Punjab-Haryana High Court
Rajiv Jain vs State Of Haryana on 19 September, 2012
Crl.A-S-1802-SB-2005 1
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Appeal No. S-1802-SB of 2005 (O&M)
Date of Decision : September 19th , 2012
Rajiv Jain .... Appellant
Versus
State of Haryana
.... Respondent
CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
Present Mr. S.K.Garg Narwana, Senior Advocate,
with Mr. Ravinder Singh Sheokand, Advocate,
for the appellant.
Mr. Sagar Deswal, A. A.G., Haryana,
for the State.
VIJENDER SINGH MALIK, J.
The challenge by way of this appeal, brought by Rajiv Jain, the appellant is to the judgment of his conviction dated 24.09.2005 passed by learned Special Judge, Sonipat vide which he has been held guilty and convicted for an offence punishable under section 13(1)(e) of the Prevention of Corruption Act, 1988 (for short, "the Act") and the order on sentence of the same date vide which the appellant has been sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of ` 5000/- for the aforesaid offence with further rigorous imprisonment for a period of six months in default of payment of fine. Crl.A-S-1802-SB-2005 2
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The brief facts required to appreciate the controversy involved in this appeal are as under:
A complaint received against the appellant, formerly a Press Secretary to former Chief Minister, Haryana alleging misuse of his position and possessing properties disproportionate to his known sources of income in his name and in the names of his near relatives and friends was enquired into by Inspector, C.M. Flying Squad, Haryana, Panchkula. After enquiry, he found the following four allegations, as noticed by learned Special Judge, Sonepat in para No.2 of the judgment, to be true against the appellant:-
"1). He purchased some land near Kundli Barrier from Smt. Suman Virmani and constructed a double storey market having 34 shops on the ground floor and 34 shops on the first floor at the cost of crores of rupees.
2). He purchased built up 10 shops near Piau Maniari in his name and in the name of his friend Dr. Vijay from Swaran Kumar etc. under the garb of purchasing 5 Marlas of land for Rs.40,000/- whereas the price of each shop was not less than Rs. 2.5 to 3.00 lacs.
3). He purchased land measuring 22 Kanals 8 Marlas for a consideration of Rs. 3,36,000/- on 24.12.1998 in the name of his brother Manoj Kumar who was employed as an Accountant in BSF and did not have sufficient funds for the purchase of the land and the actual cost of that land was not less than Rs. 6.5 to 7.00 lacs per acre.Crl.A-S-1802-SB-2005 3
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4). He purchased 81 Kanals 5 Marlas of land for a consideration of Rs. 9,80,000/- plus Rs. 1,77,500/- plus Rs. 1,85,500/- in the name of Mahavir Education Trust and that land was also undervalued."
The enquiry report with the aforesaid conclusions was sent to Police Station, Rai where on the basis of the same, a case by way of FIR No. 119 dated 3.5.2000 was registered under Section 13(1)(e) of the Act. The investigation was taken up by Sh. Hardeep Singh Doon, the then Deputy Superintendent of Police, Headquarters, Sonipat and it was later on handed over to Shri Swaran Singh, the then DSP, Crime Branch, Madhuban, Haryana. During investigation, it was found that Rajiv Jain remained posted as press secretary of the then Chief Minister, Haryana from May 1996 to July, 1999 and during this period, he received a total salary of ` 5,53,955/- as emoluments. He was found to have acquired the following moveable and immovable assets in his own name, in the name of his wife, Kavita Jain and brother Manoj Jain, as are noticed by learned Special Judge, Sonepat in para No. 4 of his judgment:
"(1). He purchased a plot measuring 340 sq. yards at a cost of Rs.
3,57,691/- (which includes the sale price, stamp charges and registration fees) situated near Sales Tax Barrier, Kundli, through registered sale deed No. 4182 dated 29.9.1998. (2). The adjoining plots measuring 330 sq. yards and 343 sq. yards were purchased for Rs. 3,56,123/- and Rs. 3,53,675/- on 16.9.1998 and 8.10.1998 respectively by his friend Dr. Vijay, Ramesh Kuchhal and Ramesh Aggarwal. They Crl.A-S-1802-SB-2005 4 ..
demolished the old construction existing on these plots and constructed a double storey building having 70 shops on the ground and first floors and the cost of these shops was assessed Rs. 22,81,800/- in which the share of Rajiv Jain accused was 1/3rd which comes to Rs. 7,60,600/-. (3). ½ share of plot measuring 80.66 sq. yards situated near Piau Maniari, Sonipat along the G.T. Road on 30.3.1999 at a cost of Rs. 13,657/-.
(4). ½ share of plot of land measuring 53.77 sq. yards situated at the same place on 30.9.1999 at a cost of Rs. 8910/-. (5). The accused alongwith his friend Rakesh Kuchhal constructed five shops on the aforesaid plots situated near Piau Maniari. The cost of those plots was assessed at Rs.2,27,900/-. Since the share of the accused was ½ in those shops, the cost of his share of plots comes to Rs. 1,13,950/-.
(6). The accused purchased a 315 bore rifle on 15.11.1996 for a price of Rs. 25,000/-.
(7). The accused purchased a Maruti Car No. HR-31B-0001 in 1997 for Rs. 1,94,877/-.
(8). The accused purchased land measuring 22 kanals 8 marlas situated in village Tikola through registered sale deed dated 24.12.98 at the cost of Rs. 3,78,501/- in the name of his brother Manoj Jain.
(9). The accused purchased a house situated in Indira Colony, Crl.A-S-1802-SB-2005 5 ..
Sonipat through registered sale deed dated 19.5.97 at the cost of Rs. 1,74,906/- in the name of his wife Smt. Kavita Jain.
(10). Kavita Jain invested Rs. 50,000/- in 1998 in Unit Trust of India for purchase of certificates in the name of her daughter Prachi Jain alias Khawahish.
(11). The accused purchased a colour T.V. BPL mark "BPL" in 1997 for Rs. 25,000/-."
It was further found that if the household expenses of Rajiv Jain during the period of his service as press secretary were taken at 60% of his total salary, his savings could come to ` 2,21,578/-, but he acquired properties of the value of ` 21,02,492/- which is a sum nine times his savings. It was also found that the accused did not submit any declaration of his movable and immovable properties at the time of entry into service and he acquired the aforesaid properties which were disproportionate to his known sources of income. Recording statement of the witnesses and taking the relevant documents on the record, the investigation was completed.
Charge for an offence punishable under section 13(1)(e) of the Act was framed against the appellant to which he pleaded not guilty and claimed trial.
The prosecution had examined 25 witnesses at the trial and proved a number of documents during the same. The appellant was examined thereafter in terms of section 313 Cr.P.C. He admitted having purchased the plot at Kundli at a cost of ` 3,57,691/-, a rifle for ` Crl.A-S-1802-SB-2005 6 ..
25,000/- and half share of two plots near Piau Maniari at a cost of ` 22,567/-. He claimed that units of Unit Trust of India (UTI) for ` 20,000/- in the name his daughter, Prachi were purchased by his father Satpal Jain, who had retired from service and was having regular pension income. He had further stated that units of UTI in a sum of ` 30,000/- were purchased in the name of his daughter, Khawahish and a house was purchased in Indira Colony by his wife, Kavita Jain for a sum of ` 1,74,906/-. He claimed his wife, Kavita Jain to be an income tax payee having independent income. He denied having any concern with the land of village Tikola which had been purchased by his brother, Manoj Kumar in his own name. He has stated that the said land was purchased by his brother from his savings with the help of his father. He denied having constructed any shops in the land purchased at Piau Maniari. According to him, he had purchased the land near Sales Tax Barrier, Kundli having shops and a hall already built thereon. He has added that the Maruti car was given to him at the time of his marriage by his father-in-law, Surender Kumar Jain and was not purchased by him with his own money.
The accused has also added that after graduation, he started working as a commission agent of UTI and earned a sum of ` 13,65,000/- during the period from 1989 to 1996 as commission. He has added that in addition thereto, he had worked as press reporter for many papers and his income from all sources between the years 1985 and 1999 was more than ` 19.00 lacs. According to him, this income was not taken into consideration by investigating officer, who was acting at the Crl.A-S-1802-SB-2005 7 ..
behest of the then Chief Minister, Haryana who wanted him to withdraw his candidature for assembly election in 2000 and when he defied his orders and contested the assembly election from Sonepat constituency as a candidate of the Haryana Vikas Party against the candidate of the then Chief Minister, Haryana, he incurred the wrath of the Chief Minister, who openly declared in a public meeting on 11.2.2000 at Sonepat that if he would come to power, he would put the appellant behind the bars in one case or the other. According to him, as he came to power in the elections, he got him involved in this case. The accused led his defence evidence consisting of statements of 10 witnesses after which, he closed the same.
Hearing learned Public Prosecutor for the State and learned counsel for the defence, learned trial court found the accused to have received ` 5,53,955/- as salary and allowances during the period from May, 1996 to July, 1999 by working as press secretary of the then Chief Minister, Haryana. Learned Special Judge also found the accused to have worked on commission basis for UTI and earned ` 13.65 lacs between the years 1989 and 1996. Learned Special Judge also found the evidence on the record sufficient to prove that the appellant has also earned other money. Learned trial court came to the conclusion that the said money is not proved to have been kept by the accused in some bank and has noticed the status of his account with bank of Maharashtra and Canara Bank where his balance had been practically nil.
Learned trial court has believed the accused to have been gifted the car by his father-in-law. Learned trial court also found no Crl.A-S-1802-SB-2005 8 ..
evidence to be there to prove that the 5 shops shown red in the site plan (Ex. PT/1) had been built upon the land purchased by the accused.
Concluding his discussion on the evidence, learned trial court observed that the accused had purchased a rifle for ` 25,000/-, purchased land at Piau Maniari for ` 22,567/-, purchased land at Kundli for ` 3,57,691/- and had constructed shops thereon at a cost of ` 7,60,600/-. Learned trial court found the total value of these assets to be ` 11,65,858/-. According to learned trial court, there was absolutely no explanation of the amount of ` 7,60,600/- spent by the appellant on construction of shops in the land at Kundli. Learned trial court thus, concluded that this amount of ` 7,60,600/- shall have to be treated as having been possessed by the appellant beyond his known sources of income. Hence, on this count he found the accused to have failed to satisfactorily account for the pecuniary resources of the property which were disproportionate to his known sources of income. Consequently, on this count, the appellant was held guilty and convicted vide judgment dated 24.9.2005 and after giving hearing on quantum of sentence, the sentence as detailed above, has been awarded to the convict vide judgment dated 24.9.2005 itself.
I have heard Mr. S.K.Garg Narwana, learned senior counsel for the appellant assisted by Mr. Ravinder Singh Sheokand, Advocate and Mr. Sagar Deswal, learned Assistant Advocate General, Haryana for the State. I have gone through the record carefully.
Learned senior counsel for the appellant has submitted that there were 12 allegations against the appellant out of whom 11 stood Crl.A-S-1802-SB-2005 9 ..
explained. According to him, one was not found explained by the appellant. He has further submitted that what is punishable under section 13(2) read with section 13(1)(e) of the Act is inability of the accused to satisfactorily explain the pecuniary resources of the property found possessed by him.
Learned senior counsel has admitted that the appellant had been a public servant from May, 1996 to July, 1999. According to him, learned trial court has not considered the income received by the appellant by working on commission basis with U.T.I., wherefrom he earned ` 13.65 lacs about which there is documentary evidence on the record. He has submitted that the learned trial court has only found a sum of ` 7,60,600/- to have been spent on construction of shops on the land purchased at Kundli to have not been accounted for by the appellant. According to him, the first question that would arise in this regard is as to whether the shops had been reconstructed or the building standing on the land purchased was renovated to convert the building into shops.
Learned senior counsel for the appellant has submitted that a case was registered against the appellant by way of FIR No. 29 dated 25.1.1999 at Police Station Rai, District Sonepat under the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 on the allegation that he had raised construction of shops in the notified area without permission of the concerned authority. According to him, by way of Ex. DF, the police submitted cancellation report in the said case under the provisions of section 173 Crl.A-S-1802-SB-2005 10 ..
Cr.P.C. According to him, learned trial court refused to place reliance on this document for no good reasons. According to him, vide this document, the SHO of Police Station, Rai had concluded that the shops were not constructed but were renovated and so, no offence was made out Learned senior counsel has further submitted that Ex. PX is a copy of the sale deed vide which the appellant purchased a piece of land measuring 340 sq. yards from Smt. Suman Virmani (PW-17). According to him, the area purchased bore khasra number and Baljit Singh, SDO P.W.D. (B&R) (PW-14) and O.P.Dhingra, J.E., (PW-15) before inspecting the shops and preparing the report should have got the area demarcated to find out if the alleged shops are on the land belonging to the appellant. According to him, the report which is on the record is not proved to pertain to the property purchased by the appellant because no identification was got made of that land by the two witnesses from some revenue official.
Learned senior counsel for the appellant has further submitted that learned trial court has accepted the statements of Baljit Singh, SDO P.W.D. (B&R) (PW-14) and O.P.Dhingra, J.E., (PW-15) without any discussion as to the reliability of the report. According to him, Suman Virmani, the vendor of the appellant of the land at Kundli has been examined by the prosecution as PW-17 and she has stated that she owned 1,000 sq. yards of land situated at Kundli on which she has constructed shops and a hall on the ground floor and shops at the first floor and she sold the said property vide three sale deeds to the Crl.A-S-1802-SB-2005 11 ..
appellant and others, namely, Rakesh Aggarwal and Dr. Vijay etc. According to him, she was not cross-examined by the State on this part of her statement. According to him, this statement of Suman Virmani goes unchallenged and it proves that there had been shops and a hall on the ground floor and shops on the first floor when the property was purchased by the appellant and that he had renovated the shops only. According to him, if Suman Virmani was making a statement contrary to the case of the prosecution, she could have been prayed to be declared hostile and should have been cross-examined to challenge her on this part of her statement.
Learned senior counsel for the appellant has further submitted that Baljit Singh, SDO (PW-14) and O.P.Dhingra, J.E., (PW-15) visited the site of the aforesaid shops on 28.6.2000 to make a report regarding the cost of its construction. According to him, the shops were got demolished by the State soon thereafter and no opportunity was left with the appellant to get the same examined from some building expert for proving his stand qua the same.
Learned State counsel, on the other hand, has supported the judgment of learned Special Judge. According to him, the plot of land was purchased and the construction standing thereon was demolished by the appellant and the shops were constructed thereon. According to him, learned Special Judge has placed reliance on evidence coming on the record to come to the conclusion that he had spent ` 7,60,600/- on construction of shops on that plot and he could not explain his pecuniary resources for the amount spent on the construction of the shops. He has Crl.A-S-1802-SB-2005 12 ..
submitted that no good reason is given by learned senior counsel for the appellant for holding that the judgment of learned trial court is bad.
Since all the properties listed as having been acquired by the appellant in his name, in the name of his wife, his daughters and his brother stood explained, except the shops constructed on the land purchased at Kundli from Smt. Suman Virmani, the question for determination here would be as to whether the shops examined by Baljit Singh, SDO (PW-14) and O.P.Dhingra, J.E., (PW-15) were constructed afresh or they had been made out on the existing structure by a little remodeling or refurbishing. If a conclusion is arrived on consideration of the evidence on record that the shops are new construction then the question would arise as to what is the amount proved to have been spent in their reconstruction.
Suman Virmani, the person who sold the plot measuring 334 sq.yards to the appellant vide sale deed Ex. PX has appeared as PW-17 and she has stated that on her plot measuring 1000 sq. yards situated at Kundli, which was sold by way of three sale deeds to the appellant and others, she had constructed shops and a hall on the ground floor and shops on the first floor. She had been examined by the prosecution and if she was making a statement contrary to the case of the prosecution, her statement should have been challenged after getting her declared hostile to the prosecution. It was not done by the prosecution and this is the first blow to the case of the prosecution.
Leaving the statement of Suman Virmani (PW-17) aside for a moment, it has to be seen that to prove the case of the prosecution in Crl.A-S-1802-SB-2005 13 ..
this regard, there are statements of Baljit Singh, SDO (PW-14) and O.P.Dhingra, J.E., (PW-15). Learned trial court has not entered upon discussion about the veracity of the statements of these witnesses. There is no word in the judgment showing an attempt on the part of learned trial court to find out if their statements are really reliable. There are a few facts that glaringly appear in the cross-examination of Baljit Singh, SDO (PW-14) which would show that reliance cannot be placed on his statement and report. He has though, denied that old construction was renovated by getting the walls plastered and has volunteered that all the shops were newly constructed, yet he admits that he did not verify the bricks. He has asserted that plaster, flooring and the white wash including paints were newly done. None of these things show that the construction is fresh or old. He has further admitted that he did not even enquire from inhabitants of the shops whether the construction was old or new. He has further admitted that he did not puncture the walls or the roof to ascertain the quality of the bricks and the steel iron used. He also admits that he did not ascertain the age of the steel/iron and bricks. What his statement shows is that he visited the shops and looking at them, he framed his opinion that the construction was new. He did not try to open the plaster to see if the bricks used or the mortar used to join the bricks was fresh or old one. He even did not try to find out the age of iron bars used in the construction.
In this regard, statement of Mr. O.P.Munjal, J.E. (PW-15) is also worth examining. He has admitted that they did not make any assessment regarding the quality of the material used in the construction. Crl.A-S-1802-SB-2005 14
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He also admits that walls were not punctured to ascertain the age of the bricks or steel. He also admits that the shops were having ordinary flooring. However, the rates used by them to prepare the report about costs of construction were for the standard construction.
Even if it is believed that the structures which were there on the plot purchased by the appellant were pulled down and the market was constructed afresh, it was not taken into account that good amount of building material used in the construction of old building would have been reusable. The witnesses have not tried to ascertain if any old material was used in the construction of the shops. Even if the old material is sold, rebate is required to be given in the assessed value of the construction. These circumstances clearly show that the statements of Baljit Singh, SDO (PW-14) and O.P.Dhingra, J.E., (PW-15) and their report Ex. PS are not reliable.
After the two witnesses, Baljit Singh, SDO (PW-14) and O.P.Dhingra, J.E., (PW-15) visited the spot and prepared the report, the building of the shops was got demolished by the State. Learned State counsel does not dispute this fact. Demolition of shops by the State left the appellant defenceless as he had no means to prove that the structure on the plot was old and that some additions, repairs and white wash was done to make out the shops. If the shops would not have been demolished by the State, the appellant could have got the same examined by a building expert who could not only give opinion about the status of the building of the shops but also about the costs of re- construction or repairs of the same.
Crl.A-S-1802-SB-2005 15
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Ex.DF is a copy of report submitted under section 173 Cr.P.C. by the police in the case registered by way of FIR No. 29 dated 25.1.1999 at Police Station Rai, District Sonepat under the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963. It is a public document as defined in section 74 of the Indian Evidence Act. The document has been kept out of consideration by learned Special Judge, Sonepat for two reasons. The first is that the appellant had been a press secretary to the Chief Minister, Haryana and so, he could manage such a report by exercising his influence over the police. The second reason given by him is that the investigating officer is not examined to prove it. The appellant had been press secretary to the then Chief Minister, Haryana from May 1996 and the case was registered on 25.1.1999, the day when he was working as a press secretary. If he was in a position to exercise any influence over the police, the case would not have been registered against him. The report is made by the police official after investigation and it is the State, if it wanted to prove the said report to be wrong, to examine the person making that report. The said document is very much admissible in evidence and it proves that the shops were not reconstructed and were just repaired and made out into shops.
Summing up my above discussion, I hold that the report (Ex. PS) of Baljit Singh, SDO (PW-14) and O.P.Dhingra, J.E., (PW-15) is not a reliable document. The same does not prove that the appellant spent ` 7,60,600/- in constructing his share of the shops on the plot sold by Smt. Suman Virmani to the appellant and others. No other evidence is Crl.A-S-1802-SB-2005 16 ..
there on the record to even prove that the shops were reconstructed and if so, what were the expenses incurred thereon.
Therefore, the conclusion arrived at by learned Special Judge, Sonipat does not stand to judicial scrutiny. Learned trial court has wrongly placed reliance on the statements of the witnesses without examining their veracity. Hence, the finding of conviction recorded by learned Special Judge against the appellant is unfounded. Consequently, the prosecution is found to have failed to bring home the guilt of the appellant with regard to any of the items mentioned above. The appeal is, consequently, allowed and setting aside the judgment of his conviction and order on sentence, the appellant is acquitted of the charge.
(VIJENDER SINGH MALIK) JUDGE September 19th , 2012 som