.11 According to prosecution, when A1 was residing as tenant at Charmswood Village, Faridabad, he was paying rent @ Rs. 3520/- per month. There is no dispute regarding rate of rent though it has already been observed that it is not crystal clear whether such rent was exclusive of electricity charges or inclusive. Reference be made to the testimony of PW6 Mrs. Jasbir Kaur. She was shown Ex. PW1/F1 to Ex. PW1/F18 which are contained in D-44 to D-61. All these cheques are of Rs. 3520/- each and the amount of rent under such cheques comes to Rs. 63,360/-(3520X18). These cheques were in the name of Amandeep Singh, son of Mrs. Jasbir Kaur and all such cheques were deposited by Amandeep Singh with his bank i.e. State Bank of Patiala, Hauz Khas Branch. Statement of account has been proved as Ex. PW2/A by PW2 Thakur Lal. I would also like to say that perhaps due to some typographical error, 18 cheques proved by the prosecution in this regard have been mentioned as 17 cheques by PW2 Thakur Lal. All such 18 cheques have been proved by PW6 Mrs. Jasbir Singh and there does not seem to be any dispute with respect to issuance of these cheques towards rental. However, I cannot shut my eyes to statement of account of bank of A1 from which, he had CBI Vs Kulwaran Singh 02/2012 42/65 issued all such rental cheques. Such statement has been proved as Ex PW 1/B and it contains reference of 30 cheques of Rs. 3520/- each. There is no reason to disbelieve such entries appearing in bank record of accused's own bank. Thus, prosecution has been able to prove expenditure towards house rent as Rs. 1,05,600/- only.
PAYMENT TO OUTLOOK MAGAZINE 11.12 In order to prove such expenditure, prosecution was heavily relying upon the testimony of Sh. D.R. Wadhwa. He entered into witness box but did not support the case of prosecution. PW7 Sh. D.R. Wadhwa was working with Outlook Magazine as Manager (Administration) and he was shown receipt no. 35259 dated 20.12.1999. He deposed that he could not confirm its correctness with certainty. He was also shown one cheque Ex. PW1/F19 which was issued by A1 Kulwaran Singh in the name of Outlook Magazine and he admitted that such cheque had been credited in the account of Outlook. However, in his cross-examination, he claimed that he could not say whether receipt shown had been issued by their office. Fact, however, remains that there is a cheque issued by A1 favouring Outlook. Such cheque has been proved as Ex PW1/F19 and is dated 20.12.99 and amount was debited from the bank of A1 as is apparent from statement of account Ex PW1/B. Debit date is 02.02.2000 which is in check period. Thus such expense of Rs. 1095/- stands proved.
PAYMENT OF RS. 2000/- TO SH. MOOL CHAND SHARMA 11.13 According to prosecution, A1 Kulwaran Singh had made payment of Rs. 2,000/- to by way of cheque. Cheque has been proved by prosecution as Ex. PW1/F22 and is dated 12.10.1998. Amount under such cheque was debited from the bank of A1 as is apparent from statement of account Ex PW1/B. Debit date is 27.10.1998 which is in check period. A1 also does no dispute such expenditure CBI Vs Kulwaran Singh 02/2012 43/65 head. Thus such expense of Rs. 2000/- stands proved.
HOUSEHOLD EXPENSES DURING THE CHECK PERIOD 11.14 Prosecution has assessed household expenses as 1/3rd of net pay drawn. This is done as per the observations appearing in the case of SAJJAN SINGH VS. SATE 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.
11.15 I am also conscious of the fact that accused was running two houses as his family was residing in Mumbai and he himself separately in Faridabad. So, there cannot be anything bad in calculating such charges at said rate of 1/3rd of Net Salary. It comes to Rs. 1,30,419/-
PAYMENT OF SALARY TO SERVANT @ RS. 800/- P.M. 11.16 According to the prosecution, A1 Kulwaran Singh was having one servant and he was paying Rs. 800/- per month to him. Such fact has not been proved by the prosecution in any manner whatsoever. When I went through the judicial record, I came across one statement of witness Rajesh Thapa u/s 161 Cr.P.C. who claimed that he was working as domestic servant of Kulwaran Singh at Block-V, House No. 15, Park Avenue, Charmswood Village, Faridabad for last two years and Kulwaran Singh was paying Rs. 800/- per month as salary. However, this witness has not entered into witness box. There is no other witness who can throw any light with respect to salary @ Rs. 800/- per month to any domestic help and such expenditure of Rs. 20,000/- does not stand proved.
CBI Vs Kulwaran Singh 02/2012 44/65AMOUNT SPENT FOR PURCHASE OF TRAIN TICKET 11.17 Prosecution wants the Court to believe that A1 had also incurred a sum of Rs. 1470/- for purchasing ticket. Mark PX is the same ticket on which A-2 Kulwant Kaur and her daughter travelled to Jalandhar by Shatabadi Express. However, merely because ticket has been placed on record, it cannot be automatically inferred that payment was made by none other than A1. Resultantly such head does not stand proved.
11.18 Thus, the expenditure stands proved as under:-
S.No. Particulars Amount in Rs.
1 Expenditure on education 20,964
2 Electricity Bills paid for --------
Charmswood village Faridabad
3 Electricity Bills paid by Kulwaran --------
Singh by Feb-2002
4 Telephone Bills payment of phone 3,594/-
No.4038447, Mumbai
5 Telephone no. 252135 -------
Charmswood village, Faridabad
6 House Rent Charmswood 1,05,600
Faridabad
7 Payment to OUTLOOK magazine 1,095/-
8 Payment of Rs.2000 to Mool 2,000/-
Chand
9 House hold expenses 1,30,419
10 Payment to servant @ Rs.800/- ----
pm
11 Purchase of Rly. Ticket -------
Total Expenditure 2,63,672
CBI Vs Kulwaran Singh 02/2012 45/65
ASSETS ACQUIRED DURING CHECK-PERIOD
12.0 According to the prosecution, A1 had acquired movable assets as
well as immovable assets and these are described as under:
1) Immovable assets Rs. 8,46,715/- (As per details given in Annexure-
B-I of chargesheet)
2) (a) Movable Assets Rs. 21,924/- (Mumbai House Search).
(As per details given in Annexure-B-II)
(b) Movable assets Rs. 80,380/- (Faridabad House Search). (As per details given in Annexure-B-III)
(c) Other movable assets Rs. 16, 36,962/-.
(As per details given in Annexure-B-IV including sum of Rs. 15 lacs found with A2.) 12.1 Let me scrutinize these one by one.
IMMOVABLE ASSETS OF RS. 8,46,715/-.
12.2 A1 had acquired movable property bearing no. 916/17, HIG, PUDA, Mohali, District Ropar, Punjab. There is no dispute with respect to acquisition of such property. According to prosecution, A1 had made payment of Rs. 8,46,715/- towards such acquisition during the check period. Such details are contained in annexure-B-I. It is as under:-
CBI Vs Kulwaran Singh 02/2012 46/65 Sl. No. Date Amount in Rs.
1 08.06.1998 11,000/-
2 11.05.1998 1,66,727/-
3 10.07.1998 11,000/-
4 27.07.1998 23,000/-
5 27.07.1998 1,000/-
6 19.08.1998 11,000/-
7 12.10.1998 33,000/-
8 11.12.1998 11,000/-
9 21.01.1999 11,000/-
10 24.02.1999 11,000/-
11 09.03.1999 11,000/-
12 19.04.1999 11,000/-
13 17.05.1999 11,000/-
14 29.06.1999 5,23,988/-
Total 8,46,715
CBI Vs Kulwaran Singh 02/2012 47/65
12.3 According to investigating agency, PUDA had returned a sum of Rs.
22,521/- to A1 Kulwaran Singh, during check period, being excess payment. Due credit had been given to such payment of Rs. 22,521/- as a sum of Rs. 22,404/- has been shown as part of income of accused. This is after deducting Rs. 117/- as bank charges.
12.4 Stand of the accused is that out of the entire aforesaid amount, part payment worth Rs. 1,51,000/- was made by his father directly to PUDA and, therefore, it cannot be credited to his account. I have already noticed above that A1 Kulwaran Singh has not been able to substantiate such fact in the desired manner. According to him, his father had paid 11 installments of Rs. 11,000/- each besides Rs. 1 lac (Rs. 43,000+ Rs. 57,000) directly to PUDA by demand drafts. He also claimed that a sum of Rs. 62,700/- was paid prior to check period and said amount could not have been counted. Check period starts from 05.07.1997 and I have seen testimony of PW12 Jagdish Kumar and PW48 Sanjeev Rabra very carefully. PW12 Jagdish Kumar was working as Account Officer in PUDA and he has proved entire file concerning PUDA allotment as Ex. PW12/A (D-84). I have seen the file. Statement of payment is contained in D-66 which has been proved as Ex. PW12/B. This statement has also been prepared by PW12 Jagdish Kumar. In such statement, there is reference of payment of Rs. 58,700/- on 26.11.1996 and another payment of Rs. 4000/- in 1989 but such payment, and rightly so, has not been considered by the investigating agency being outside check period. A total sum of Rs. 8, 46,715/-was paid during check period out of which a sum of Rs. 22521/- was refunded being excess payment.
12.5 PW48 Sanjeev Rabra was posted as Superintendent in Estate Office, Mohali, Punjab. He claimed that Ex. PW12/B was containing details of the payment received vide demand drafts and the details were as per official record. There is no CBI Vs Kulwaran Singh 02/2012 48/65 challenge to such fact as is apparent from the sketchy cross-examination of the witness. As already noticed, there is no material to show that father of accused had made any payment to PUDA except for payment of Rs. 43,000/- on 28.06.99 and, therefore, it stands proved that A1 Kulwaran Singh had made payment of Rs. 8,46,715/- towards said house allotted to him by PUDA. A1 wants that such part of payment made to PUDA as was from loan from his father be excluded from his expenses. However, he is not justified in saying so. Such loan amount has already been shown as his income. If it is shown as income, it is also required to be considered while computing expenses. Had it not been considered as income, I would have certainly excluded such part from his expenses. Thus the entire amount of Rs. 8, 46,715/- has to be calculated as expenses incurred during check period for acquisition of immoveable assets.
12.6 Let me now come to moveable assets as per challan. Following chart will prove to be handy:-
S. No. Particulars Amount in Rs.
1 (i) House hold items as on 21,924/-
8.3.2000, flat No. 166,sector-7,
Antop Hill, Mumbai
1 (ii) House hold items as on 80,380/-
8.3.2000, 5/15, IInd Floor, Park
Avenue, Charmwood Village,
Faridabad
2 Cash seized by GRP Jalandhar 15,00,000/-
on 16.10.98 from Kulwant Kaur
3 Cash found on 16.10.98 from 6,172/-
Kulwant Kaur
4 EPF A/c no. 1137 of Kulwaran 21,000/-
Singh
5 Balance in BOI, Ballard Estate, 19,662/-
Mumbai A/c no.23870 as on
8.3.2000
CBI Vs Kulwaran Singh 02/2012 49/65
6 Balance in PNB Tughlakabad A/c 17,826
no. 610 as on 2.3.2000
7 Premium paid in LIC dt. 3.12.87 10,000/-
policy no.910759817 of Kulwaran
Singh. ALY Rs.3333.50 of Rs.
50,000/- for the period 1998 and
1999
8 LIC policy no.910763947 dt. 10,081/-
7.3.89 of Rs.50,000/- ALY Rs.
3360.30 for the period 1998 and
1999
9 LIC policy no.880443117 dt. 29,998/-
20.7.98 Rs.2,00,000/- ALY Rs.
14999/- for the period 1998 and
1999
10 ULIP-71 policy No. 22,223/-
910111017414 purchased on
29.1.91 with date of maturity
13.2.2001 paid total amount Rs.
60,000/-
Total movable assets 17,39,266/-
MOVABLE ASSETS RS. 21,924/- (MUMBAI HOUSE SEARCH)
12.7 I have seen statement of Panch witness i.e. PW 51 Sh. Chetanya
Goswami and considered the inventory Ex PW51/A very carefully. I have considered only those items which clearly fall within check period. Few entries contain over- writings and I have excluded those from scope of computation for want of requisite clarity from concerned seizing officer regarding such over-writings. If all these items are added up, total comes to Rs. 11,500/-. Keeping in mind the nature of articles and the difference of time between alleged acquisition and valuation, I further give concession of 25% to accused. Thus the total assets comes to Rs. 8625/-.
CBI Vs Kulwaran Singh 02/2012 50/65MOVABLE ASSETS RS. 80,380/- (FARIDABAD HOUSE SEARCH) 12.8 I have seen the testimony of PW13 Subhash Chand and of PW 26 D.D.Sharma who were witnesses to search and in whose presence Observation Memo was prepared. Such Memo has been proved as Ex PW13/A. Check period starts from 05.07.1997. There are various articles which have been shown acquired in 1997. CBI has not made it clear as whether such acquisition is positively within the check period or not. Since, there is a chance of these items being acquired in 1997 but prior to 05.07.1997, I exclude all such items from computation. Balance remains is of Rs. 36,330/-. Again keeping in mind the nature of articles, which even include bulbs, toiletries, spices, Flour etc and the difference of time between alleged acquisition and valuation, I further give concession of approximately 25% to accused. Thus the total assets comes to Rs. 27, 200 after rounding off.
CASH SEIZED BY GRP JALANDHAR ON 16.10.98 FROM A2 12.9 It has already been held, as per the discussion appearing in earlier part of the order, that such amount of Rs. 15 lacs is not of accused Mool Chand Sharma but of A1 only.
CASH OF RS. 6,172 SEIZED BY GRP ON 16.10.98 FROM A2 12.10 According to the case of prosecution, as already noticed above, when A-2 was apprehended by GRP officials at Jallandhar Railway Station, she was carrying a sum of Rs. 15 lacs with her. According to CBI, she was also found in possession of gold ornaments worth Rs. 1.34 lacs and another sum of Rs. 6,172/- with her at that time. Since date of her journey falls within the check period, learned PP has contended that such amount and ornaments are also to be considered as assets acquired by A1. There is no dispute that A-2 had travelled in Shatabadi Train and was intercepted by GRP officials and a sum of Rs. 15 lacs was also recovered CBI Vs Kulwaran Singh 02/2012 51/65 from her possession. Now it is required to be seen whether prosecution has been able to prove whether she was also carrying a sum of Rs. 6,172/- or not. In this regard, let me straightaway come to the testimony of PW14 & PW15. PW14 Darshan Singh was posted as Deputy Superintendent of Police, GRP, Jalandhar Railway Station and he along with staff was on checking duty at Railway Station Jalandhar. In the relevant portion of his testimony, he deposed that when A-2 Kulwant Kaur alighted from Shatabadi Express at Railway Station Jalandhar at Platform No. 1, she was having a bag in her hand and when he inquired from her as to what was there in the bag, she became perturbed and could not reply and then a sum of Rs. 15 lacs was recovered from that bag. He also deposed that besides that amount of Rs. 15 lacs, there were clothes and jewelry in the bag. PW15 Manjeet Singh has also deposed about recovery of Rs. 15 lacs. None of them narrated any direct and specific fact that she was also carrying Rs. 6,172/- with her. Seizure memo was prepared and such seizure memo has been proved as Ex. PW15/A. No document related to FIR No. 96/98 PS GRP, Jalandhar has been placed on record which may show that at that time A-2 was also carrying a sum of Rs. 6,172/-. Thus, prosecution has not been able to prove possession much less acquisition of such asset during check period. I would also like to comment that as per the case of prosecution, A-2 was carrying jewellery with her. Valuation of such jewellery articles was also got done on 17.10.1998 and such valuer i.e. PW36 Sh. Rajesh Seth has entered into witness box and has proved his report regarding all such jewellery articles. Total worth of such jewellery was found to be Rs. 92002.00 + Rs. 42,426.00. It included her worn ornaments also. These are, however, not shown as part of movable assets acquired during check period.
EPF A/C NO. 1137 OF KULWARAN SINGH 12.12 In order to prove said acquisition, prosecution has examined PW5 Ashok Ganpati who was working as Deputy Chief Manager (Deposit), Bank of India, Ballard Estate, Mumbai where A1 was having his PP A/c No. 1137. Certified copy of CBI Vs Kulwaran Singh 02/2012 52/65 statement of account of PPF account has been proved as Ex. PW5/D and there are two entries which prosecution claims form part of the movable assets. One entry is dated 16.02.1998 and is of Rs. 13,000/- and second entry is of 15.03.1999 and is of Rs. 8,000/-. Total comes to Rs. 21,000/- and as per CBI, said amount landed in the said account by way of acquisition. PPF form has also been proved as Ex. PW5/E and according to PW5, A1 had not withdrawn any amount from PPF after 27.09.1994. Aforesaid movable asset also stands proved.
BALANCE IN BOI, BALLARD ESTATE, MUMBAI A/C NO.23870 12.12 Again reference be made to the statement of PW5 Ashok Ganpati. A1 was having saving account no. 23870 with said Branch of Mumbai and statement of account has been proved as Ex. PW5/B and as on 09.07.1997, there was already a sum of Rs. 57,146.82 in said account. Investigating agency has straightaway jumped to the entry dated 04.02.2000 which shows balance amount in said account as Rs. 19,662.92 and has taken said amount as acquisition of movable asset. It is not the right approach as investigating agency has very clearly mentioned in charge-sheet that it had not taken any movable or immovable asset acquired by A1 or his family prior to or after the check period. Without considering the balance lying before the check period or at the start of check period, it was not justifiable to straightaway jump to the conclusion that whatever amount was found lying in said back account as on 04.02.2000 was to be assumed as movable asset acquired during the check period. Therefore, I find myself unable to consider such amount of Rs. 19,662/- as the one which A1 had acquired during the check period.
BALANCE IN PNB TUGHLAKABAD A/C NO. 61012.13 Accused was also having one bank account with Extension Counter of PNB, ICD, Tugalkabad, Delhi. It was having SB A/c No. 610. in this regard testimony of PW1 S.S. Bhatia and PW25 A.K. Aggarwal is important. Statement of CBI Vs Kulwaran Singh 02/2012 53/65 account has been proved as Ex. PW25/B. This account was opened during the check period and there are various debit and credit entries and as on 02.03.2000, there was balance of Rs. 17,826/- in said account. According to CBI, since aforesaid account was opened during the check period with no previous balance, such amount of Rs. 17,826/- can be considered to be acquisition of movable asset. This again is not correct approach. It was salary amount of accused. He also issued cheques of rental from said account and paid some installments to PUDA from said account. In such a situation, CBI was required to be very specific as to what was the actual acquisition, if any and should not have swayed away by last balance. Said head also, therefore, does not stand proved.
PREMIUM PAID IN LIC POLICY NO.910759817 PREMIUM PAID IN LIC POLICY NO.910763947 PREMIUM PAID IN LIC POLICY NO.880443117 12.14 There is no dispute that A1 was having all the three aforesaid polices. There is no dispute that he had made payment of premium also for said policies. In this regard, I have seen the testimony of PW3 S.P. Mahane, Administrative Officer, LIC and of PW18 J.S. Tolia the then Senior Branch Manager of Chambur Branch of LIC and the details of all the said policies are found contained in letter Ex. PW3/1 (D-31).
12.15 I would, however, at the very outset, like to add that it does not stand to reason as to why the premium payment has been shown to be a part of movable asset acquired by A1 during the check period. It was required to be rather shown as part of the expenditure incurred by A1 during the check period. In the ultimate analysis, it may not make much difference but ideally, it should have been under the head of expenditure.
12.16 As far as policy mentioned at serial no. 7 is concerned, according to CBI Vs Kulwaran Singh 02/2012 54/65 prosecution, A1 had made payment of three premiums of Rs. 3333.50 each during the check period. I am also of the opinion that there are three payments of premium which are found made during the check period and, therefore, prosecution is justified in reckoning Rs. 10,000/- in this regard.
12.17 As regards the policy mentioned at serial no. 8, I would, however, like to mention that expenses should be of check period and it has not been made clear by the prosecution as to when payment of Rs. 3360.30 for 97-98 was actually made by A1. It was the duty of the CBI to conclusively show that such payment was made on or after 05.07.1997 and not before that. It is important because the date of commencement of policy is 07.03.1989.
12.18 As regards, subsequent payment for 1988-89, the cheque got dishonoured and some deposit was made on 05.05.1999 but there is no clarity as to who had made such deposit. Thus, expense as mentioned at serial no. 8 alleged to be of Rs. 10,081/- does not stand proved.
12.19 As regards third policy mentioned at serial no. 9, both the payment of premiums are found to be well within the check period. Single premium is of Rs. 14,999/- and thus total payment is of Rs. 29,998/-. Thus, it stands proved that premium payment of Rs. 10,000/- & Rs. 29,998/- i.e. Rs. 39,998/- was made by accused during check period. Such amount is shifted from the chart of acquisition of assets to expenditure.
AMOUNT OF RS. 22,223/-UNDER ULIP 12.20 As far as ULIP policy is concerned, there does not seem to be any dispute. Prosecution is armed with D-38 which is letter written by UTI to CBI in CBI Vs Kulwaran Singh 02/2012 55/65 which it has been mentioned that A1 had joined ULIP-71 on 29.01.91 for which amount of Rs. 60,000/- was to be paid in 10 equal installments of Rs. 6,000/- each to be payable on 10th January every year. Such letter along with statement has been by admitted by accused as Ex. P-4 and the statement of account would reflect payments made during the check period and premium earned by A1. It is as under:
S. Date of Premium Premium earned
No payment of Amount on such units
. premium
1 15.01.199 Rs. 6,000/- Rs. 1539.03
2 08.01.1999 Rs. 6,000/- Rs. 1571.96
3 03.01.2000 Rs. 6,000/- Rs. 2026.49
Total Rs. 18,000/- Rs. 5137.48
12.21 Surprisingly, the amount of Rs. 18,000/- paid as premium during the
check period has not been counted by the prosecution as part of expenses. It should have been done. If prosecution wants to consider any asset acquisition related to ULIP then it has also to consider the premium payment. The premium earned on such units during the check period is Rs. 5137.48 for said three premium payment and there is one more entry of Rs. 2070.75 dated 01.07.1998 which also shows that said amount was towards premium on the units. Thus, total premium which A1 had earned against ULIP policy during the check period is Rs. 5137.48 + Rs. 2070.75 = Rs. 7208.23. Thus, amount of Rs. 7208.23 be shifted from here and would be considered as income and not acquisition of assets. If in relation to any saving account, interest accrued is counted as income, same should stand true for ULIP as well. Since, it is admitted document, I count such sum of Rs. 18,000/- as expenses incurred by A1 during check period.
CBI Vs Kulwaran Singh 02/2012 56/65FINAL FIGURES 13.0 In view of my foregoing discussion, income, expenditure and acquisition of assets of A1 Kulwaran Singh and his family during the check period is held as under:
A) INCOME 1 Rs. 10,24,713.00 As per Para 9.8 of Judgment 2 Rs. 7,208.23 On account of premium earned against ULIP Total Income = Rs.10, 31,921.00 (Rounded off) (B) EXPENDITURE:
1 Rs. 2,63,672.00 As per Para 11.18 2 Rs. 39,998.00 Premium payment with respect to LIC Policies.
3 Rs. 18,000.00 Premium payment of ULIP
Total Expenditure = Rs. 3,21,670
(C) ASSETS ACQUIRED DURING CHECK PERIOD:
S. No. Particulars Amount in Rs.
1 (i) House hold items in flat No. 8,625/-
166,sector-7, Antop Hill, Mumbai
1 (ii) House hold items in 5/15, IInd 27,200/-
Floor, Park Avenue,
Charmswood Village, Faridabad
2 Cash seized by GRP Jalandhar 15,00,000/-
CBI Vs Kulwaran Singh 02/2012 57/65
on 16.10.98 from Kulwant Kaur
3 EPF A/c no. 1137 of Kulwaran 21,000/-
Singh.
4 Immovable asset by way of 8,46,815/-
payment to PUDA.
Total 24,03,640/-
Income: Rs.10, 31,921.00
Expenditure: Rs. 3,21,670
Assets: Rs. 24,03,640.00
Disproportionate Assets Rs. 16,93,389
13.1 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 applying said principle, I further give concession of Rs. 1,03,092/- and deduct said amount from Rs. 16,94, 389/- and the final figure of disproportionate assets comes as Rs. 15,90,197/- .
SELECTION OF CHECK PERIOD 14.0 There can be no general rule or criterion, valid for all cases, in regard to the choice of the selection of check period. The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf, which are alleged to be so disproportionate. It is for the prosecution to choose what according to it is the period which having regard to the acquisitive activities of the public servant in amassing wealth and characterise and CBI Vs Kulwaran Singh 02/2012 58/65 isolate that period for special scrutiny. Moreover, I.O. has deposed that check period was selected as per promotion of Public Servant-accused in Custom Department. Thus defence is not right when asserting that check period has been arbitrarily selected.
SANCTION OF PROSECUTION AND INVESTIGATION 15.0 Sanction to prosecute public servant has been duly proved. Needless to mention that sanction for prosecution of an accused under the Prevention of Corruption Act is not a mere formality and it has to be accorded after complete satisfaction. Sanction order must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. Simultaneously, it has also to be kept in mind that this provision does not intend that a public servant who is alleged to be guilty should escape the consequences of his criminal act by raising technical plea about invalidity of the sanction. This section safeguards the innocent but does not shield the guilty. Merely, because, a draft sanction was sent to such sanctioning authority, it cannot be automatically inferred that there was no application of mind.
15.1 In the case of DARSHAN LAL VS STATE, CRIMINAL APPEAL NO. 73/2001 (DECIDED ON 31.07.2009), our own Hon'ble High Court has observed that it would be incorrect to conclude that simply because the sanctioning order was a virtual reproduction of the draft sanction, the same would be deemed to have been passed without any application of mind and that there was no necessary concomitant corollary between the two.
15.2 Sanction has been accorded by PW55 Sh. Rajiv Rai who signed sanction order in the capacity of Deputy Secretary and the approval of prosecution had been accorded in the name of President of India and file was accordingly sent to Disciplinary Authority.
CBI Vs Kulwaran Singh 02/2012 59/6515.3 Investigation is also by competent official as per sec 17 of PC Act. FIR Ex PW64/A was registered by Superintendent of Police, CBI and he directed investigation to be carried out by Sh. S.K.Singh, who was in the rank of Inspector. Thus, there is no infraction of sec 17 of PC Act.
ABETMENT BY CO-ACCUSED 16.0 In the case of P. NALLAMMAL VS. STATE 1999 CRI LJ 3967 SC, a question arose before the Apex Court as to whether a non-public servant is liable to be prosecuted along with public servant for the offence under Section 109, I.P.C. read with Section 13(1)(e) of the Act and the answer was in affirmative. Section 3(1)
(b) PC Act encompasses the offences committed in conspiracy with others or by abetment of "any of the offences" punishable under the PC Act. If such conspiracy or abetment of "any of the offences" punishable under the PC Act can be tried "only" by the Special Judge, it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of trial of the offence. If a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the PC Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the Court of a Special Judge having jurisdiction in the matter.
16.1 Here, co-accused of A1 have abetted commission of offence. Mere possession per se is not an offence. It becomes an offence when public servant fails to satisfactorily account for such possession. Here also, immediately after A2 was found in possession of Rs. 15 lacs, a story was manufactured to offer some explanation. This was fabricated to put away A1 from clutches of law. An agreement was created to camouflage the ill gotten money and thereby all co-accused have intentionally aided A1 and have abetted the commission of offence.
CONCLUSION CBI Vs Kulwaran Singh 02/2012 60/65 17.0 Thus, in view of my foregoing discussion, it stands proved that A1 Kulwaran Singh was found in possession of assets disproportionate to his known sources of income. A1 is accordingly held guilty and convicted u/s 13(1)(e) read with sec 13(2) of Prevention of Corruption Act.
17.1 A2 to A8 are also held guilty and convicted u/s 109 IPC read with section 13(1) (e) r.w. sec 13(2) of Prevention of Corruption Act.
17.2 A3 to A8 are also held guilty for forging agreement to sell, a valuable security and convicted u/s 467 IPC.
17.3 A3 fraudulently or dishonestly used such forged agreement as genuine before Income Tax Authorities and is held guilty u/s 471 IPC and convicted thereunder.
17.4 A9 Satish Kumar has already expired and since proceedings against him stand abated, no order of conviction is passed against him.
ANNOUNCED IN OPEN COURT MANOJ JAIN Special Judge (PC Act) (CBI) South District, Saket Courts, New Delhi 08.08.2012 CBI Vs Kulwaran Singh 02/2012 61/65 CBI Vs. Kulwaran Singh & others CC No. 02/2012 09.08.2012 Present: Sh. Jagbir Singh, Ld. PP for CBI All convicts in person Sh. I.D. Vaid, Ld defence counsel for Kulwaran Singh and Kulwant Kaur Sh. Manish Shukla, Ld Counsel for remaining convicts "Corruption and hypocrisy ought not to be inevitable products of democracy, as they undoubtedly are today"
-Mahatma Gandhi
1. Alas!!! These words of Father of Nation still hold good. Corruption has, execrably, become character of our Nation. It has turn into a rolling ball of snow which is gaining monstrous dimension with every spin. There is talk of corruption-free nation. Are we waiting for any miracle to happen? It's time to realize that there is no external magic wand. Inner voice always tells what's right and what's not but people choose wrong path albeit knowingly. Self-awakening is the need of the hour. But if people fail to admit that, then it is high time to inculcate the same in them forcibly to save the country.
2. Corruption by public servants has already touched Nadir. Something is required to be done sooner than later so that India salvages some of its pride. It is possible only when Legislature, Executive and Judiciary act together in combat mode. Laws should be robust. Executive should be fearless and impartial in booking the culprits. And judiciary has to CBI Vs Kulwaran Singh 02/2012 62/65 be swift in delivering justice.
3. Now let me have a very quick recap of the case.
4 Accused Kulwaran Singh had amassed assets disproportionate to known sources of his income. It was matter of coincidence or whether he got some inkling that he was going to be caught, he chose to send his ill-gotten money away from law-enforcing authorities. For any typical Indian wife, her husband is God who can never be wrong. Kulwaran Singh also chose his better half for this bitter job without realizing as to what destiny had in store for him. His wife obeyed him but got caught. Kulwaran, however, did not give in and tried to befool everyone by inventing a story that such money belonged to his close friend Mool Chand Sharma. Mool Chand also obliged him by owning up the same. Now, that's what I call - a close family friend (pun intended). An agreement, ante-dated was brought into existence with bogus characters like sellers, buyer and witnesses. But Truth is bound to rise above falsehood as oil above water. It finally prevailed.
5 Learned Prosecutor has prayed for maximum dose whereas all convicts want clemency. While meting out sentence, gender does play its part so I will be soft on docile Indian wife and seller Santosh Kumari. I will also be conscious of the fact that incident is of 1998 and none of the convicts have any bad antecedents. All convicts are appearing before the court since 2003 and it has been claimed by defence that they have already undergone sufficient agony of trial. Convict Kulwaran Singh has already retired after completion of service. At the same time, though, it also cannot CBI Vs Kulwaran Singh 02/2012 63/65 be forgotten that there was clear attempt to delude law-enforcers.
6 Keeping in mind all the facts and circumstances, aggravating as well as mitigating, I sentence convicts as under:-
a) Convict Kulwaran Singh, for offence u/s 13(1) (e) r.w. sec 13(2) of Prevention of Corruption Act, is sentenced to R.I. for a period of three years and fined Rs. 1 lac in default whereof, he would undergo further S.I. for 4 months.
b) Convict Mool Chand Sharma is sentenced to undergo R.I. for two years for offence u/s 109 IPC read with sec13 (1) (e) r.w. sec 13(2) of Prevention of Corruption Act. He is also burdened with fine of Rs. 50,000/- in default whereof, he would undergo further S.I. for 4 months. For offence u/s 467 IPC, he is sentenced to undergo R.I. for two years and fined Rs. 20,000/- in default whereof, he would undergo further S.I. for 3 months. For offence u/s 471 IPC, he is sentenced to undergo R.I. for two years and fined Rs. 10,000/- in default whereof, he would undergo further S.I. for 2 months.
c) Each of the convicts i.e. Devender Kumar Sharma, Subhash Chand, Harish Kumar Arora and Balwant Rai is sentenced to undergo R.I. for two years for offence u/s 109 IPC read with sec13 (1) (e) r.w. sec 13(2) of Prevention of Corruption Act. They are also imposed fine of Rs. 10,000/- each in default whereof, each of them would undergo further S.I. for 2 months. For offence u/s 467 IPC, each of them is sentenced to undergo R.I. for two years and fined Rs. 10,000/- in default whereof, each would undergo further S.I. for 2 months.CBI Vs Kulwaran Singh 02/2012 64/65
d) Convict Smt. Kulwant Kaur is sentenced to undergo S.I. for one year for offence u/s 109 IPC read with sec13 (1) (e) r.w. sec 13(2) of Prevention of Corruption Act. She is also burdened with fine of Rs.
10,000/- in default whereof, she would undergo further S.I. for one month.
e) Convict Smt. Santosh Kumari is sentenced to undergo S.I. for one year for offence u/s 109 IPC read with sec 13 (1) (e) r.w. sec 13(2) of Prevention of Corruption Act. She is also burdened with fine of Rs. 5,000/- in default whereof, she would undergo further S.I. for one month. For offence u/s 467 IPC, she is sentenced to undergo S.I. for six months and fined Rs. 5,000/- in default whereof, she would undergo further S.I. for one month.
7 All the sentences would run concurrently. Needless to say that all convicts would be entitled to set off, if any.
8 Amount of Rs. 15 lacs is forfeited to State. CBI is directed to take requisite steps in this direction.
9 A copy of judgment and order on sentence be given to the convicts free of cost.
10 Let all the convicts be sent to jail under appropriate warrants.
11 All the convicts have also been made aware about the fact that they have right to file appeal.
12 Ahlmad is directed to paginate and book-mark the file so as to enable digitization of the entire record.
CBI Vs Kulwaran Singh 02/2012 65/6513 File be consigned to record Room.
Announced in the open Court On this 09th August, 2012 (MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CBI Vs Kulwaran Singh 02/2012 66/65