Delhi District Court
Cbi No.11/09 Cbi vs . Tribhuwan Singh on 14 August, 2013
IN THE COURT OF SH.R P PANDEY: SPECIAL JUDGE (CBI)01
ROHINI COURTS:DELHI
RC5(A)/2003/CBI/ACUII/CBI/N.Delhi
U/s 109 IPC and Sec.12(2) R/W 13(1)(e) of PC Act, 1988
CBI CASE No.11/09
CENTRAL BUREAU OF INVESTIGATION, NEW DELHI
VS
TRIBHUWAN SINGH S/O LATE SH.MAHAVEER SINGH
R/OKC165, KAVI NAGAR, GHAZIABAD
UP
... ACCUSED
Date of institution 01.07.05
Date on which case
Reserved for order 20.07.13
Date of Judgment 13.08.13
CASE ID02404R1286332005
JUDGMENT:
1.0 The instant case bearing RC No.ACII/2003/A0005 u/s CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.1 of 177 13(2) read with Section 13(1)(e) of Prevention of Corruption Act, 1988 (in short PC Act) was registered with Central Bureau of Investigation (CBI), New Delhi against accused/Tribhuwan Singh with the allegations that accused, the then Chief Architect, New Delhi Municipal Council (NDMC), New Delhi, while working in different capacities during the period 01.04.94 to 10.07.03 abused his official position as public servant and amassed assets disproportionate to his known sources of income to the tune of Rs.31,69,010.98, either in his own name or in the name of his family members, which he could not satisfactorily account for. 1.1 This case was mainly an off shoot of searches conducted in another case registered as RC No.AC II/2003/A0003 (hereinafter referred as 'Centre Point case').
CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.2 of 177 During searches in Centre Point case, a number of movable and immovable assets including cash amounting to Rs.21,60,000/, was seized from the house and lockers of accused and his wife/Vinita Singh. The sanction for prosecution of accused/Tribhuwan Singh dated 14.06.05 was obtained by CBI and filed along with the charge sheet.
1.2 Investigation disclosed that accused/Tribhuwan Singh has a son, namely, Anant Singh, who is working with M/s Wipro Spectramind, Okhla, New Delhi was married on 24.11.01 but later on his marriage ended in divorce. His daughter, namely, Surbhi is married and since 1997 she is residing in USA with her husband.
1.3 Pursuant to order on charge dated 10.03.08, the
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charge against accused/Tribhuwan Singh were framed on 13.03.08 u/s 13(2) read with Section 13(1)(e) of PC Act, 1988, to the effect that w.e.f. 01.01.99 to 10.07.03, he abused his official position and as on 10.07.03, he was found in possession of disproportionate assets to the extent of Rs.32,08,598.19, which figure was arrived at after giving benefit of Rs.54,000/ towards additional assets for precheck period and Rs.12,602/ towards the calculation mistake as admitted by the prosecution. Accused pleaded not guilty and claimed trial.
1.4 To prove the case prosecution examined 64 witnesses and closed PE. The entire incriminating evidence was put to the accused u/s 313 Cr.PC which has been denied by him and he has stated that he has been falsely implicated in this case. In his CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.4 of 177 defence, accused examined 9 witnesses and closed DE. 1.5 I have heard Sh.N. P. Srivastava, Ld.Public Prosecutor for CBI and Sh.Vivek Sood, ld.counsel for accused and perused the records along with written submissions filed by the parties. SANCTION FOR PROSECUTION OF ACCUSED 2.0 The order sanctioning the prosecution of accused/Tribhuwan Singh u/s 19(1)(b) of PC Act has been proved by CBI as Ex.PW21/A. PW21/Sh.J S Mishra was examined by prosecution to prove a valid sanction order. He was thoroughly crossexamined by ld.defense counsel in respect of sanction but nothing adverse has come out in his crossexamination.
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2.1 However, ld.defence counsel has submitted that the
sanction is bad in law as it has been accorded without due application of mind and without examining the notification dated 15.06.89 of the Government of Uttar Pradesh u/s 6 of DSPE Act and notification dated 06.07.89 u/s 5 of the DSPE Act of the Government of India and, therefore, the trial is bad in law. He has submitted that the CBI has not obtained permission of State Government u/s 5 or 6 of DSPE Act as there was a complete bar u/s 5 of the DSPE Act to exercise jurisdiction in State of Uttar Pradesh with reference to State Government employees. Ld.counsel for accused has quoted above two notifications in his written submissions in support of his claim that prosecution of accused/Tribhuwan Singh was illegal.
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2.2 On the other hand, ld.Public Prosecutor has submitted
that although the accused was a public servant of an undertaking of the Government of Uttar Pradesh but at the relevant time when the case was registered against him and investigation was taken up, he was posted as Chief Architect in New Delhi Municipal Council on deputation and hence he was under the control of Central Government at that time and not under the control of State Government. He has thus submitted that the notification/circular of the Government of Uttar Pradesh as relied upon by the ld.defence counsel was not applicable to him as he was not working under the control of Government of Uttar Pradesh at that time.
2.3 Sanction order for prosecution of accused/Tribhuwan
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Singh, Ex.PW21/A reflects the due application of mind by the sanctioning authority which is supported by testimony of PW21/Sh.J S Mishra, the then Secretary, Housing and Urban Planning, Government of Uttar Pradesh, Lucknow. 2.4 Accordingly, I do not find any deficiency in the sanction order for prosecution of accused/Tribhuwan Singh u/s 19(1)(b) of the PC Act.
2.5 It is worthwhile to note that while this case was reserved for orders, after hearing the final arguments, an application was moved by ld.defense counsel for bringing on record the fact that while passing the judgment in 'Centre Point' case being CC No.27/11, the ld.Spl.Judge CBI, Dwarka Courts CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.8 of 177 held that the proceedings qua accused/Tribhuwan Singh are 'void ab initio' for want of valid sanction and for want of compliance of Section 6 of DSPE Act.
2.6 The sanction order for prosecution of accused in this case is a separate order which had to be looked into separately, independent of observations of ld.Spl.Judge in 'Centre Point' case, if any. I have already opined that the sanction for prosecution of accused was a valid sanction, as discussed above. Now, let me delve into the provisions of Section 6 of DSPE Act which lays down as under: "Consent of Statement Government to exercise of powers and jurisdiction : Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.9 of 177 Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory of railway area, without the consent of the Government of that State." 2.7 Thus, it is clear from bare reading of the provisions that Sec.6 of DSPE Act, that the CBI can not exercise the powers and jurisdiction 'in any area in a State' without the consent of the Government of that State. Besides being on deputation to Delhi Urban Arts Commission (DUAC) from April, 1998 to April, 2001, accused was posted as Chief Architect, NDMC, New Delhi since October, 2002 to March, 2004. Thus, when the search was conducted at his official residence in Delhi on 10.07.03 and subsequently when the FIR of this case was registered on 02.12.03 and investigation taken up, accused was serving with an instrumentality of the Central Government, hence there was no CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.10 of 177 violation of any of the provisions of DSPE Act as CBI did not exercise its power and jurisdiction in any area of State of UP in this case. It is fairly settled position of law that an officer, who is working with the affairs of concerned Government at the relevant time in connection with affairs of the respective Government, will be considered to be an employee of the said Government for the purpose of registration of the case (Rakesh Mittal Vs. State of Uttrakhand, SLP (Crl.) No.8074/2008) Further, as observed by Hon'ble High Court of Delhi in Dr.R R Kishore Vs. CBI,Criminal Review P.No.366/2006, any illegality in the investigation has to be brought to the notice of the court at initial stage of trial. Although I have not found any illegality in the investigation of this case but even otherwise it is no valid defence to point out, for the first time at the stage of final arguments, that there was some illegality in CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.11 of 177 the investigation of the case 3.0 OTHER PRELIMINARY OBJECTIONS OF ACCUSED 3.1 The first objection of the ld.defence counsel is that the CBI has illegally clubbed the income, expenditure and properties of accused with those of his wife/Vinita Singh although there was no basis for doing so and, therefore, he has urged that income, expenditure and properties of Smt.Vinita Singh be segregated from those of accused/Tribhuwan Singh.
3.2 He has also drawn attention of the court towards the statement of PW26/Rajiv Kumar Singh, Income Tax Officer, to submit that he has not stated that clubbing of income of accused and his deceased wife was ever done by the income tax CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.12 of 177 department.
3.3 He has also submitted that PW47/Satish Kumar Bajaj, who was Tax Consultant of accused and his deceased wife, has also stated that no clubbing of income of accused and his wife was ever done by the income tax department. 3.4 He has then drawn attention of the court towards statement of PW64/D S Dagar, who is IO Of the case, who has stated during his crossexamination that he is not aware whether incomes of accused and his wife were ever clubbed by the income tax authorities. The witness had, however, volunteered that the income tax department vide letter, Ex.PW64/Q (D59) had informed CBI that the I T Returns of accused and his wife for CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.13 of 177 the years 199798 to 200203 were not traceable in their records and thereafter CBI had written to the Income Tax Commissioner vide Ex.PW64/R (D60) to consider reopening of the assessment of the I T Returns of accused and his wife for the earlier years. He has admitted in his crossexamination that 'it is correct that in the charge sheet he had first stated various figures separately of the accused and his wife and in calculation part he had clubbed the figures to arrive at the disproportionate assets amount of accused/Tribhuwan Singh.' 3.5 It has been submitted by the ld.defence counsel that accused was a public servant while his wife was an architect and both were filing their income tax returns independently and prosecution has not adduced any evidence to the effect that the CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.14 of 177 financial figures of accused and his wife were intricately connected with each other in such a manner that it was not possible to distinguish the same. In this respect, it suffice to observe and hold that filing of separate income tax returns by accused and his wife for their respective incomes does not lead to any inference that in calculating the disproportionate assets of accused, assets held in the name of his wife can not be considered. Rather, it was obvious that accused being salaried person and his wife being a professional architect and they having no joint business, will be filing their separate ITRs and thus, their incomes could not be clubbed together for tax purposes.
3.6 Ld.defence counsel has submitted that it is a matter of
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record that the property bearing no.A45, Sector51, Noida and the cost of construction were in the ratio of 50:50 between accused and his wife.
3.7 From the charge sheet, it is clear that although Smt.Vinita Singh was working as architect under the name and style of M/s Rachna Architect and Engineers and operating from their family residence i.e. KC165, Kavi Nagar, Ghaziabad and filing her separate income tax returns but cash amounts in the sum of Rs.2.27 lacs from their house at H.No.10, Satya Niketan, Chanakya Puri, New Delhi (official accommodation); Rs.3 lacs from their locker no.9 maintained with State Bank of Bikaner & Jaipur (SBBJ), Noida, in the joint names of accused/Tribhuwan Singh and his wife and cash amount of Rs.16.33 lacs from the CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.16 of 177 locker no.294 maintained with Syndicate Bank, Mayur Vihar, New Delhi in the names of Smt.Vinita Singh and their maid/Kalindi (total Rs.21.60 lacs) were recovered during the search and seizure operations carried out by CBI. Investigation and evidence on record also discloses that name of Smt.Vinita Singh was added as coowner of NOIDA plot, on which a house was constructed, subsequent to the payment of entire consideration by accused/Tribhuwan Singh and, therefore, under these facts & circumstances of the case, CBI has alleged that Smt.Vinita Singh (now deceased) had abetted commission of the alleged offence making herself liable u/s 109 IPC, in as much as she had, inter alia, concealed the substantial portion of disproportionate assets of accused in her bank lockers, besides making a false claim about ownership thereof but since she had expired on 05.11.03 i.e CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.17 of 177 before registration of FIR in instant case, therefore, criminal case qua her stood abated, hence her name is not figuring as accused person.
3.8 Thus, the reasons for clubbing of income, expenditure and assets of accused/Tribhuwan Singh with those of his wife are very much clear from the charge sheet and admitted recoveries. Merely because they both used to file separate income tax returns in respect of their respective incomes, it does not give rise to an inference as suggested by ld.defence counsel. 3.9 It is seen from the income tax returns and balance sheets of Smt.Vinita Singh brought on record that she was solely running the affairs of her firm without employing any worker in as CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.18 of 177 much as her balance sheets do not show any payments towards salaries and wages.
3.10 It is also clear from statement of DW1/Sadhna Sood, Chief Executive Officer of Noida Medicare Centre (in short NMC) that Smt.Vinita Singh was suffering from cancer and during her treatment she under went a surgery which was followed by 6 sessions of chemotherapy and after this treatment, sometimes in January, 2003, she suffered with Hepatitis 'C' and was under
constant treatment with NMC. As per medical documents of Smt.Vinita Singh proved by her (DW1) as Ex.DW1/PA (Colly) and Ex.DW1/PB (Colly), Smt.Vinita Singh was admitted in the hospital on 28.06.02; a modified radical mastectomy was done on 01.07.02 and subsequently she had undergone 6 sessions of CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.19 of 177 chemotherapy, first of which was done on 20.07.02. 3.11 Thus, it is clear that Smt.Vinita Singh was suffering from cancer and Hepatitis 'C' and hence it can not be assumed that she could work for gain during this period. Yet the IO has taken a lenient view by assuming her income as suggested in her income tax returns and balance sheets for the check period despite the fact that the ITRs with her balance sheet/financial statements were prepared and filed for years 200203 and 200304 much after the date of search i.e. 10.07.03 and that he did not find any bill book or accounts books maintained by Smt.Vinita Singh in routine course of her business to suggest that she was doing any real business (Also see discussion in para 7.3, infra).
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3.12 The ld.defense counsel has relied upon judgments
cited as (2007) 4 SCC 380 and (2013) 2 SCC 1, to draw a parity between Smt.Vinita Singh with case of Mrs.Dimple Yadav, but on factual matrix both the cases are entirely different and hence no inference can be drawn which may favour accused in this case.
4. 0 ASSETS AT THE BEGINNING OF THE CHECK PERIOD
4.1.0 - IMMOVABLE PROPERTIES OF ACCUSED AND HIS WIFE rd Accused and his wife were in the possession of 1/3 portion of their ancestral house no. KC165, Kavi Nagar, Ghaziabad and a plot of land bearing No.A45, Sec.51, NOIDA jointly in their name acquired for Rs.4,25,250/. The ld.defence CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.21 of 177 counsel has sought to apportion this amount in ratio of 50:50 between accused and his deceased wife.
4.1.1 The payment of amount of Rs.4,25,250/ has been proved by PW14/Jai Parkash, Dy.GM of NOIDA Authority. He has proved the respective file of NOIDA Authority as Ex.PW14/A (D181) containing all the documents including allotment letter dated 27.09.94, Ex.PW14/A2 issued to accused/Tribhuwan Singh demanding balance payment of Rs.3,75,000/ and lease rent of Rs.46,200/. He proved letter of accused dated 06.03.95 as Ex.PW14/A3, vide which he had requested for inclusion of name of his wife/Vinita Singh as allottee which was allowed vide Ex.PW14/A4. Lease deed executed in respect of the said plot is proved as Ex.PW14/A5 and it is stated that as per the lease CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.22 of 177 deed an amount of Rs.4,25,250/ was paid to Noida Authority before execution of lease deed which included the cost of plot and premium. He was not crossexamined by the accused despite opportunity. Thus, it is clear from statement of PW14 and documents proved by him that entire consideration for acquisition of the said plot of land was paid by accused/Tribhuwan Singh and not by his wife whose name was simply added as coowner in the lease deed after all payments were made by accused.
4.1.2 Thus, there is no justifiable reason to claim that half of the consideration amount paid for the acquisition of plot should be separated to the share of Smt.Vinita Singh on account of the lease deed standing in the joint names of accused/Tribhuwan CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.23 of 177 Singh and his wife.
4.2.0 MOVABLE ASSETS HELD BY ACCUSED/TRIBHUWAN SINGH IN HIS OWN NAME 4.2.1 As per the charge sheet, it has been alleged that at the beginning of check period i.e. 01.01.99, accused/Tribuwan Singh held total movable assets of Rs.10,01,991.55 in his own name, which were as under: Sl.No. Description Total Value (Rs.)
01. Credit Balance in A/C No.8018 (Old No.) 35744 (New No.) 55,969.12 in Vysya Bank, Navyug Market, GZB
02. Credit Balance in A/C No.791 in SBBJ, Navyug Market, 3,02,361.08 Ghaziabad
03. Credit Balance in A/C No.1971/12 in SBI, Navyug Market, 56,482.00 Ghaziabad
04. Credit Balance in A/C No.4862 in Indian Overseas Bank, 1,14,346.05 Sector37, Noida
05. Credit Balance in A/C No.900002 (PPF) in SBBJ, Noida 31,760.00
06. Credit Balance in A/C No.93 in Nainital Bank Ltd., 1,38,080.00 Ghaziabad
07. Total amount of items mentioned in inventory procured 1,76,850.00 before 1999 CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.24 of 177
08. Total Cost of shares/debentures 58,803.30
09. Premium paid in LIC Policy No.250345247 67,340.00 Total 10,01,991.55 4.2.2 Now let us see as to what extent these items have been proved in the trial.
4.3.1 Item No.01 There was Credit Balance of Rs.55,969.12 in A/C No.8018 (Old No.) = 35744 (New No.) in Vysya Bank, Navyug Market, Ghaziabad. In this respect, accused has admitted the statement of account sent by ING Vysya Bank to SP, CBI, which is already exhibited PA2 (D45) enclosing with it the statement of account already Ex.PA3. The statement of account admitted by the accused show that there was balance in the said account of Rs.55,969.12 as on 01.01.99.
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4.3.2 But the ld.defence counsel has submitted that since
this was the CPF account of accused , therefore, the amount should not be taken as assets of accused as at the beginning of the check period. It has been submitted by ld.defence counsel that CPF account was opened by then employer of accused/Tribhuwan Singh i.e. Ghaziabad Development Authority (GDA) in which the contribution was made by employee @ 6.25% of his salary and the same proportion was contributed by his employer and since the salary received by accused/Tribhuwan Singh was exclusive of aforesaid amount, therefore, only withdrawal amount from said CPF account can be taken as income of accused.
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4.3.3 He has submitted that like any other CPF/GPF
account, the accused had no access to the proceeds of the account except for the amounts of withdrawal which were permitted by his employer. He has, thus urged that the balance in the account at the beginning or at the end of check period be deleted from the calculations.
4.3.4 He has drawn attention of the court towards the statement of PW16/Santosh Kumar Kaushik, who has proved his letter/certificate as Ex.PW16/DA. He has stated that as per Uttar Pradesh Development Authorities Centralized Service Rules, 1985, the contribution of CPF was 6.25% of basic pay, on behalf of the Government and same percentage on behalf of employee on the basis of Rule 36.
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4.3.5 During his reexamination by ld.Public Prosecutor, he
stated that he was aware about the sanction granted for final withdrawal by accused/Tribhuwan Singh to the tune of Rs.2.25 lacs from his CPF account but he was not aware whether it was actually withdrawn from the bank.
4.3.6 During his crossexamination by ld.defence counsel, he stated that the numbers of pay orders, vide which the Tribhuwan Singh had received the withdrawal of the said amount of Rs.2.25 lacs were mentioned in his letter. 4.3.7 Thus, it is clear from record that income from salary of accused/Tribhuwan Singh do not include his and his employer's CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.28 of 177 contributions towards CPF, hence the CPF account maintained by accused/Tribhuwan Singh through his employer can not be taken as an ordinary bank account where one is permitted to deposit and withdrawal as per his choice. Hence, ld.defence counsel is right in the way that the balance in the CPF Account of accused/Tribhuwan Singh as at the beginning of the check period with A/C No.8018 (old) = 35744 (New) in ING Vysya Bank, Navyug Market, Ghaziabad to the tune of Rs.55,969.12, can not form the part of his movable assets at the beginning of the check period. On the same analogy, an amount of Rs.28,807.44 available in his CPF account with ING Vysya Bank, Navyug Market, Ghaziabad at the end of check period, which amount is part of the deposits and bank balances of accused/Tribhuwan Singh shown at item no.4 of 'movable assets held by accused at CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.29 of 177 the end of the check period' mentioned at page no.5 of the charge sheet (D45, Ex.PA3), has also to be excluded from the assets held by him as at the end of check period. 4.3.8 By the same analogy and as submitted by ld.defence counsel, interest accrued in this CPF account maintained at ING Vysya Bank and Nainital Bank have to be excluded to the total tune of Rs.19,251.32. Thus income from interest of accused/Tribhuwan Singh as accrued in SB A/C No.8018 at ING Vysya Bank, Navyug Market, Ghaziabad, Ex.PA3 (D45) for Rs. 4,958.32 and SB A/C No.93, MarkX (D43) of Nainital Bank for Rs.14,293/, will also stand excluded from income of accused (as shown in item no.F(i) and F(viii) shown as income of accused/Tribhuwan Singh in check period as per charge sheet).
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4.3.9 Thus, as rightly submitted by ld.defence counsel only
amount of Rs.2,25,000/ lacs, which was withdrawn by accused with permission from his employer will be taken as his income during the check period (see para 12.1.2 infra). 4.4 Item No.02 The credit balance in A/C No.791 maintained with SBBJ, Navyug Market, Ghaziabad in the sum of Rs. 3,02,361/ in the name of accused/Tribhuwan Singh is also admitted vide document marked as Ex.P1/11 (D33). The same has also been separately proved as Ex.PW48/A, Ex.PW48/B & Ex.PW48/C. This figure has not been disputed by the parties. 4.5 Item No.03 The credit balance in A/C No.1971/12 in SBI, CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.31 of 177 Navyug Market, Ghaziabad at the beginning of the check period is shown as Rs.56,482/ which has been proved vide Ex.PW4/J (D35). Same is also not disputed.
4.6 Item No.4 The credit balance in A/C No.4862 maintained with Indian Overseas Bank, Sector37, Noida in the sum of Rs. 1,14,346.05 is admitted by accused vide Ex.P1/15 (D41). 4.7 Item No.05 - This shows a credit balance in A/C No.900002 (PPF in SBBJ, Noida). The CBI has taken balance of Rs.31,760/ as credit balance in the said PPF account held in the name of accused/Tribhuwan Singh as at the beginning of the check period. The statement of account has been proved by PW4/N K Kaushik, vide Ex.PW4/J (D35) which show that it is continuation CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.32 of 177 of PPF A/C earlier existing in SBI, Ghaziabad as A/C No.1971/12, which was closed there on 10.05.2000 and its balance was transferred to SBBJ, Noida where it assumed new A/C number as 900002. Hence, in this respect, I am in agreement with submissions of ld.defence counsel that there could not be any credit balance in this account at the beginning of the check period as this account did not exist on 01.01.99. Hence amount of Rs. 31,760/ is liable to be deleted while calculating assets of accused at the beginning of the check period.
4.8 Item No.06 - As already deliberated and discussed while considering item no.1 above that the balances of CPF account of accused has to be excluded, accordingly as agitated by ld.defence counsel the credit balance in A/C No.93 of Nainital CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.33 of 177 Bank Limited, Ghaziabad (which is also CPF account) in the sum of Rs.1,38,080/ shown in item no.6 of the movable assets held by accused/Tribhuwan Singh at the beginning of the check period, has to be excluded.
4.9.1 Item No.07 - An amount of Rs.1,76,850/ has been shown by CBI as the value of assets available in the house of accused/Tribhuwan Singh as at the beginning of the check period. With this item, we will have to consider the item no.5 mentioned in the charge sheet under the head of movable assets held by accused/Tribhuwan Singh as at the end of check period which amount is mentioned as Rs.6,06,430/.
4.9.2 Ld.defence counsel has submitted that there is no
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legally admissible evidence on record to prove the inventory prepared by CBI in respect of items found in the house of accused/Tribhuwan Singh at the time of search. 4.9.3 The search list prepared by CBI in respect of search conducted at the official residence of accused/Tribhuwan Singh on 10.07.03 is Ex.PW8/A (D4) and the inventory of articles found in his house is Ex.PW8/B (D5). Ld.defence counsel has relied upon the judgment of N Ramakrishnaiah (dead) through LRs Vs. State of A P, 2009 CRI.LJ 1767 to challenge the admissibility of the inventory. He has drawn attention of the court towards the following observations of Hon'ble Supreme Court in N Ramakrishnaiah (supra) : CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.35 of 177 "10. The movables covered are those which were listed in the inventory made at the time of search room wise. The details contained are the year of acquisition, the value of each article and other particulars given by the accused himself. The details were recorded by PW36. Further, PW52 also corroborated the evidence by deposing to similar effect. Though suggestion was made that the accused did not give the detail to PW36, significantly PW52 was not crossexamined in this regard. High Court noticed that it was not specified by the accused as to in respect of which particular items there was overvaluation. Significantly, signature of the accused is there in the inventory. The conclusions of the High Court to reject contentions of the accused do not suffer any infirmity to warrant interference." 4.9.4 It is interesting to note that ld.Public Prosecutor for CBI has also referred and relied upon the same judgment, particularly the same observation of the Hon'ble Supreme Court to submit that the inventory prepared by CBI, in consultation with accused and his wife, should be taken as correct basis for CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.36 of 177 valuating the assets found in the house of accused/Tribhuwan Singh.
4.9.5 Ld.defence counsel has submitted that inventory, Ex.PW8/B has not been signed by accused although he had signed the search list, Ex.PW8/A for having received a copy of the search list at the end of the search operations. 4.9.6 It is worthwhile to mention that in the search list, Ex.PW8/A, it is mentioned that the inventory of the articles found in the house was also prepared separately. In the inventory, Ex.PW8/B, it is specifically mentioned at point 'X' that "value, year of acquisition, mode of acquisition, price of all aforesaid items are recorded as per the information provided by CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.37 of 177 accused/Tribhuwan Singh and his wife at the spot." 4.9.7 Ld.Public Prosecutor has pointed out that PW8/R Surendran Nair, who was a witness to the search proceedings, has proved the search list, Ex.PW8/A and inventory, Ex.PW8/B. 4.9.8 When PW8 was examined, he specifically deposed that when search was conducted by CBI, the person whose house was searched was present there. He clearly stated that the year of acquisition and value of the articles found in the premises was written after taking the same from occupier of the premises, who was present at the time of search. He also identified accused present before him as occupier of the house. Even, the counsel for accused himself had suggested to PW8 CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.38 of 177 that on the date and time of search and seizure, accused/Tribhuwan Singh and his wife/Vinita Singh were present there.
4.9.9 PW8 stated that accused/Tribhuwan Singh had disclosed about the year of acquisition and the value of items mentioned in the inventory and search memo. He affirmed in his cross examination that the inventory of the articles was prepared in his presence and thereafter he had signed the same (although only seizure memo is signed by accused and not the inventory). To a specific question, he had replied that the inventory was prepared in presence of accused/Tribhuwan Singh and his wife but he did not exactly remember who was replying about mode, year of acquisition and value but both were sitting together. He CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.39 of 177 again said that both were replying, sometimes Tribhuwan Singh was replying and sometimes his wife was replying. 4.9.10 It was not suggested to this witness that neither accused/Tribhuwan Singh nor his wife disclosed about the mode,value and year of acquisition of the assets mentioned in the inventory.
4.9.11 Thus, it is apparent from testimony of PW8, which was almost undisputed by accused that the inventory was prepared by search team in consultation with him and his wife as regards the mode, value and year of acquisition of the properties mentioned in the inventory.
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4.9.12 The careful perusal of the inventory, Ex.PW8/B also
shows that it has been prepared in a very fair manner, thus leaving no doubt in the mind of the court that CBI had acted fairly in preparing the same. The inventory comprises of the value of movable assets at the beginning of check period as Rs.1,76,850/, the benefit of which has been given to accused, which is not disputed by him. The difference between the value at the end of check period (Rs.6,06,430/) and the value at the beginning of check period (Rs.1,76,850/) comes to Rs.4,29,580/, out of which value of Zen Car owned by accused/Tribhuwan Singh is given as Rs.2,94,000/ which is also not disputed. Thus, the value of his movable assets acquired during the check period other than Zen Car comes to Rs.1,35,580/ only, which per se is reasonable.
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4.9.13 Accordingly in view of above findings of fact, I hold
that amounts mentioned in charge sheet as item no.7 of the movable assets held by accused/Tribhuwan Singh at the beginning of the check period and as item no.5 of the movable assets at the end of check period stand proved beyond any reasonable doubt.
4.10.1 Item No.08 - The total cost of shares and debentures held by accused at the beginning of the check period is Rs. 58,803.03. The amount has been proved by examining PW9/Amit Malhotra and PW20/Col.K P Singh. The transaction statement in respect of shares held by accused and his wife has been proved by PW9 vide Ex.PW9/A1 to A8, handed over to CBI vide memo, Ex.PW9 (D74 to D82).
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4.10.2 PW20/Col.K P Singh has also proved the ledger
maintained by him in regular course of business as Ex.PW20/A, on which at page no.196 the transaction in respect of Smt.Vinita Singh and at page no.197, the transaction in respect of accused/Tribhuwan Singh are entered. He deposed that during the period 06.07.99 to 29.03.2000, Smt.Vinita Singh had purchased shares amounting to Rs.2,06,792.60 and Tribhuwan Singh had purchased shares amounting to Rs.72,488/. He also proved that during this period Smt.Vinita Singh had sold shares in the sum of Rs.3,42,198.25 and Tribhuwan Singh had sold shares worth Rs.1,20,020/, the details of which are mentioned in the ledger which is Ex.PW20/B & C respectively. The amount of shares held by accused/Tribhuwan Singh in his name for Rs.
CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.43 of 177 58,803/ is also not disputed by him, accordingly the same is taken as proved.
4.11.1 Item No.09 - As against the paid up amount of Rs.67,340/ in respect of LIC Policy No.250345247, it has been submitted by ld.defence counsel that in fact the paid up amount at the beginning of the check period was Rs.60,606/ and not Rs. 67,340/ as IO has wrongly calculated the amount for 10 premiums whereas it should be for 9 premiums. 4.11.2 The position has been accepted by ld.Public Prosecutor for CBI during the arguments and the amount has been proved vide admitted document, Ex.P1/51 (D120) and thus the amount paid towards life insurance premium prior to check CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.44 of 177 period is proved as Rs.60,606/ instead of Rs.67,340/. 4.12 ADDITIONAL ASSETS AT THE BEGINNING OF CHECK PERIOD:
4.12.1 In addition to above 9 items, the ld.defence counsel has agitated that an amount of Rs.54,000/ was not considered by the CBI which was already invested by accused/Tribhuwan Singh in ULIP, as at the beginning of the check period, in respect of which the document is Ex.PW7/A (D174). He also pointed out that in the order of charge, the court has already given benefit of Rs.54,000/ to the accused on admission made by CBI. 4.12.2 Ld.Public Prosecutor for CBI has conceded that the mistake was accepted by CBI and this amount was allowed to be CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.45 of 177 added to the assets of accused/Tribhuwan Singh at the beginning of the check period as confirmed by PW7/Nawab Singh and duly corroborated vide PW7/A (D174).
4.13 Thus, as discussed above, the value of movable assets held by accused/Tribhuwan Singh in his own name at the beginning of check period was Rs.8,23,448.43 (as against Rs.
10,01,991/ mentioned in charge sheet), as under: Sl.No. Description Total Value (Rs.)
01. Nil Nil
02. Credit Balance in A/C No.791 in SBBJ, Navyug Market, 3,02,361.08 Ghaziabad
03. Credit Balance in A/C No.1971/12 in SBI, Navyug Market, 56,482.00 Ghaziabad
04. Credit Balance in A/C No.4862 in Indian Overseas Bank, 1,14,346.05 Sector37, Noida
05. Nil Nil
06. Nil Nil
07. Total amount of items mentioned in inventory procured before 1,76,850.00 1999 CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.46 of 177
08. Total Cost of shares/debentures 58,803.30
09. Premium paid in LIC Policy No.250345247 60,606.00
10. Additional - Investments in ULIP 54,000.00 Total 8,23,448.43 5.0 MOVABLE ASSETS OF SMT.VINITA SINGH AT THE BEGINNING OF CHECK PERIOD 5.1.1 The CBI has taken the value of movable assets of Smt.Vinita Singh at the beginning of check period at Rs. 7,44,662.86p. as per the details made available to CBI by Income Tax Office, Ward No.2 (1) Ghaziabad based on the details as contained in IT returns of Smt.Vinita Singh for years 199899 and 19992000. The figures of different items of movable assets of Smt.Vinita Singh have been taken on the basis of documents proved by PW.26/Sh.R.K.SinghIncome Tax Officer as Ex.PW. 26/B5 (D58).
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5.1.2 It has been submitted by Ld. defence counsel that
although accused is not disputing the contents of the documents but the CBI should have taken the total figure of movable assets at Rs.9,30,406.86 instead of Rs.7,44,662.86. 5.1.3 On the other hand, ld.Public Prosecutor has submitted that Rs.1,85,744/ as value of Zen Car bearing registration no.UP14C3772 has been excluded in the list of movable assets as the said car was in fact already sold in year 2002 and hence not available on the date on which the CBI had conducted search operation at the residence of accused i.e. 10.07.03 (which is also the end of the check period). He has further submitted that the car was purchased by Smt.Vinita Singh before check period, by CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.48 of 177 raising a loan from Anangram Finance which was repaid by her but such repayment has also not been deducted from her earnings from profession or included in her expenditure, hence there is no point in submission of ld.defence counsel for adding the cost price of the said car of Smt.Vinita Singh in the list of her movable assets at the beginning of the check period. 5.1.4 Ld. Defence counsel has drawn attention of the court towards Ex.PW.47/T.2 to submit that as on 31.03.99 it was shown that Smt.Vinita Singh was having a Maruti Zen Car whose depreciated value at the end of previous financial year (as on 31.03.08) was Rs.1,85,744/. He has also drawn attention of the court towards the statement of PW.26 in his cross examination where he has stated that total movable assets of Smt.Vinita Singh CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.49 of 177 as on 01.01.99 as apparent from Ex.PW.26/B.5, is Rs. 9,30,406.86. On the strength of this evidence, ld. defence counsel has submitted that in fact the cost price of the car should have been added to the value of movable assets of Smt.Vinita Singh as at the beginning of the check period. 5.1.5 It is worthwhile to note that the value of assets at the beginning of check period is taken only in respect of those assets which exist even at the end of the check period. In this respect the sale proceeds of the said car of Smt.Vinita Singh for Rs.1 lac has been shown in her income for the financial year 200203 as available in Ex.PW.26/B.1, which shows that the car was sold prior to 31.03.03. The credit for the same has been given by the prosecution to the account of Smt.Vinita Singh as it is appearing CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.50 of 177 in the column of income of Smt.Vinita Singh during the check period at item No.(m) as shown in the charge sheet at page no.10 which has been taken on the basis of Ex.PW.47/Y.2 (D62). 5.1.6 Ex.PW47/Y2 shows that the value of Zen Car UP14 C3772 on 31.03.98 was reflected as Rs.1,85,744/, its written down value (WDV) as on 31.03.02 was Rs.66,867.84 and value as on 31.03.03 was shown in column as 'O' with remarks as sold (page 5 of Ex.PW47/Y2). The sale proceeds of the same car has been reflected on receipts side of receipts and payments account of Smt.Vinita Singh for the financial year 200203 as per Ex.PW26/B1 (D58). Thus, the value of already sold out car of Smt.Vinita Singh can not be included in value of her assets at the beginning check period. Hence the value of movable assets CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.51 of 177 Smt.Vinita Singh as at the beginning of the check period, based on her Income Tax Returns, is arrived at Rs.7,44,662.86. 5.2.1 Thus the total of the movable assets of accused Tribhuwan Singh & Smt.Vinita Singh as on 01.01.99 comes to Rs. 15,68,111.29 (Rs.8,23,448.43 + Rs.7,44,662.86). When the cost of immovable assets of the accused and his wife is added together with their movable assets, the total of their assets at the beginning of the check period comes to Rs.15,68,111 + Rs. 4,25,250 = Rs.19,93,362/ (Statement A).
6.0 ASSETS AT THE END OF CHECK PERIOD:
6. It has been alleged by CBI that accused was in possession of immovable assets worth Rs.35,43,050/ in his own name and CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.52 of 177 in the name of his wife as under:
7. IMMOVABLE ASSETS OF ACCUSED/TRIBHUWAN SINGH AND HIS WIFE/VINITA SINGH AT THE END OF CHECK PERIOD i.e. 10.07.03 Sl.No. Description Total Value (Rs.)
01. Residential House at KC165, Kavi Nagar, Ancestral Property Ghaziabad
02. Cost of Plot at A45, Sec.51, NOIDA in the name of 4,25,250.00 Tribhuwan Singh and his wife/Smt.Vinita Singh Construction cost incurred on plot no. A45, Sec.51,
03. Noida by Tribhuwan Singh and his wife Vinita Singh 31,17,800.00 Total 35,43,050.00 6.1.2 Item No. 01 - House No.KC165, Kavi Nagar, Ghaziabad rd inherited by accused, his mother and brother in proportion of 1/3 each after demise of his father, which is not disputed. The same is ancestral property which was already with him at the beginning as also at the end of the check period. Hence, it valuation was not relevant.
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6.1.3 Item No. 02 As regards the cost of plot the same has
already been discussed while discussing the value of immovable properties of accused at the beginning of the check period in para 4.1 (supra) and it is not disputed that cost of plot No.A45, Sector 51 NOIDA in the joint names of accused and his wife was Rs. 4,25,250/.
6.2.0 Item No. 03 COST OF CONSTRUCTION OF THE HOUSE No.A45, SECTOR51, NOIDA 6.2.1 CBI has alleged that an amount of Rs.31,17,822/ was spent by accused towards the cost of construction on plot no.A45, Sector51, NOIDA, owned by him jointly with his wife. For this purpose CBI has got valued the said house from the CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.54 of 177 valuer of Income Tax Department Sh.Bijoy Kant, who has been examined as PW66. Sh.Bijoy Kant is Civil Engineer by profession and has since retired from the Income Tax Department as Valuation Officer. He proved the letter of CBI dated 15.12.03 sent to Income Tax Department through which CBI wanted to have valuation of the aforesaid property, which is Ex.PW66/A (D70). He also proved a letter of CBI dated 17.12.04, vide which he was provided with copies of certain documents and the enclosures from page nos.1 to 359 and a register from page no.1 to 15 which are Ex.PW66/B. He deposed that he had inspected the property on 10.02.04 and thereafter valuation report was prepared by him and was forwarded to CBI through letter dated 22.03.04 which has been proved by him as Ex.PW66/C (D18) and the valuation report in seven sheets which was forwarded by CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.55 of 177 him with his letter, has been proved by him as Ex.PW66/D. 6.2.2 He has deposed that the cost of construction of the said property was Rs.31,17,800/ as mentioned in the report which was exclusive of the cost of land and the period of construction was taken as March, 1999 to November, 2000.
6.2.3 He was crossexamined by ld.defence counsel and during his crossexamination he stated that he is not aware if his valuation report, Ex.PW66/D has been overruled by Commissioner, Income Tax (Appeals), Ghaziabad, UP. He, however volunteered that he had not given any valuation report to the Income Tax Department in respect of aforesaid property. He also stated that he was Valuation Officer of Income Tax CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.56 of 177 Department at the time when he had given the valuation report. He denied suggestion that the valuation report which was prepared by him, has been adjudicated by superior officers of Income Tax Department and on a specific question put to him he clarified that since the CBI does not have a valuation wing of its own, it had requested the CBDT to assist CBI in getting properties valued with respect to their cases but such a valuation report is not covered under any provisions of Income Tax Act. 6.2.4 He was shown the 'guidelines for valuation of the properties', Ex.PW66/DA by ld.defence counsel. After seeing the same witness has stated that while carrying out the valuation of the properties he follows those guidelines. His attention was drawn to para no.5 of the said guidelines and he was asked CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.57 of 177 whether he agrees to the method of valuation laid down therein. The witness admitted the same but volunteered that these guidelines are followed while carrying out valuation of the properties but along with these guidelines he uses knowledge and experience as engineer. He admitted that when valuation is made on plinth area method, it covers all the items till the finishing of the building.
6.2.5 Taking clue from this statement of witness, ld.defence counsel has submitted that since valuation by plinth area method covers all the items till finishing of the building, the witness has wrongly added extra items over and above plinth area rates which is illegal. We find that in his covering letter letter to SP, CBI, the witness had stated specifically that "in our valuation we have CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.58 of 177 considered actual expenditure done on work for extra items not covered in plinth area rates approved by CBDT." He also observed in the same letter that he examined the valuation report of M/s Jain & Associates for this property amounting to Rs. 21,69,470/ and opined that he had under valued the property and the plinth area rates adopted by him was on lower side and all the extra items provided, have not been accounted for in the report. He also stated that since the owner has maintained the accounts of expenditure of various contractors, there is no justification for giving rebate for personal expenditure @ 10% and that that compound wall, gate, drive way, steel jali at back have been taken by M/s Jain Associates at lumpsum whereas he has taken these based on actual expenditure incurred by the owner and on the basis of analysis of items of work wherever needed.
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6.2.6 His valuation report, Ex.PW66/D shows that for RCC
framed structure, he has taken the cost of construction as Rs. 20,07,213/ on plinth area method and then he has added extra over plinth area norms such as W/S & S/I in toilets, kitchen I/C fittings, fixtures and water tanks for Rs.1,86,515/; electrical works I/C conduits, wiring, fans, fitting etc for Rs.1,20,790/; wood work in chowkhats and shutters for Rs.95,901/; cupboard in rooms, kitchen and baths for Rs.1,55,300/; steel work in railings, grills, jalis, spiral stairs and gate for Rs.1,01,750/; front facade work with tile border on balcony and porch etc for Rs.56,690/; flooring i.e. with kota stone, red sand and marble stone for Rs.1,10,776/; finishing work i.e. oil based distemper, wood polish and plastic emulsion paint for Rs.31,369/; anti termite treatment in basement CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.60 of 177 for Rs.9,789/; dogra gas pipline for Rs.3,960; installation of air cooling system for Rs.70,000/; ducting for air conditioner system for Rs.13,450/; electronic security system for Rs.20,000/; water treatment (water softening) plant for Rs.12,300/; tubewell (submersible pump) for Rs.22,300/ and miscellaneous expenditure such as water supply and electricity bills for construction work for Rs.36,384/, on actual basis, as per report and boundary wall with brick masonry work for Rs.48,016 + 25,300/.
6.2.7 Determination of plinth area rates has been done by the valuer as detailed in his valuation report. In the guidelines put to this witness as Ex.PW66/DA, it is mentioned in para 5.2.2 that "to know the cost of a completed building (Standard building) is CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.61 of 177 divided by its plinth area to arrive at the Plinth Area Rate (PAR). For determining the basic cost of a similar building its plinth area is multiplied by the PAR. The extra cost involved in providing richer specifications compared to the standard building, whose plinth area rate was determined, is added to the basic cost to arrive at the completion cost. These are usually termed as extra items. For instance, if PAR was determined for a building with a cement concrete flooring then for determining the cost of a building with marble flooring, the additional cost involved in flooring is to be added. There are instances where the additional cost, due to richer specifications, is more than the basic cost arrived by multiplying the plinth area by the PAR."
6.2.8 The ld.defence counsel has argued that when the cost
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of the building was determined by plinth area given by PW66/Bijoy Kant, he could not add any other items. This is not correct position as per guidelines got exhibited by accused himself as Ex.PW66/DA. He has submitted that PW66/Bijoy Kant has assumed the cost of extra items as per the guidelines but he has not mentioned in his valuation report as to from where he has taken those actual amounts of items as mentioned in his report, Ex.PW66/DA.
6.2.9 PW66/Bijoy Kant, at the very outset, stated that he was provided with certain documents by CBI vide Ex.PW66/B but no question has been put to him by accused to clarify from him as to from where he had taken those figures on actual basis as reflected in his valuation report. No suggestion has been CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.63 of 177 made to the witness that he has wrongly added the particular extra items over plinth area norm, to afford him an opportunity, to explain the correctness of these figures based on vouchers and documents of accused provided to him by CBI for taking assistance therefrom. No motive has been imputed upon him as to why, he being a Government officer, would have given a wrong valuation report by enhancing figures.
6.2.10 The next argument of ld.defence counsel is that the valuation report given by PW66/Bijoy Kant was not accepted by the Income Tax Commissioner (Appeals) Ghaziabad in his order u/s 250 of Income Tax Act already Ex.DW3/2, hence it has no bearing on the cost of construction assessed by PW66/Bijoy Kant. It is well settled position of law that the adjudication by the CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.64 of 177 Income Tax Authorities are not binding on the criminal courts as was held by Hon'ble Patna High Court in State of Bihar Vs. Lalu Prasad Yadav, 2008 Cri.L.J., 2433 (Para 72). 6.2.11 However, I have carefully looked into the order of Commissioner, Income Tax (Appeals), Ghaziabad, Ex.DW3/2 and found that it is not based on lawful appreciation of facts. He proceeded to adjudicate the appeal on the assumption that "the objection raised by the appellant, on the valuation done by valuation cell, are not explained by the DVO, in spite of undersigned's specific letter dated 24.09.10 followed by a final opportunity reminder dated 11.11.10. Therefore, I adjudicate these points on merits. (Para 5.1 of order, Ex.DW3/2)." The reading of this order shows that the issue of valuation was decided only by CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.65 of 177 considering the contentions of tax consultant of accused. 6.2.12 Thus, I find that the court can not rely upon the order of Commissioner of Income Tax (Appeals), Ex.DW3/2 to discredit the valuation report filed by PW66/Bijoy Kant, who is a competent witness being Civil Engineer and designated valuation officer of Income Tax Department, who was called by CBI for getting the valuation of the property of accused/Tribhuwan Singh done.
6.2.13 Ld.defence counsel has laid much emphasis on another valuation report which was filed by accused with the Income Tax Department, Ex.P1/1 which was seized by CBI at the time of search at his premises for which PW44/Davender Kumar CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.66 of 177 Jain, who had carried out valuation, has been examined by the prosecution. He has submitted that since prosecution has itself examined PW44/Davender Kumar Jain to prove his valuation report, Ex.P1/1, vide which cost of construction of the aforesaid property has been assessed to Rs.21,69,470/, same should be taken as the correct valuation of the property without any dispute as the said witness has not been declared hostile. 6.2.14 I do not find any substance in the submissions of ld.defence counsel as the purpose of examination of PW44/Davender Kumar Jain was only that the CBI wanted to fairly bring on record that he had carried out valuation of the property for the income tax purpose as is apparent from his testimony recorded before the court, when he had stated that he CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.67 of 177 had valued the house No.A45, Sector51, Noida and submitted report to Income Tax Authorities for income tax purpose and further stated that this report was prepared as per Income Tax Department norms duly notified by the Ministry of Finance. 6.2.15 It is clear from the charge sheet that his valuation report was not believed by CBI as reflecting actual cost of construction that is why the property was got valued by CBI from valuer of CBDT which is proved as Ex.PW66/D. It is clear that valuation report, Ex.P1/1 was obtained by accused himself for the purpose of filing the same with the Income Tax Department for assessing the income tax which obviously was not as per the actual expenditure but only as per his suitability, prepared by a valuer who was hired by him. Thus, the valuation report Ex.P1/1 CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.68 of 177 can not be attached with any other importance except that the same was obtained by accused for income tax purposes. 6.2.16 On comparison of both the valuation reports, I find that the report, Ex.PW66/D is more satisfactory, reasonable and dependable. In this respect, I am also guided by judgment of Hon'ble Himachal Pradesh High Court in Gulzar Ali Vs. State of Himachal Pradesh, 1995, CRI, LJ, 810 (DB) (para 17 of the judgment) to place reliance on opinion of a Government expert more than private expert's opinion. Thus, I hold that the prosecution has successfully established that the cost of construction of house of accused at A45, Sector51, NOIDA was Rs.31,17,800/.
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6.3.1 The value of immovable assets held by accused in his
own name as well as in the name of his wife is thus arrived at Rs. 35,43,050/ as under: IMMOVABLE ASSETS OF ACCUSED/TRIBHUWAN SINGH AND HIS WIFE/VINITA SINGH AT THE END OF CHECK PERIOD i.e. 10.07.03 Sl.No. Description Total Value (Rs.)
01. Residential House at KC165, Kavi Nagar, Ancestral Property Ghaziabad
02. Cost of Plot at A45, Sec.51, NOIDA in the name of 4,25,250.00 Tribhuwan Singh and his wife/Smt.Vinita Singh Construction cost incurred on plot no. A45, Sec.51,
03. Noida by Tribhuwan Singh and his wife Vinita Singh 31,17,800.00 Total 35,43,050.00 7.0 MOVABLE ASSETS HELD IN THE NAME OF ACCUSED/TRIBHUWAN SINGH 7.1.1 As per the charge sheet it has been alleged that accused Tribhuwan Singh was in possession of movable assets CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.70 of 177 of Rs.31,81,479.46 as at the end of check period i.e. 10.07.03 detailed as under: MOVABLE ASSETS IN THE NAME OF ACCUSED/TRIBHUWAN SINGH Sl.No. Description Total Value (Rs.)
01. Cash recovered from the house of Tribhuwan Singh 2,27,000.00 at H.No.10, Satya Niketan, Chanakyapuri, New Delhi
02. Cash recovered from the locker no.9, SBBJ, Noida 3,00,000.00 in the joint names of Tribhuwan Singh and Vinita Singh
03. Cash recovered from the locker no.294, Syndicate 16,33,000.00 Bank, Mayur Vihar, Delhi in the names of Smt.Vinita Singh and her maid servant Kalindi
04. Fixed deposits and bank balances in the name of 2,40,105.71 Sh.Tribhuwan Singh
05. Total cost of movable assets found during house 6,06,430.00 search as per inventory
06. Investment made towards shares/debentures by 1,74,943.75 Sh.Tribhuwan Singh Total 31,81,479.46 7.1.2 Item No. 01 The recovery of cash amount of Rs.
CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.71 of 177 2,27,000/ from house of accused at H.No.10, Satya Niketan, Chankaya Puri, Delhi has been proved vide Ex.PW.8/A. 7.1.3 PW.8 Sh.Surendran Nair, who was an independent witness to the search proceedings at the house of accused, has specifically deposed that cash amount which has been recovered, was found kept underneath mattress of the bedroom. He has deposed that money which was recovered, was more than Rs.2 lacs but he did not recollect the exact amount which was seized. He has stated that some small portion of money was returned back to the occupier of the premises.
7.1.4 During his cross examination, no question was put to the witness to test his veracity regarding the recovery, except for CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.72 of 177 a suggestion put to him to which he replied 'it is wrong to suggest that cash was recovered underneath the mattress of the bed'. The recovery of amount of Rs.2,27,000/ as mentioned in the search list Ex.PW.8/A, the receipt of which has been duly acknowledged by accused on the date of search, is not disputed and what is disputed is the recovery of cash amount from underneath the mattress, which is not material. 7.2.1 Item No. 02 It is alleged that cash amount of Rs.3 lacs was recovered from locker No.9 maintained by accused jointly with his wife with State Bank of Bikaner and Jaipur (SBBJ), NOIDA.
7.2.2 The locker observation memo Ex.PW.3/A (D.7)which
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has been proved by PW.3 Smt. Sunita Chandra, shows that cash amount of Rs.3 lacs, besides jewellery, which was found in the aforesaid locker on 11.07.03 i.e. the date of operation of locker in the presence of CBI Officer, bank officials and accused. It is mentioned in the said observation memo that the accused was satisfied that all the items of the locker were placed back in it except the cash amount of Rs.3 lacs which was seized by CBI. 7.2.3 In the crossexamination on behalf of accused, it was suggested to PW3 that jewelery which was present in the locker was not seized and it was put back in the locker by the CBI. Thus, this recovery of cash amount of Rs.3 lacs from aforesaid locker is also not disputed by accused.
CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.74 of 177 7.3.1 Item No.3 As per the charge sheet, a further cash amount of Rs.16,33,000/ was recovered from locker No.294, Syndicate Bank, Mayur Vihar, Delhi in the name of Smt.Vinita Singh and her maid servant Kalindi. In this respect, PW.2 Sh.Rajesh Sharma Assistant Manager of Syndicate Bank has been examined in whose presence, locker No.294 was searched by CBI and recovery of Rs.16.33 lacs was effected. The observation/seizure memo is Ex.PW.2/1(D.6) which shows that Smt.Vinita Singh was present during the search proceedings alongwith CBI officials and bank officials and her signatures are appearing on the said observation/seizure memo, which was prepared in her presence on the day when locker was operated on 12.07.03. PW.2 Sh.Rajesh Sharma has been examined in this respect and no question was put to him by the ld.defence counsel. Thus, the CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.75 of 177 recovery of this amount is also not disputed. 7.3.2 Locker no.294 with Syndicate Bank, Mayur Vihar, was opened/hired by wife of accused, by using the name of her maid/Smt.Kalindi as the first person. The locker was opened on 14.05.03 and as per Ex.PW2/8, it is shown that Smt.Kalindi had operated the locker on that day. Thereafter on all subsequent dates i.e. 29.05.03, 13.06.03, 24.06.03 and 12.07.03, it has been operated by Smt.Vinita Singh. It is also shown that on the same date, an SB account was opened in the name of Smt.Kalindi bearing no.4025 with the same bank. The statement of account which is Ex.PW2/7 (D15) shows that Rs.5,000/ was deposited on 14.05.03 and from the same account Rs.2,450/ was deducted towards locker rent. A fixed deposit of Rs.1,000/ in the name of CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.76 of 177 Smt.Kalindi was also bought for lien of bank for locker no.294, the statement in respect of which is Ex.PW2/5. The FDR of Rs. 1,000/ in the joint names of Smt.Kalindi and Smt.Vinita Singh is Ex.PW2/4 (D30).
7.3.3 When Smt.Kalindi was examined as PW22, she stated that Smt.Vinita Singh had got opened the account in her (Kalindi) name at her (Kalindi) request. She stated that she was not aware about hiring of the locker and execution of the documents in that respect and she never operated the locker or kept anything in the said locker. She specifically deposed that she had signed the documents regarding opening of the locker at the instance of Smt.Vinita Singh. She also stated that she had not operated locker on 14.05.03 and had signed on the locker CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.77 of 177 operation memo at the instance of Smt.Vinita Singh. During her crossexamination by ld.counsel for accused, she stated that she had never talked with Smt.Vinita Singh regarding keeping of articles in the locker for the marriage purpose of her daughter. She stated that she does not know for what purpose locker was hired.
7.3.4 Thus, it is clear from the deposition of Smt.Kalindi and the documents exhibited by her that this locker in which Rs.16.33 lacs were found, was hired/opened only on 14.05.03 i.e. hardly two months before the raid was conducted by CBI at the house of accused and it appears that accused is trying to suggest that the locker was opened by Smt.Vinita Singh for the purpose of keeping dowry articles for the daughters of Kalindi.
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7.3.5 It is clear from the testimony of Kalindi (PW22) and
also it is not disputed that she was a maid at the house of accused/Tribhuwan Singh. Her husband, who has also been examined as PW23/Brij Bhushan Mishra, has stated that he was getting salary of Rs.3,500/ p.m. from his employer and that he had started his job at a monthly salary of Rs.250/ p.m. which has increased to Rs.3,500/ p.m. He has stated that on average, he was having Rs.5,000/ to Rs.10,000/ in his account. He specifically deposed that he was not having any articles in the locker of his wife and he was not aware about the bank account and locker in the name of his wife and came to know about it only when raid was conducted at the house of accused. He was not crossexamined by accused/Tribhuwan Singh.
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7.3.6 Thus, it is clear that name of Smt.Kalindi (PW22) was
used by wife of accused only for the purpose of concealing the huge cash amounts in which the first name of Smt.Kalindi was used so that the real owner of the same is not easily detected. 7.3.7 There is no documentary or oral evidence that Smt.Vinita Singh used to earn any money from her profession, except for the income tax returns brought on record by the prosecution. Even when her entire income from profession w.e.f. 01.01.99 to 10.07.03, was added as per her own declaration in the income tax returns, the total earning came to only Rs.6,29,726/ as is reflected in the charge sheet at item no.A on page no.10. Mrs.Vinita Singh had already become terminally ill patient of CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.80 of 177 cancer in the beginning of year 2002 and a patient of Hepatitis 'C' also by January, 2003 hence, unable to earn any thing by profession of architect.
7.3.8 Accused/Tribhuwan Singh did not lead any evidence to prove as to from where Smt.Vinita Singh had brought this much of cash amount and why she kept it in the locker instead of in her bank accounts. This leads to only inference that the entire amount lying stacked in the lockers of Smt.Vinita Singh and Tribhuwan Singh and as seized from their residence was ill gotten money of her husband and she had concealed the same in the lockers. It is a common knowledge that only an unaccounted money is kept by the people in the lockers.
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7.3.9 It has been submitted by ld.counsel for accused that
only Vinita Singh could explain the sources of the cash amounts found in her lockers or as recovered at the house of accused because except Rs.40,000/, all the cash which was found at the house or lockers belonged to her. He has submitted that although statement of Smt.Vinita Singh was recorded in Centre Point Case but the same has been deliberately concealed by the IO of the case and not brought to the notice of accused which could have thrown light on the source of the cash with her. 7.3.10 On the other hand, ld.Public Prosecutor has submitted that the statement of Smt.Vinita Singh was not relevant for the purpose of this case as she was to be implicated as coaccused for abetting the offence by accused/Tribhuwan Singh in amassing CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.82 of 177 wealth which was highly disproportion to his known sources of income but she expired on 05.11.03 i.e. before registration of FIR of this case. To my mind, even if she had made any statement before CBI, it was not relevant for this case. It is obvious that in such circumstances Smt.Vinita Singh would have only tried to cover up the huge recovery of cash from her house and lockers and save herself and her husband from legal consequences. Accused had all the opportunity to render an explanation to recovery of such a huge cash amount but he failed to do so. Now, he can not be permitted to plead that only his deceased wife would have explain the source of such cash amount. 7.3.11 Any attempt to explain the cash recovery in the financial statements and income tax returns prepared and filed CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.83 of 177 after date of recovery and demise of Smt.Vinita Singh, was handwork of accused and his tax consultant for throwing dust in the eyes of law, hence wholly unreliable and unacceptable. 7.3.12 In view of these circumstances, as discussed above, I am of the firm opinion that the recovery of entire cash amount of Rs.21.60 lacs has to be fastened upon accused/Tribhuwan Singh and only he was expected to explain the sources thereof, which he has failed to do.
7.4.1 Item No. 04 CBI has taken an amount of Rs.2,40,105.71 towards the fixed deposit and bank balances in the name of accused/Tribhuwan Singh. The amount has been proved as under: CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.84 of 177 7.4.2 (i) a balance of Rs.4,434.84 was available in SB A/C No. 01190056584 maintained at State Bank of India (SBI), Motijheel, Kanpur, which has been proved by document/statement of account admitted by accused and already Ex.P1/8 (D30). 7.4.3 (ii) a balance of Rs.34,557.16 was available in SB A/C No. 190000791 maintained at State Bank of Bikaner and Jaipur (SBBJ), Navyug Market, Ghaziabad, which has been proved vide admitted document already Ex.P1/9 (D31). 7.4.4 (iii) a balance of Rs.1,46,307.27 in SB A/C No.01190000033 maintained with State Bank of Bikaner and Jaipur (SBBJ), Noida, which has been proved vide Ex.PW4/K which document is also CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.85 of 177 an admitted document as P1/13 (D36).
7.4.5 (iv) a balance of Rs.28,807.44 in SB A/C No.508010035744 maintained with ING Vysya Bank Ltd., Navyug Market, Ghaziabad, which has been proved vide admitted document Ex.PA3 (D45). But since it was CPF account of accused, therefore, it has to be excluded (refer to discussion in para 4.3 supra).
7.4.6 (v) a balance of Rs.25,999/ in PPF A/C No.900002 with State Bank of Bikaner and Jaipur (SBBJ), Noida, has been proved vide document Mark PW4/A, which was in continuation of the earlier PPF A/C No.1971/12 maintained with SBI, Ghaziabad in respect of which the old passbook is also Ex.PW4/D1.
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7.4.7 Thus, the total of balances of all these accounts
comes to Rs.2,40,105.71 and after excluding the balance of CPF account (2,40,105.71 - 28,807.44), an amount of Rs.2,11,298.27, has to be taken as bank balance of accused forming part of his movable assets as at the end of the check period. 7.4.8 Ld.Public Prosecutor has however sought to add further amount of Rs.2,900/ which was balance in SB A/C No. 4862 maintained with Indian Overseas Bank, Arun Vihar, Noida, which was closed on 31.01.2000 and an amount of Rs.1.43,953/ being balance in A/C No.931 maintained with Nainital Bank Ltd., Ghaziabad available as MarkX{Ex.P1/15 (D43)} showing that the same was closed on 07.09.99 with an amount of Rs.1,43,953/ CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.87 of 177 available in the account on that day.
7.4.9 In this respect, it suffice to observe that these balances were not available in the account of accused/Tribhuwan Singh as at the end of check period and, therefore, they can not be taken into account while calculating the amount of movable assets held in his name at the end of the check period. 7.5.1 Item No.5 - The cost of movable assets during search operations as per inventory is shown as Rs.6,06,430/, which has already been discussed and found proved while dealing the item no.7 of movable assets held by accused/Tribhuwan Singh at the beginning of the check period (refer to discussion in para 4.9).
CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.88 of 177 7.5.2 Item No.6 - The investment of accused/Tribhuwan Singh in shares/debentures in the sum of Rs.1,74,943.75 has been proved by PW9/Amit Malhotra and PW20/Col.K P Singh vide Ex.PW20/A and Ex.PW64/U4 and the same is not disputed by the parties, accordingly the same is taken as proved. 7.5.3 Thus, the total of the movable assets held in the name of accused/Tribhuwan Singh at the end of check period comes to Rs.31,52,672.02, as under: MOVABLE ASSETS IN THE NAME OF ACCUSED/TRIBHUWAN SINGH Sl.No. Description Total Value (Rs.)
01. Cash recovered from the house of Tribhuwan Singh at 2,27,000.00 H.No.10, Satya Niketan, Chanakyapuri, New Delhi
02. Cash recovered from the locker no.9, SBBJ, Noida in the 3,00,000.00 joint names of Tribhuwan Singh and Vinita Singh
03. Cash recovered from the locker no.294, Syndicate Bank, 16,33,000.00 Mayur Vihar, Delhi in the names of Smt.Vinita Singh and her maid servant Kalindi
04. Fixed deposits and bank balances in the name of 2,11,298.27 Sh.Tribhuwan Singh CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.89 of 177
05. Total cost of movable assets found during house search 6,06,430.00 as per inventory
06. Investment made towards shares/debentures by 1,74,943.75 Sh.Tribhuwan Singh Total 31,52,672.02 8.0 MOVABLE ASSETS HELD IN THE NAME OF SMT.VINITA SINGH AT THE END OF CHECK PERIOD 8.1.1 The prosecution has taken the total amount of Rs. 7,25,085.74 towards the movable assets of Smt.Vinita Singh at the end of check period, described as under: Sl.No. Description Amount (Rs.)
01. Furniture 8,096.00
02. Plant & Machinery 2,360.39
03. Nokia Cell Phone 1,993.36
04. AC 431.16
05. Computer 24,115.21
06. Computer/Printer 1,134.85
07. New PC 23,487.00
08. LIC New 29,882.00
09. LIC Old 33,034.30
10. Shares in the name of Smt.Vinita Singh 1,76,997.20 CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.90 of 177
11. Bank Balance of Smt.Vinita Singh 1,16,501.95
12. Loan to Anant Singh 97,500.00
13. Cash in hand 2,09,552.32 Total 7,25,085.74 8.1.2 The amount has been taken from the balance sheet for the financial year 200304 of Smt.Vinita Singh is Ex.PW26/DA (D160). This balance sheet was handed over by accused/Tribhuwan Singh to CBI on 29.10.04 as per production cum seizure memo, Ex.P1/62 which is admitted document. Ld.Public Prosecutor has submitted that since wife of accused, namely, Smt.Vinita Singh had expired before registration of FIR, CBI had no option but to take the figures of movable assets held by her at the end of check period as narrated in her balance sheet submitted by her husband/Tribhuwan Singh after her death. Although, the total of movable assets at the end of check period CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.91 of 177 has been shown as Rs.7,25,085.74 on the basis of Ex.PW26/DA but there appears typographical error in respect of loan to Sh.Anant Singh which is in fact Rs.57,500/ as per balance sheet, Ex.PW26/DA and wrongly written as Rs.97,500/ as per item no.
12. This amount has, therefore, to be taken as Rs.57,500/ i.e. reduced to Rs.40,000/.
8.1.3 It is worthwhile to note that entire cash amount recovered from the residence and locker of accused and his wife has been taken into the assets of accused/Tribhuwan Singh at the end of the check period. Thus, the book balance of cash in hand shown in the return of Smt.Vinita Singh should also have been the part of the same recovered amount of Rs.21.60 lacs. Although, the ld.defence counsel has not agitated about adding a CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.92 of 177 further cash amount of Rs.2,09,552.32 into the assets of Smt.Vinita Singh, but it would be fare to reduce her assets by that amount. Thus, the total assets held in the name of Smt.Vinita Singh as at the end of check period after reducing Rs.2,49,552/ (i.e Rs.40,000 + 2,09,552) comes to Rs.4,75,533/ only (i.e Rs. 7,25,085 - Rs.,2,49,552/).
8.2.1 Thus, the total value of movable assets held by accused in his and in his wife's name comes to Rs.36,28,205/ (Rs.31,52,672/ + Rs.4,75,533/).
8.2.2 When the value of immovable assets of accused are added to this figure, the amount of assets held by accused as at the end of check period comes to Rs.71,71,255/ (Rs.36,28,205/ CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.93 of 177 + Rs.35,43,050/) (Statement B).
9.0 EXPENDITURE DURING THE CHECK PERIOD 9.1.1 It has been averred in the charge sheet that during the check period, accused/Tribhuwan Singh had incurred expenditure aggregating to Rs.25,42,847.86 in his name and in the name of his wife. Expenditure incurred by accused/Tribhuwan Singh is shown as below: Sl.No. Description Total Value (Rs.)
01. Repayment of house loan by Sh.Tribhuwan Singh from 06.08.99 3,42,349.00 to 10.07.03
02. Expenses on LIC premium policy no.25034524 33,670.00
03. Expenses on purchasing of NSC No.16957 35,000.00
04. Expenses on payments made towards house rent i.e. Flat No. 96,000.00 1746, Sector29, Noida
05. Expenses on insurance of Car No.UP14L4797 28,920.00
06. Expenses on installation of RO System 19,500.00
07. Expenses incurred on payment to Noida Golf Club 29,106.00
08. Payments of Tel.No.2759339 12,914.00
09. Expenditure incurred on purchasing of fuel/petrol for private car 2,00,800.00 no.4P14L4797 CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.94 of 177
10. Electricity bill of flat no.10, TypeV, Satya Sadan, New Delhi 2,084.00
11. Expenditure incurred on mobile no.9810033033 10,142.73
12. Household expenditure (1/3rd of take home salary of 3,97,232.94 Sh.Tribhuwan Singh) Total 12,07,718.67 9.2.1 Item No. (i) - An amount of Rs.3,42,349/ has been repaid by accused/Tribhuwan Singh on account of his housing loan availed from HDFC which has been proved vide admitted document, Ex.P1/6 (D28) and testimony of PW45/D K Gupta. 9.2.2 Item No.(ii) - Expenses on LIC premium bearing policy no. 25034524 paid by accused during the check period was Rs. 33,670/ which has been proved vide Ex.P1/51 (D120), Ex.P1/52 (D121), Ex.P1/53 (D122), Ex.P1/54 (D123) and Ex.P1/55 (D124). This amount is as per admitted documents.
CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.95 of 177 9.2.3 Item No.(iii) - Expenses incurred for purchasing NSCs of Rs.35,000/ has been proved vide Ex.PW11/A (D126), Ex.P1/56 (D127), Ex.PW11/A1 (D128) and PW11/A2 (D129) and testimony of PW11/J P Singh.
9.2.4 Item No.(iv) - Expenses of Rs.96,000/ towards rent paid for hiring flat no.1746, Sector29, NOIDA by accused/Tribhuwan Singh for his residence during check period has been proved vide Ex.PW1/3 (D69) and statement of PW1/Col.A K Sharma. 9.2.5 Item No.(v) - Expenses on insurance of Car No.UP14 L4797 (Zen) for Rs.28,920/ has been proved vide Ex.P1/20 (D67) and Ex.PW42/A to F (D67) along with statement of CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.96 of 177 PW42/Yashwant Singh. This amount has also not been disputed by the parties.
9.2.6 Item No.(vi) - Expenses of Rs.19,500/ on installation of RO System could not be proved by CBI as PW43/R Surya Rao could not produce the document.
9.2.7 Item No.(vii) Payment made to Noida Golf Club for Rs. 29,106/ has been proved vide admitted document Ex.P1/66 (D182) and testimony of PW53/Shivendra Jaitley. 9.2.8 Item No.(viii) - Payment of telephone expenses of Rs. 12,914/ in respect of Ph.No.2759339 has been proved vide admitted document, Ex.P1/16 (D137). This document has also CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.97 of 177 not been disputed by the parties. However, it is seen that accused had taken reimbursement of his phone bills from his employer. Hence, this amount can not be taken into the expenditure of accused (See also para 12.3.3 and 12.3.4, infra) 9.3.1 Item No.(ix) - Expenditure incurred on purchasing fuel/petrol for private car no.UP14L4797 of Rs.2,00,800/, has been sought to be proved by the prosecution by examining PW46 as also by exhibiting the documents.
9.3.2 Ex.PW8/B, which is the inventory of articles found in the house of accused as on 10.07.03, shows on its first page that in the garage there was one car bearing no.UP14L4797 Zen LX with acquisition year as 1999 and Kilometer (KM) reading as CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.98 of 177 80330. This car stands in the name of accused. 9.3.3 The prosecution got examined PW46/Gagan Arora, who is a Mechanical Engineer by profession and working with M/s Safdarjung Service Station, New Delhi for past 10 years. He has stated that his duties were to repair and service of Maruti Cars as well as the cars of other makes. He deposed that Maruti car of 1999 model was giving an average of 1516 KMs per liter initially when it is new and after about 12 years the said car starts giving an average of 1314 KMs per liter and thereafter the average reduces to 810 KMs per liter. He deposed the Maruti Zen of 1999 model which had covered 80330 KMs as on 17.07.03 would be giving an average of 1314 KMs per liter of petrol. He has opined that the petrol consumption by the such model of car can CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.99 of 177 be taken at an average of 12 KMs per liter and at that time the rate of petrol was Rs.37/ per liter. He deposed that while calculating the cost of petrol, the average rate of petrol has been taken @ Rs.30/ per liter and after calculations he reached to the conclusion that the cost of expenditure of petrol incurred on Maruti Zen Model from 1999 to July 2003 would be about Rs. 2,00,800/ (although the expenditure would be 80330 Kms X Rs. 30/ per liter = Rs.2,40,990/). He was not crossexamined by the accused even after giving opportunity meaning thereby that the testimony of PW46/Gagan Arora is not in dispute. 9.3.4 Ld.counsel for accused has submitted that firstly the car was being utilized by the family of accused/Tribhuwan Singh i.e. his son and wife and whoever was taking the car, used to fill CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.100 of 177 the tank. He has further submitted that in the same Ex.PW8/B, it is mentioned that NDMC Car bearing no.DL2CM6635 was also found standing in his garage and, therefore, it is proved that accused/Tribhuwan Singh was using his official car and not his personal car.
9.3.5 Second limb of his argument is that although in Ex.PW8/B, KM reading is mentioned as 80330 but is it is not mentioned as to which car was having this reading. 9.3.6 From careful perusal of Ex.PW8/B, it is found that the KM reading (80330) is written just below the Zen LX car No.UP14L4797, which is admittedly in the name of accused/Tribhuwan Singh and, therefore, this reading could not CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.101 of 177 pertain to any other car except the said Maruti Zen Car. 9.3.7 Moreover, when PW8/R Surenderan Nair, witness to the inventory was examined, no doubt was raised by the accused or any question was put to this witness to suggest that this reading did not pertain to UP14L4797. No such suggestion was put to PW65/A B Chaudhary, DSP, CBI, who had conducted the search and prepared inventory and signed the same at point C. Even at the stage of statement u/s 313 Cr.PC, no such defence has been taken. Now, it can not be agitated that this reading of 80330 may pertain to some other vehicle and not of Maurti Zen LX Car bearing no.UP14L4797.
9.3.8 To support his submission that the car of
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accused/Tribhuwan Singh was being used by his wife and son, ld.defence counsel has drawn attention of the court towards testimony of Sh.Anant Singh, who has been examined as DW7. He has stated that during 01.01.99 to 10.07.03, he was residing with his parents and grand mother and he used to drive his father's car for his purpose and his mother also used to drive the said car whenever she required and his father was having his official car, which was used by him.
9.3.9 During his crossexamination, ld.Public Prosecutor asked him as to where was he on 10.07.03 when the search was conducted at his father's residence. He stated that he was at his office at Okhla, PhaseIII. He stated that he had taken a flat on rent after death of his mother around 2005. He had shown his CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.103 of 177 ignorance that his father had not stated to the CBI during preparation of inventory of household items that some of the articles were purchased by him (Anant Singh) from his own earnings. A question was put by the ld.Public Prosecutor to him that when search was conducted at Chanakya Puri residence of his father/Tribhuwan Singh from 7.30 a.m to 5.00 p.m. on 10.07.03 and his office hours were either from 3.00 a.m to 1.00 p.m. or 1.00 p.m to 3.00 a.m then why his presence is not shown on that day at his house during search proceedings. At this, he replied that he used to go with his friends instead of coming back to his residence and probably that was the reason why he may have not come to house during search proceedings. This show that he has just tried to cover up the case of his father and not actually residing with his parents.
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9.3.10 By the statement of DW7/Anant Singh, accused has
tried to show that, he was also residing in the same official accommodation of accused/Tribhuwan Singh, although there is no other satisfactory evidence to show that Sh.Anant Singh was also residing with him or using his car. This hypothesis is further strengthened from his absence from the house as on the date of search as also by the fact that he was having a separate Opel Corsa Car bearing no.DL2CM7028 in respect of which mention th has been made on the 4 page of Ex.PW8/B. Moreover, his ITRs (D145) already Ex.PW26/F.1 to F.4 and Ex.PW47/A to E, which he filed during the check period show his residential address at KC165, Kavi Nagar, Ghaziabad and not the Satya Niketan address of accused.
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9.3.11 Ld.Public Prosecutor for CBI has also drawn attention
of the court towards page no.9 of the income tax return of Sh.Anant Singh for the assessment year 200001, Ex.PW26/F.2 (D145) which is a receipt of rent dated 15.04.2000 for Rs. 30,000/ executed by Smt.Shakuntala Devi, mother of accused about receiving rent of Rs.30,000/ @ Rs.2,500/ p.m from Sh.Anant Singh for letting out the rear portion of her house bearing no.KC165, Kavi Nagar, Ghaziabad. The corresponding income tax return of Smt.Shakuntala Devi for the assessment year 200001, Ex.PW47/C (D157) show income from house property received by her in the sum of Rs.29,272/ and thereafter also her ITRs for the assessment year 200102, Ex.PW47/X7 & 8 and 200203, Ex.PW47/X9 & 10 show her rental income.
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9.3.12 This substantiate the fact that Sh.Anant Singh was not
actually residing with his father in his official accommodation at Satya Niketan, New Delhi during the check period. 9.3.13 As regards using the official car by accused/Tribhuwan Singh, he has not brought anything on record to show that since when he was using his official car as the check period was w.e.f. 01.01.99 to 10.07.03.
9.3.14 As regards submission that Smt.Vinita Singh was also using the same car, it is clear that Smt.Vinita Singh was owning a separate Zen Car bearing registration no.UP14C3772 during 1998 till 2002, when she sold the said car for Rs.1 lac. In her CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.107 of 177 income tax returns, she has shown that she had incurred petrol expenses of Rs.88,182.88 {as per Ex.PW26/B1 to B4 (D57 and D58)}. Even otherwise entire income and expenditure of Smt.Vinita Singh has been included, thus, there is nothing extra left in her hands for taking further expenditure towards the part of petrol expenses of accused's Zen car.
9.3.15 Thus, it is proved beyond any reasonable doubt that the car of accused/Tribhuwan Singh bearing no.UP14L4797 which was purchased by him in the year 1999 was available with him as on 10.07.03, it had run 80330 KMs, and the cost of petrol which it had consumed, was Rs.2,00,800/.
9.3.16 Under such circumstances, the burden had shifted on
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accused to show that this car was also used by others with the extent of expenditure incurred by them, which he has failed to do. Thus, it is established beyond reasonable doubt that he had spent Rs.2,00,800/ on the purchase of fuel/petrol for his car no.DL14L4797 during the check period. It is noteworthy that certainly there would have been certain service and maintenance expenses incurred by accused during the check period but investigation has failed to bring the same on record. 9.4.1 Item No.(x) and (xi) - Electricity bill of Rs.2,084/ paid by accused during the check period has been admitted by him as Ex.P1/58 (D134) and payment of mobile bill for 9810033033 for Rs.10,142.73 has also been admitted by accused vide Ex.P1/60 (D136) and there is no dispute regarding these bills paid by CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.109 of 177 accused. However, the expenditure on mobile phone bills can not be added to his expenses as the same were reimbursable from his employer, as has been proved by accused in defence. Hence, amount of Rs.10,142.73 will be excluded.
9.4.2 Item No.(xii) - Prosecution has sought to take the household expenditure of accused/Tribhuwan Singh at Rs.
rd 3,97,232.94 on the basis of 1/3 of take home salary during the check period. It has been strongly opposed by ld.defence counsel submitting that there is no evidence at all to show that accused/Tribhuwan Singh has spent this much of amount on his household expenditure. He has submitted that mother of accused/Smt.Shakuntala Devi and son/Anant Singh were also residing in the same house and all were income tax assessee CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.110 of 177 and contributing to the household expenses from their income also.
9.4.3 Income tax return filed by Smt.Shakuntala Devi, mother of accused (D153), which are already Ex.PW47/X1 to X4, show that residence of Smt.Shakuntala Devi is KC165, Kavi Nagar, Ghaziabad and never at Shanti Niketan, New Delhi. Similarly, ITRs of Sh.Anant Singh (D145) already Ex.PW26/F.1 to F.4 and Ex.PW47/A to E show that he was residing at KC165, Kavi Nagar, Ghaziabad and never at Satya Niketan address i.e. address of accused (Also see discussion in para 9.3). 9.4.4 Thus, there was no question of Smt.Shakuntala Devi and Sh.Anant Singh contributing to the household items and CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.111 of 177 expenditure of accused/Tribhuwan Singh. However, in the financial returns of Smt.Vinita Singh filed by her with her income tax returns, there appear some entries of personal expenses incurred by her, and hence in the charge sheet filed by CBI, an amount of Rs.1,45,767/ (as shown at sl.no.xix on page no.8 of the charge sheet), has been taken as her expenditure. 9.4.5 Thus, it is clear that Smt.Vinita Singh was contributing to the household expenses. There is no other evidence about the household expenses of accused/Tribhuwan Singh as he was not having any other sources of agricultural income or support from agriculture for his household expenses. It is understood that he must have been spending some reasonable portion of his salary on household expenditure.
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9.4.6 Ld.defence counsel has fairly submitted that an
amount of Rs.1,68,308/ can be taken as household expenditure of accused/Tribhuwan Singh on the basis of testimony of PW47/Satish Kumar Bajaj, Tax Consultant of accused and his family members and documents exhibited by him and that it would be unfair to assume household expenses of accused to the rd tune of Rs.3,97,233/ which is calculated as 1/3 of his salary income earned during check period.
9.4.7 Ld.Public Prosecutor has relied upon the judgment of Hon'ble Supreme Court in Sajjan Singh Vs. State of Punjab AIR 1964 SC 464, to submit that 1/3 of the take home salary of rd accused should be taken as his household expenditure during the CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.113 of 177 check period. He has relied upon the following observations of Hon'ble Supreme Court in Sajjan Singh's case: "The total receipts by the appellant from his known sources of income thus appear to be about Rs. 1,03,000/. If nothing out of this had to be spent for maintaining himself and his family during all these years from 1922 to 1952 there might have been ground for saying that the assets in the appellant's possession through himself or through his son (Rs. 1,20,000/) were not disproportionate to his known sources of income. One cannot however, live on nothing; and however frugally the appellant may have lived it appears to us clear that at least Rs.100/ per month must have been his average expenses throughout these years taking the years of high prices and low prices together. These expenses therefore, cut out a big slice of over Rs.36,000/ from what he CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.114 of 177 received. The assets of Rs.1,20,000/ have therefore, to be compared with a net income of Rs.67,000/. They are clearly disproportionate indeed highly disproportionate.
Mr.Lall stressed the fact that the legislature had not chosen to indicate what proportion would be considered disproportionate and he argued on that basis that the Court should take a liberal view of the excess of the assets over the receipts from the known sources of income. There is some force in this argument. But taking the most liberal view, we do not think it is possible for any reasonable man to say that assets to the extent of Rs.1,20,000/ is 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".
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9.4.8 Thus, from perusal of above observation, I find that
rd
there is no direction for taking 1/3 take home salary of accused as his household expenses, although some sufficient portion of it could be taken towards household expenses. 9.4.9 I have come across with the judgment of Hon'ble Punjab & Haryana High Court in Dalip Singh Vs. State of Punjab, 2003 (3) Cri.CC 616, wherein it was observed as under: "similarly may be the savings are deducted according rd to the rules to the extent of 1/3 but at the same time, again there can not be any hard and fast rule in this regard as well. It depends upon the constitution of the family. In the present case, it was a very limited family of two earning persons upto December, 1986 when appellant was blessed with a child.....In these CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.116 of 177 eventualities the savings could be on some higher side also."
9.4.10 Thus, it appears to be fairly well settled position of law that the size of the family of the accused has to be considered while assessing the household expenditure and proportionate savings. Looking to all the factors and standard of living, it can be reasonably assessed that he must have been spending at least Rs.3,000/ p.m. on an average on his household expenses. I accordingly take the household expenses of accused/Tribhuwan Singh at Rs.1,68,308/ towards his household expenses during the check period on the basis of evidence of PW47/Satish Kumar Bajaj, and as relied upon by accused for this purpose, which is reasonable and will meet the ends of justice.
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9.5.1 Thus, total expenditure of accused/Tribhuwan Singh
during the check period is arrived at Rs.9,36,237/.
Sl.No. Description Total Value (Rs.)
01. Repayment of house loan by Sh.Tribhuwan Singh from 3,42,349.00
06.08.99 to 10.07.03
02. Expenses on LIC premium policy no.25034524 33,670.00
03. Expenses on purchasing of NSC No.16957 35,000.00
04. Expenses on payments made towards house rent i.e. Flat No. 96,000.00
1746, Sector29, Noida
05. Expenses on insurance of Car No.UP14L4797 28,920.00
06. Expenses on installation of RO System Nil
07. Expenses incurred on payment to Noida Golf Club 29,106.00
08. Payments of Tel.No.2759339 Nil
09. Expenditure incurred on purchasing of fuel/petrol for private car 2,00,800.00
no.4P14L4797
10. Electricity bill of flat no.10, TypeV, Satya Sadan, New Delhi 2,084.00
11. Expenditure incurred on mobile no.9810033033 Nil
12. Household expenditure (1/3rd of take home salary of 1,68,308.00
Sh.Tribhuwan Singh)
Total 9,36,237.00
10.0 EXPENDITURE OF SMT.VINITA SINGH DURING THE CHECK PERIOD 10.1.1 The CBI has taken the expenditure incurred by CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.118 of 177 Smt.Vinita Singh during the check period at Rs.17,32,362.13, on the basis of her I T Returns, as under: EXPENDITURE INCURRED BY SMT.VINITA SINGH, WIFE OF ACCUSED/TRIBHUWAN SINGH AS PER HER I.T.RETURNS Sl.No. Description Total Value (Rs.)
01. Stationary 3,994.00
02. Postage 2,874.50
03. Traveling 7,608.00
04. Photostat 1,055.50
05. Telephone Bills 27,657.00
06. Mobile Phone Bills 48,045.17
07. Computer Maintenance 3,097.00
08. Bank Charges 5,935.70
09. Office Maintenance 1,935.00
10. Car Maintenance 16,183.48
11. Petrol Expenses 88,182.88
12. Car Insurance 12,523.00
13. Computer Training 9,000.00
14. Newspapers, etc. 1,256.50
15. Misc.Expenses 60.00
16. Electricity Charges 27,112.00
17. Interest on Car Loan 1,755.00 CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.119 of 177
18. Interest on Canara bank Loan Account 883.00
19. Personal Expenses 1,45,766.00
20. Service Tax 3,360.00
21. Foreign Travels 51,313.00
22. LIC Premium Self 45,092.00
23. LIC Premium Surabhi 3,741.00
24. Misc. Interest Paid 98.50
25. Electricity Charges, Noida 1,707.00
26. Income Tax 1,025.00
27. Advance Income Tax 3,794.00
28. Locker Security Vysya Bank 1,050.00
29. Locker Security Syndicate Bank 1,000.00
30. Wedding (Anant) 20,000.00
31. Compounding Fee to Noida Authority 31,016.00
32. Repayment of Loan HDFC 1,41,672.50
33. Interest to HDFC 1,80,747.00
34. Loan to Anant Singh 1,45,000.00
35. Loan/Transfer to T.Singh 3,28,721.10
36. Repayment of Car Loan to Anagram Finance 47,519.00 Ltd.
37. Repayment of loan to Canara Bank 46,045.00
38. Purchase of New Shares 1,82,221.80
39. Purchase of National Savings Certificates 30,000.00
40. Purchase of Computer 31,316.00 CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.120 of 177
41. Telephone Security Noida House 5,000.00
42. Security of Noida House 26,000.00 Total 17,32,362.13 10.1.2 The IO has simply picked up these figures from financial statement of Smt.Vinita Singh, without any analysis. 10.1.3 The receipt and payment account of Smt.Vinita Singh (M/s Rachna Architect and Engineers) has been proved by PW26/R K Singh, Income Tax Officer as Ex.PW26/B1 to B4 (D58). The expenditure amount has not been agitated by ld.defence counsel but he has only submitted that the income or expenditure of Smt.Vinita Singh should not be clubbed with the income and expenditure of accused/Tribhuwan Singh which issue has already been dealt at the initial stage and found not CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.121 of 177 acceptable. It is remarkable to note that the income tax paid by Smt.Vinita singh during the check period was Rs.1,025/ only and advance income tax paid by her was Rs.3,794/ which is very meagre amount in comparison to her earnings and expenditure as revealed by her in ITRs/financial statements. 10.1.4 The only serious doubt is regarding the loan/transfer to accused/Tribhuwan Singh shown at sl.no.(xxxv) in the sum of Rs.3,28,721/ in respect of which the clarification was sought by the court during arguments from ld.Public Prosecutor and ld.defence counsel. The ld.defence counsel has clarified that these are the notional figures in respect of which there may not be any transaction reflected in the ITR/financial statements of accused/Tribhuwan Singh. In the income of Smt.Vinita Singh as CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.122 of 177 reflected at item no.(x) at page no.10 of the charge sheet, an amount of Rs.3,95,127/ has been shown as 'loan received from T. Singh' which could give rise to an assumption that equal amount could be taken as expenditure of accused/Tribhuwan Singh which is not reflected anywhere in his income tax returns or financial statements.
10.1.5 There can be two ways of handling these two figures, one is that both the figures of Rs.3,28,721/ shown as loan/transfer to accused/Tribhuwan Singh and an amount of Rs. 3,95,127/ shown as loan received from Tribhuwan Singh could be deleted, they being the notional amounts without there being any real transaction, being an arrangement between husband and wife and the other way is that both the amounts may be taken as CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.123 of 177 suggested in the charge sheet. Since admittedly these are only notional figures and not the real transactions of loans/advances, I prefer to discard both these figures as it would fair and reasonable. Thus, the total amount of expenses of Smt.Vinita Singh during the check period comes to Rs.14,03,641/ as against Rs.17,32,362/ (Rs.17,32,362 - Rs.3,28,721). 10.1.6 If the total amount of expenditure made by accused/Tribhuwan Singh and his wife Smt.Vinita Singh is taken together, the figure comes to Rs.23,39,878/ (Rs.9,36,237 + Rs. 14,13,641) (Statement D).
11.0 INCOME DURING THE CHECK PERIOD
11.1.1 The income from known sources of
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accused/Tribhuwan Singh and his wife Smt.Vinita Singh during the check period has been arrived at in the charge sheet at Rs. 49,42,591.40, as under: 11.1.2 INCOME OF ACCUSED/TRIBHUWAN SINGH DURING THE CHECK PERIOD Sl.No. Description Total Value (Rs.)
i). Salary from 01.01.99 to 12.04.01 6,68,938.00
ii). Salary from 13.04.01 to October, 2002 3,30,295.82
iii). Salary from October, 2002 to July, 2003 1,92,465.00
b). Income from loan from HDFC Bank 4,50,000.00
c). Income from ULIP on maturity under scheme 66,579.94 ULIP71
d). Income from LIC Money Back Policy No. 20,000.00 250345247
e). Income from PPF withdrawal A/c No.1971/12 31,500.00
f). Income from interests on bank accounts and fixed deposits i SB A/c No.8018, Vysya Bank, Navyug Market, 4,958.32 Ghaziabad.
ii SB A/c No.791, SBBJ, Navyug Market, 16,802.05 Ghaziabad.
iii SB A/c No.371/12, SBI, Navyug Market, 10,632.00 Ghaziabad.
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iv SB A/c No.4862, Indian Overseas Bank, 4,124.00
Sector37, Noida
v SB A/C No.9002 (PPF), SBBJ, Noida 7,241.00
vi SB A/C No.33, SBBJ, Noida 14,774.85
vii SB A/C No.56584, SBI, Moti Jheel Branch, 14,081.44
Kanpur
viii. SB A/C No.93, Nainital Bank, Ghaziabad 14,293.00
Total Interest (86,906.66)
(by mistake in charge sheet it has been
mentioned as Rs.74,304.66)
g). Income from sale of shares 75,559.20
h). Income from rent of H.No.A45, Sector51, 2,50,500.00
Noida
i). Income from sale of Old Car 75,000.00
j). Income from maturity of 6 years NSCs 4,030.00
Total 22,39,172.62
11.1.2
INCOME OF SMT.VINITA SINGH, WIFE OF ACCUSED/TRIBHUWAN SINGH AS PER HER I.T.RETURNS Sl.No. Description Total Value (Rs.) a Professional income from 01.01.99 to 10.07.03 6,29,726.00 (6,24,000.00) b Rental income of Noida House 3,84,000.00 c Dividend / interest 9,394.40 CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.126 of 177 d Interest on SB A/C 20,365.50 e Interest on Anagram Finance Limited 15,942.00 f Commission from Aasmaan Air Travels 2,430.00 g Interest on locker security 55.00 h Addition to capital (Dorling Kinderslay) 50,433.25 i Sale proceeds of shares 2,12,606.63 j Redemption of Chambal Fertilizers (NCD) 5,000.00 k Income Tax refund 9,585.00 l Interest on Income Tax Refund 1,385.00 m Sale proceeds of car 1,00,000.00 n Encashment of NSCs 40,600.00 o LIC Money back refund 30,000.00 p Matured deposit from Anagram Finance Ltd. 1,21,770.00 q Noida House Security 56,000.00 r Telephone security received 5,000.00 s Locker security received from Vysya Bank 1,050.00 t Gift received from parents/others 58,000.00 u Gift received on muhart of Noida House 12,450.00 v Housing loan from HDFC 4,50,000.00 w Loan received from Sakuntla Devi 25,000.00 x Loan received from T.Singh 3,95,127.18 y Loan received back from Anant Singh 67,500.00 Total 27,03,418.73 Total Income (Tribhuwan Singh + Vinita Singh) 49,42,591.40 CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.127 of 177 INCOME OF ACCUSED/TRIBHUWAN SINGH A - Income From Salary 11.2.1 Item No.(i) - Rs.6,68,938/ was the salary received by accused/Tribhuwan Singh between 01.01.99 to 12.04.01 which has been proved vide Ex.PW10/A & B (D23).
11.2.2 Item No.(ii) - Rs.3,30,295.82 was the salary received by accused/Tribhuwan Singh between from 13.04.01 to September, 2002 which has been proved vide Ex.P1/3 (D24) which is admitted document.
11.2.3 Ld.defence counsel has rightly submitted that salary
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of accused/Tribhuwan Singh for December, 1998 in the sum of Rs.18,760/ was earned in January, 1999, hence that amount has to be taken as salary received by him during the check period. Thus, this amount has also to be added to the salary income of accused for aforesaid period and the amount of salary received by him during 01.01.99 to 12.04.01 would be Rs.6,87,698/ (Rs. 6,68,938 + 18,760/).
11.2.4 Item No.(iii) - Rs.1,92,465/ was the salary received by accused/Tribhuwan Singh from October, 2002 to July 2003 which has been proved vide Ex.PW12/A1 to A6 (D25). 11.2.5 B - Income from loan from HDFC availed for Rs.4.50 lacs has been proved by examining PW45/Sh.D K Gupta vide CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.129 of 177 Ex.PW45/A (D27).
11.2.6 C - Income from ULIP on Maturity under scheme ULIP71 for Rs.66,579.94 has been proved by examining PW7 and Ex.PW7/A (D174).
11.2.7 D - Income from LIC money back policy no.250345247 for Rs.23,000/ has been proved vide admitted document Ex.P1/51 (D120).
11.2.8 E - Income from PPF withdrawal form A/c No.1971/12 has been shown as Rs.31,500/, ld.defence counsel has submitted that the income from PPF withdrawal is Rs.67,500/ and not Rs.
31,500/. The PPF account of accused is like any other bank
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account in which only the balance at the beginning and end of the check period is relevant. The balance of this account at the beginning has already been taken as asset of accused at the beginning of the check period (see para 4.5 supra). Any debit or credit in the said account can not be taken as income or asset of accused. The same account was transferred to SBBJ, NOIDA as A/C No.900002, the last balance of which has already been taken (see para 7.4.6) and even interest accrued in this account has been included in the income of accused (see para 11.3.2 and para 11.3.4 infra). Thus, in view of the above findings no such income of Rs.31,500/ has accrued to accused/Tribhuwan Singh during the check period. The same has to be excluded from his income.
CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.131 of 177 11.3.0 F - Income from the interest of the bank accounts and fixed deposits.
11.3.1 (i) Rs.4,958.32 was the interest earned by accused in his CPF account. This amount will be deleted in view of the facts discussed in para no.4.3 (supra).
(ii) Rs.16,802.05 has been taken as amount of interest earned by accused in his SB A/C No.791 maintained with SBBJ, Navyug Market, Ghaziabad. This amount has been proved vide Ex.P1/11 and Ex.PW48/A & B (D33) which is not disputed. 11.3.2 Rs.10,632/ is the amount of interest earned by accused in his SB A/C No.1971/12 with SBI, Navyug Market, CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.132 of 177 Ghaziabad, which has been proved vide Ex.PW4/J (D35) and Ex.PW4/D1 (Passbook). This amount is also not disputed. 11.3.3 Rs.4,124/ is the amount of interest earned by accused in his SB A/C No.4862 with Indian Overseas Bank, which has been proved vide Ex.P1/15 (D41). The same is also not disputed.
11.3.4 Rs.7,241/ is interest earned by accused in his SB A/C No.90002 (PPF A/C) maintained with SBBJ, Noida which has been proved vide Ex.PW4/J (D35) and Ex.PW4/D1. Same is also not disputed.
11.3.5 Rs.14,774.85 has been taken as interest earned in SB
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A/C No.33, SBBJ, Noida which has been proved vide Ex.P1/13 (D36).
11.3.6 Rs.14,081.44 is the amount of interest earned by accused in his SB A/C No.56584 maintained with SBI, Motijheel, Kanpur which has been proved vide Ex.P1/8 (D30) which is also not disputed.
11.3.7 Rs.14,293/ was the interest earned by accused in his SB A/C No.93 maintained with Nainital Bank Limited, Ghaziabad, which amount has been disputed by ld.defence counsel, in respect of which the document is Ex.PW16/DA. This is CPF account of accused which issue has already been discussed in para no.4.3 (infra). Hence this amount has to be excluded from CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.134 of 177 income of accused.
11.4.1 G - Income from sale of shares of accused has been taken as Rs.75,559.20 in the charge sheet but the ld.counsel for accused has submitted that this amount should be Rs.99,998/ as per the statement of PW46/S K Bajaj and document exhibited as Ex.DW2/B. 11.4.2 On the other hand, ld.Public Prosecutor has submitted that PW20/K P Singh was examined in this respect who has proved the income of accused from selling of the shares but the accused has wrongly shown the same in his I T Return as Rs. 99,998/, hence only Rs.75,559.20 may be taken as income of accused/Tribhuwan Singh from sale of shares during the check CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.135 of 177 period.
11.4.3 During his crossexamination by ld.defence counsel, PW47/S K Bajaj had stated that as per I T returns and statement of assessable income, the amount of Rs.1,86,553/ was received by accused as income from sale of shares and debentures during the check period. He has got it fortified by examining DW2/Ms.Daisy Bansal from office of Sh.S K Bajaj, who proved the details as Ex.DW2/B showing that accused sold shares of the value of Rs.1,86,554/ as against the purchase value of Rs. 86,555/. Thus, it has been submitted that the profit on sale of shares was Rs.99,998/.
11.4.4 It is worthwhile to note that IO has not clarified in the
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charge sheet as to how he has arrived at the figure of Rs. 75,559.20. It may be possible that some capital gain tax might have been deducted on it but he has not clarified the same anywhere in the charge sheet or documents, leaving the court to no other option but to accept the amount as stated by PW47 and as shown in Ex.DW2/B. Thus, the income of accused from sale of shares is taken as Rs.99,998/.
11.5.0 H - INCOME FROM RENT OF H.No.A45, SECTOR51, NOIDA 11.5.1 It has been submitted by the ld.counsel for accused that the rental income of Rs.2,50,500/ from property no.A45, Sector51, Noida as alleged by the prosecution in the charge sheet, is without any evidentiary basis whereas the actual rental CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.137 of 177 income should have been taken as Rs.3,34,000/ which is apparent from the crossexamination of PW47Satish Kumar Bajaj, duly corroborated by Ex.PW47/N, Ex.PW47/E, Ex.PW47/EA and Ex.P1/61. Hence, he has argued that the difference of Rs.83,500/ should be added in the rental income of accused/Tribhuwan Singh during the check period. 11.5.2 He has submitted that the accused/Tribhuwan Singh and his wife/Vinita Singh were joint owners of the said property i.e A45, Sector51, Noida and receiving the rentals in equal shares. The calculation sheet, Ex.PW47/M attached to the Income Tax Return of accused/Tribhuwan Singh, Ex.PW47/L for the assessment year 200102 (financial year 200001) shows that the income of accused/Tribhuwan Singh from rent received was Rs.
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75,000/. Similarly, he has shown that he has received rental
income (50% portion) in sum of Rs.1,30,000/ for the assessment year 200203 (financial year 200102) vide Ex.PW47/P which is tax calculation sheet attached with the Income Tax Return of accused/Tribhuwan Singh, Ex.PW47/N. For these two years, there is no dispute and dispute is only for the next two years. 11.5.3 Income Tax Return of accused/Tribhuwan Singh for the assessment year 200304 (financial year 200203) is Ex.PW26/E2 and the calculation of assessable income attached with the same is Ex.PW47/EA along with Form16 issued by employer (NDMC) of accused/Tribhuwan Singh. The income from rent received for the said house is shown as Rs.99,000/ in the calculation sheet whereas the said rental income is shown as CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.139 of 177 Rs.60,200/ in his Form16 as issued by his department, naturally on his declaration. The question before the court is as to what amount should be accepted.
11.5.4 It has been submitted by ld.Public Prosecutor that the Income Tax Return for assessment year 200304 was filed by accused on 12.10.03 as is apparent from the Ex.PW26/E2 which is after the raid was conducted at his premises on 10.07.03 whereby he would have anticipated that he may not be able to explain his disproportionate assets particularly in view of huge cash recovery, and has thus tried to increase his rental income by making a declaration in the Income Tax Return.
11.5.5 For assessment year 200405 (financial year 200304)
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he has declared income from rent as Rs.85,000/. It has been submitted by ld.counsel for accused that the proportionate share of the rent for the period from 01.04.03 to 10.07.03 (end of check period) comes to Rs.30,000/ which should be added to the income of accused. It is worthwhile to mention that this Income Tax Return was filed by accused much after the raid was conduct at his premises and FIR was registered with CBI. 11.5.6 Without any evidence of letting out his property and receiving some more rental income, it can not be accepted that accused had let out his house and earned rental income beyond what has been proved by CBI. If he would have disclosed about any other tenant, CBI would have examined him. If he was of the view that any of his tenant, who paid him rent during the check CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.141 of 177 period, has not been examined by CBI, he could summon him as defence witness through process of law. Simply because he has shown some figure as rent received in his ITRs, the court can not accept it as his income, when he had full opportunity to produce evidence in support of his claim either by examining tenant or showing receipt of such rental income in his bank account or bank account of his deceased wife.
11.5.7 It is worthwhile to mention that there have been two tenants in his house during the relevant period, as known to the prosecution and both the witnesses have been examined by the prosecution.
11.5.8 PW13/M B L Sharma has proved before the court the
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license agreement executed between a social club i.e DHUB on one hand and accused/Tribhuwan Singh and Smt.Vinita Singh on the other, which is Ex.PW13/1 (D156). The agreement was for taking house of accused/Tribhuwan Singh on rent for 11 months w.e.f. 16.11.2000 to 15.10.01. He stated that the rent was fixed as Rs.30,000/ p.m. for first six months and Rs.33,000/ p.m for remaining five months. He has not been crossexamined. Thus, he has proved that an amount of Rs.3,45,000/ was received by accused/Tribhuwan Singh and his wife/Vinita Singh in respect of their Noida House towards rent from DHUB.
11.5.9 The next witness in respect of rent is PW41/Vijay Kumar Chutani, who has proved that the said Noida house of accused was taken on rent by his company M/s Ajin Systems Pvt CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.143 of 177 Ltd. for residence of Sh.W K Lee (a foreigner) from 15.01.02 to July, 2002 at a monthly rent of Rs.26,000/. He specifically stated that the rent was paid to accused/Tribhuwan Singh and Smt.Vinita Singh on 50:50 basis i.e. Rs.13,000/ p.m. each and a total sum of Rs.1,56,000/ was paid to them on account of rent by his company. He was also not crossexamined. Except these two witnesses no other witness was examined towards rental income of accused persons and the accused also did not examine any witness in support of his claim that some more rental income was earned by him or his wife.
11.5.10 It has been submitted by ld.Public Prosecutor that since wife of accused, who had actively aided and abetted him in amassing wealth by unlawful means, could not be arrayed as CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.144 of 177 accused due to her death, as such the rental income declared by her in her ITRs was presumed by IO as correct income. The law does not confer any such presumption to declaration made by assessee or her legal heir in ITRs about their correctness. When the respective ITRs for financial years 200203 and 200304 are shown to have been filed much after the date of conducting search and seizure operations carried out by CBI in which admittedly cash amount of Rs.21.60 lacs was found in their house and lockers, a prudent approach would have been to thoroughly investigate the sources instead of accepting the ITRs and balance sheets as gospel truth, without the amount having been reflected in account books of Smt.Vinita Singh or the bank accounts of accused and his wife. Smt.Vinita Singh was diagnosed with cancer having under gone major surgery on 01.07.02 followed by CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.145 of 177 six sessions of chemotherapy and then suffered with Hepatitis 'C' in January, 2003 as is shown in evidence of DW1/Mrs.Sadhna Sood, it was not possible for her to earn anything from her work as architect. Under such circumstances the investigating officer has caused grave prejudice to the fair investigation of case by accepting the income as per ITRs of Smt.Vinita Singh, which have been cooked up with the help of his tax consultant, much after CBI raid.
11.5.11 Thus, I have reached to the conclusion that the total rent was received by accused/Tribhuwan Singh and Smt.Vinita Singh jointly was Rs.5,01,000/ only (i.e. Rs.2,50,500/ each) and thus the rental income of accused/Tribhuwan Singh and his wife/Vinita Singh stands proved to that extent only.
CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.146 of 177 11.6.1 I - Income from sale of old car - Rs.75,000/ has been taken as income of accused from sale of old car. Same has been admitted by accused as per the charge sheet by making the specific prayer.
11.6.2 J - Income from maturity of NSCs worth Rs.4,030/. This amount has been proved by document Ex.P1/56 (D127) which has also not been disputed by the parties.
12.0 ADDITIONAL INCOMES AS CLAIMED BY ACCUSED /TRIBHUWAN SINGH 12.1.1 Accused has claimed addition of certain amounts to his income during the check period, which are as under: CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.147 of 177 12.1.2 (i) Accused has claimed that an amount of Rs.2.25 lacs was withdrawn by him from his CPF account which has also been permitted, as discussed in para no.4.3 (supra). 12.2.0 (ii) ADDITIONAL INCOME AND EXPENDITURE OF ACCUSED PER HIS ITR FOR FINANCIAL YEAR 19992000 12.2.1 Ld.counsel for accused has submitted that the prosecution has ignored the fact that an amount of Rs.30,000/ was received by accused/Tribhuwan Singh as gift from his mother during financial year 19992000, hence the said amount of Rs. 30,000/ should be added to the income of accused/Tribhuwan Singh during the check period. For this, he has relied upon income tax return of accused and testimony of PW47/Satish CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.148 of 177 Kumar Bajaj, Advocate. Sh.Bajaj, who was Tax Consultant of accused/Tribhuwan Singh and his wife, has admitted in his cross examination that during financial year 19992000, Smt.Shakuntala Devi (mother of accused) gifted Rs.30,000/ to accused/Tribhuwan Singh as reflected in the note appended to the computation of income filed along with income tax return for the said year and the cheques' details are also given. 12.2.2 The prosecution has got exhibited the I T Return of accused/Tribhuwan Singh for the financial year 19992000 (assessment year 200001) as Ex.PW47/J (Saral Form) and Ex.PW47/K (Computation of Income sheet attached with Saral Form) (D146). Thus, both the prosecution and defence are relying upon the same documents i.e. Income Tax Return and CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.149 of 177 calculation attached with the same.
12.2.3 Once the computation of Income Tax Return, Ex.PW47/K has been relied upon by the prosecution and the defence, it is reasonable to accept the figures given therein showing that accused/Tribhuwan Singh had received a sum of Rs.30,000/ as gift from his mother/Smt.Shakuntala Devi by way of two account payee cheques in the sum of Rs.15,000/ each drawn on her SB A/C No.26965 at Punjab National Bank, Navyug Market, Ghaziabad. But at the same time I find that accused/Tribhuwan Singh had given a loan of Rs.75,000/ to his son, the details of which as given in the same computation sheet, Ex.PW47/K, are as under: CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.150 of 177 Sl.No. Amount (Rs.) Cheque No. Date Drawn On
01. 30,000.00 379656 11.06.99 Indian Overseas Bank, Noida from SB A/C No.4862
02. 15,000.00 702768 16.12.99 Indian Overseas Bank, Noida from SB A/C No.4862
03. 30,000.00 084909 16.12.99 SBBJ, Noida from SB A/C No.33 12.2.4 Thus, it is clear that the loan amount was given by accused to his son in the sum of Rs.75,000/ from June to December, 1999 as is admitted by him in his Income Tax Return and there is nothing in the record to show that the said amounts were ever repaid to him by his son. Hence, this amount of Rs. 75,000/ should also be taken as expenditure incurred by accused during the check period, as per the same analogy. But I find that there is no other material to support either of these two transactions except the calculation sheet attached to ITR, CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.151 of 177 Ex.PW47/J and Ex.PW47/K, which is jugglery of the tax consultant, having no substance. Even otherwise if both the entries are taken as correct, the expenditures of accused will be increased by Rs.45,000/. But I prefer to ignore receiving gift of Rs.30,000/ from his mother and giving loan of Rs.75,000/ to his son for the lack of any admissible and reliable evidence. 12.3.1 (iv) Accused has claimed that an amount of Rs. 35,230/ was received by him as arrears of salary received from th NCR Planning Cell, Ghaziabad due to implementation of 5 Pay Commission Scales and arrears of Family Planning Pay in the sum of Rs.1,726/ which has been proved by evidence of DW9/Rajesh Nath Mishra, Architect Planner, Headquarters of Town & Country Planning Department, Lucknow vide Ex.DW9/1 CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.152 of 177 and DW9/2 respectively. Same is not disputed. Hence the accused is granted benefit of these two payments made to him. Similarly, accused has claimed Rs.5,126/ as arrears of his family planning pay received from NOIDA Authority which has been proved vide Ex.DW6/1 which is also not disputed, hence it be added to his income of check period.
12.3.2 (v) Reimbursement of Mobile and Telephone Bills:
Ld.counsel for accused has submitted that accused was reimbursed with his mobile and telephone bills, in respect of which he has proved the documents exhibited as Ex.DW5/3 and Ex.DW4/1 & 2.
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12.3.3 In this respect, ld.Public Prosecutor has submitted
that reimbursement was of the amount which was actually spent by him as is appearing from the certificate which is for reimbursement of telephone and mobile bills. In that case it would also be appropriate to exclude the expenditure of the accused taken on account of payment of telephone bills shown at item no.viii for Rs.12,914/ and item no.xi (of expenditures towards mobile phone number 9810033033) for Rs.10,142.73 (also see para 9.2.8 and 9.4.1, supra).
12.3.4 It has been rightly agitated by ld.Public Prosecutor that reimbursed amount is against actual expenditure and the same should not be included in the income earned by accused during the check period. However, the expenditure of accused CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.154 of 177 shown at item no.viii and xi in the charge sheet at page no.7 shall also stand deleted.
12.3.5 (vi) Ld.counsel for accused has sought to add Rs.
17,901/ towards reimbursement of travelling allowance received from Delhi Urban Arts Commission (DUAC) during the check period which has been proved vide Ex.DW5/1 by examining DW5/Amit Mukherjee. This has been opposed by ld.Public Prosecutor, same being reimbursement of conveyance allowance during July, 1998 till 12.04.01 and that it should not be included in the income of accused. I find that the expenditure on petrol done by accused on running his Maruti Zen Car has already been taken as his expenditure during check period. Hence, it would be just and reasonable to accept this amount of Rs.17,901/ as the CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.155 of 177 income of accused received by way of conveyance allowance. 12.3.6 (vii) Ld.defence counsel has sought to add the income of accused for reimbursement of telephone bills made by DUAC during check period. In this respect, I agree with ld.Public Prosecutor that the reimbursement is against actual expenditure incurred by accused on his telephone and, therefore, any reimbursement of his bills shall not be included. 12.3.7 (viii) Ld.counsel for accused has submitted that accused is entitled to add an amount of Rs.15,740/ in his income received during the check period as he had received travel allowance from DUAC on his transfer from Ghaziabad to DUAC, New Delhi. This has been opposed by ld.Public Prosecutor CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.156 of 177 stating that this was by way of reimbursement, hence this amount can not be included in the income of accused. From perusal of Ex.DW5/2, I find there is nothing in it to the fact that accused had got the same amount of Rs.17,240/ towards reimbursement of expenses of shifting his luggage from Ghaziabad to Delhi. The distance between Ghaziabad and Delhi is not of that nature in which it can be expected that accused will spend Rs.15,740/ on shifting his household articles from Ghaziabad to Delhi. Some amount might have been spent by him but there is no record about it. Testimony of DW5/Amit Mukherjee read with DW5/2, shows that reimbursement of TA bill was for Rs.17,240/ and the brake up of the amount, as per testimony of DW5 was Rs.240/ towards mileage allowance @ Rs.8/ KM for 30 KM, Rs.1,500/ for transportation of household goods from Ghaziabad to Delhi and CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.157 of 177 Rs.15,500/ towards transfer grant which is equivalent to one month's salary of the officer. Thus, except for Rs.1,500/ reimbursed to him for transport of his household goods from Ghaziabad to Delhi, the remaining amount is to be taken as his income during the check period. I accordingly hold that accused is entitled to add an amount of Rs.15,740/ towards his income during the check period.
12.3.8 Accordingly accused is found entitled for addition of his income by Rs.3,00,723/ (i.e. Rs.2,25,000/ + 35,230 + 1,726 + 5,126 + 17,901 + 15,740) 12.3.9 The total income of accused/Tribhuwan Singh during the check period is arrived at Rs.25,44,945/ as under:
CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.158 of 177 Sl.No. Description Total Value (Rs.) i). Salary from 01.01.99 to 12.04.01 6,87,698.00 ii). Salary from 13.04.01 to October, 2002 3,30,295.82 iii). Salary from October, 2002 to July, 2003 1,92,465.00 b). Income from loan from HDFC Bank 4,50,000.00 c). Income from ULIP on maturity under scheme 66,580.00 ULIP71 d). Income from LIC Money Back Policy No. 20,000.00 250345247 e). Income from PPF withdrawal A/c No.1971/12 Nil f). Income from interests on bank accounts and fixed deposits i SB A/c No.8018, Vysya Bank, Navyug Market, Nil Ghaziabad. ii SB A/c No.791, SBBJ, Navyug Market, 16,802.00 Ghaziabad. iii SB A/c No.371/12, SBI, Navyug Market, 10,632.00 Ghaziabad. iv SB A/c No.4862, Indian Overseas Bank, 4,124.00 Sector37, Noida v SB A/C No.9002 (PPF), SBBJ, Noida 7,241.00 vi SB A/C No.33, SBBJ, Noida 14,775.00 vii SB A/C No.56584, SBI, Moti Jheel Branch, 14,081.00 Kanpur viii. SB A/C No.93, Nainital Bank, Ghaziabad Nil Total Interest CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.159 of 177 (by mistake in charge sheet it has been ....... mentioned as Rs.74,304.66) g). Income from sale of shares 99,998.00 h). Income from rent of H.No.A45, Sector51, 2,50,500.00 Noida i). Income from sale of Old Car 75,000.00 j). Income from maturity of 6 years NSCs 4,030.00 22,44,222.00 +Additional Income 3,00,723.00 Total 25,44,945.00
13.0 INCOME OF SMT.VINITA SINGH DURING THE CHECK PERIOD 13.1.1 Income of Smt.Vinita Singh has been taken by IO, as reflected in her I T Returns to the tune of Rs.27,03,418.73 vide Ex.PW26/B1 to B4, which has been proved through PW26/R K Singh, Income Tax Officer.
13.1.2 There is no dispute between the parties regarding
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entries in the ITRs except for the rental income of Noida which has been shown as Rs.3,84,000/ as reflected in the ITRs at item
(b) as the income from rent has been received by Smt.Vinita Singh to the tune of Rs.75,000/ during financial year 200001, Rs. 1,30,000/ during financial year 200102 and Rs.99,000/ during financial year 200203. The amount in total comes to Rs. 3,04,000/. Income from rent has been shown as Rs.30,000/ in the ITRs of Smt.Vinita Singh, Ex.PW26/DA (D160) at item no.3 of the liabilities side of the balance sheet. Ex.PW26/DA reflects that it is the balance sheet prepared as on 10.07.03. Many objections have been made by ld.Public Prosecutor on this balance sheet and it appears that IO has gone only by what is given in the balance sheet, without any further application of mind. For example an amount of Rs.12,450/ is given at item CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.161 of 177 no.'4' as gift received on muhurat of NOIDA house, whereas NOIDA house was already complete by year 2000 and occupied by tenants and no expenditure on Muhurat ceremony has been shown. Similarly at item no.'9', there is an amount shown as Rs. 56,000/ received towards NOIDA house security, at item no.'t' an amount of Rs.58,000/ is mentioned as gift received from parents/others, at item no.'n' an amount of Rs.25,000/ is mentioned as loan received from Shakuntala Devi, at item no.'y' an amount of Rs.67,500/ is mentioned as loan received back from Sh.Anant Singh ,which have been accepted by IO without any verification from bank accounts of Smt.Vinita Singh. 13.1.3 Ld.Public Prosecutor has rightly relied upon provisions of Section 269 SS of Income Tax Act which provides that 'no CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.162 of 177 th person shall, after 30 day of June, 1984, take or accept from any other person any loan or deposit otherwise than by an account payee cheque or by bank draft' where aggregate amount thereof is twenty thousand or more. IO ought not to have accepted any such entries in financial statements of Smt.Vinita Singh without proper verification from her bank accounts or accounts of the persons from whom she allegedly received those amounts. These financial statements of Smt.Vinita Singh were obviously cooked up by accused with the help of his tax consultant much after her demise, which were as such accepted by IO and put on record, which only helped the accused in explaining some portion of his disproportionate assets. However, since it is admitted position in the charge sheet, I would not like to interfere with the same.
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13.1.4 Ld.counsel for accused has submitted that in fact
Smt.Vinita Singh had also received an amount of Rs.50,000/ towards advance of rent from Smt.Asha Sood that is her mother in respect of the same house no.A45, Sector51, Noida, which is reflected at item no.8 of the liabilities side of the balance sheet for the period ending on 10.07.03, Ex.PW26/DA and that has also been added by IO with the total amount of rent received by Smt.Vinita Singh during the check period.
13.1.5 The problem with the investigation is that the IO has not disclosed any brake up of the various amounts mentioned by him in the charge sheet and the court has to take a view on the basis of evidence placed on record. It is seen that Ex.PW26/DA CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.164 of 177 was prepared by consultant of deceased/Vinita Singh which was filed with ITR by accused/Tribhuwan Singh much after her death. Accused/Tribhuwan Singh had provided a copy of the same to the CBI much after the registration of FIR. In the said balance sheet, it has been tried to explain the huge cash recovered by CBI on 10.07.03 from the residence of accused and the lockers maintained by him and his wife with various banks. Such averment that a sum of Rs.50,000/ was paid to deceased as advance by her mother does not meet the requirement of the law as there is nothing on record like the movement of the money from Smt.Asha Sood to the account of Smt.Vinita Singh through any bank transaction or lease deed etc. and, therefore, it can not be accepted that Smt.Vinita Singh had actually received any payment of advance rent. It has already been mentioned while CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.165 of 177 calculating the portion of rent received by accused/Tribhuwan Singh (see discussion in para 11.5 supra) that no rental beyond what is proved through legally admissible evidence, can be added to the income of accused or his wife. I accordingly hold that Smt.Vinita Singh had received an amount to Rs.2,50,500/ towards rental of their NOIDA house for the for reasons as discussed in para no.11.5 of judgment (supra). 13.2.1 Further, as already discussed in para no.10.1.4 and 10.1.5, the amount of Rs.3,95,127/ as mentioned at item no.(x) as 'loan received from T. Singh' will also be excluded. 13.2.2 In view of the above discussion, I have reached to the conclusion that Smt.Vinita Singh had received income of Rs.
CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.166 of 177 21,74,792/ during the check period as under: INCOME OF SMT.VINITA SINGH, WIFE OF ACCUSED/TRIBHUWAN SINGH AS PER HER I.T.RETURNS Sl.No. Description Total Value (Rs.) a Professional income from 01.01.99 to 10.07.03 6,29,726.00 b Rental income of Noida House 2,50,500.00 c Dividend / interest 9,394.40 d Interest on SB A/C 20,365.50 e Interest on Anagram Finance Limited 15,942.00 f Commission from Aasmaan Air Travels 2,430.00 g Interest on locker security 55.00 h Addition to capital (Dorling Kinderslay) 50,433.25 i Sale proceeds of shares 2,12,606.63 j Redemption of Chambal Fertilizers (NCD) 5,000.00 k Income Tax refund 9,585.00 l Interest on Income Tax Refund 1,385.00 m Sale proceeds of car 1,00,000.00 n Encashment of NSCs 40,600.00 o LIC Money back refund 30,000.00 p Matured deposit from Anagram Finance Ltd. 1,21,770.00 q Noida House Security 56,000.00 CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.167 of 177 r Telephone security received 5,000.00 s Locker security received from Vysya Bank 1,050.00 t Gift received from parents/others 58,000.00 u Gift received on muhart of Noida House 12,450.00 v Housing loan from HDFC 4,50,000.00 w Loan received from Sakuntla Devi 25,000.00 x Loan received from T.Singh Nil y Loan received back from Anant Singh 67,500.00 Total 21,74,792.00 Total Income (Tribhuwan Singh + Vinita Singh) 47,19,737.00 13.2.3 If we add the amount of income received by accused/Tribhuwan Singh and received by Smt.Vinita Singh, the total of which comes to Rs.47,19,737/ (i.e Rs.25,44,945 + Rs. 21,74,792) (Statement C).
13.2.4 Ld.counsel for accused has relied upon judgments
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cited as (2006) 3 SCC (Crl.)225, (2005) 13 SCC 624 and AIR 1976 SC 2273, which deal with specific facts of the particular case and hence not material to the facts and circumstances of the present case.
13.2.5 He has also relied upon judgments cited as (2005) 3 SCC 628, (1992) 2 SCC 86 and (2012) VI AD Delhi 255 which lay down general principles for appreciation of evidence in cases based on circumstantial evidence.
13.2.6 In this respect it suffice to say that I have kept in mind the general principles laid down by Hon'ble High Court and Supreme Court for appreciating the cases based on circumstantial evidence.
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13.2.7 Ld.counsel for accused has also relied upon judgment
cited as (2006) 3 SCC (Cri) 30, (1972) 3 SCC 22, (2009) 16 SCC 487 and (2011) 7 SCC 100, which lay down general principles regarding standard of proof which is required from defence in such matters. I have kept in mind the law laid down by Hon'ble Supreme Court in these cases while appreciating the evidence in the present case.
13.2.8 Now, since all the variables for calculation of disproportion assets of accused have been determined, the value of disproportionate assets possessed by accused/Tribhuwan Singh at the end of check period is calculated, as under: CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.170 of 177 (Rs.) A Assets at the beginning of check period 19,93,362 B Assets at the end of check period 71,71,255 Assets acquired during the check period (B-A) 51,77,893 C Income during the check period 47,19,737 D Expenditure during the check period 23,39,878 Likely saving during the check period (C-D) 23,79,859 Disproportionate Assets 27,98,034 13.2.9 Thus, it has been proved that taking into account the income of accused and his wife, he was found in possession of disproportionate assets to the tune of Rs.27,98,034 at the end of check period i.e. 10.07.03, for which he could not offer any satisfactory explanation. Thus, his assets have been found disproportionate to the extent of 59% (approx.) which is in fact very high proportion.
13.2.10 In view of my above findings, I hold
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accused/Tribhuwan Singh guilty of offence punishable u/s 13(2) r/w 13(1)(e) of PC Act, 1988 and convict him for the same accordingly.
Announced in the open ( R P PANDEY)
Court on 13.08.2013 SPL.JUDGE (CBI)01
ROHINI COURT:DELHI
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IN THE COURT OF SH.R.P.PANDEY : SPECIAL JUDGE (CBI)-I ROHINI COURTS :DELHI CBI CASE No.11/09 RC5(A)/2003/CBI/ACUII/CBI/N.Delhi U/s 109 IPC and Sec.12(2) R/W 13(1)(e) of PC Act, 1988 CENTRAL BUREAU OF INVESTIGATION, NEW DELHI VS TRIBHUWAN SINGH S/O LATE SH.MAHAVEER SINGH R/OKC165, KAVI NAGAR, GHAZIABAD UP ... ACCUSED Date of institution - 01.07.05 Date of Judgment - 13.08.13 Date of Order on Sentence - 14.08.13 CASE ID02404R1286332005 ORDER ON QUANTUM OF SENTENCE
1. Vide a judgment dated 13.08.13, accused/Tribhuwan CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.173 of 177 Singh was convicted for offence punishable u/s 13(2) r/w 13(1)(e) of PC Act, 1988 which prescribes the minimum imprisonment for a period not less than one year and which may extented to 7 years as also with fine.
2. Today, the matter was fixed for hearing arguments on the quantum of sentence. I have heard Sh.N P Srivastava, Ld.Public Prosecutor for CBI and Sh.Vivek Sood, ld.counsel for convict.
3. It has been submitted by ld.Public Prosecutor that convict has been found in possession of assets which are disproportion by Rs.27,98,034/- i.e approx. 59% to his savings and accordingly maximum imprisonment should be imposed upon him. On the other hand, ld.counsel for convict has submitted that convict/Tribhuwan Singh is aged about 62 years and suffering CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.174 of 177 from various ailments such as knee problem, lumbar spondilitis, heart problem having already got insertion of stunt and enlarge prostate. He has submitted that convict has already suffered a lot and his wife has expired from cancer in December, 2003. He has also submitted that convict has undergone rigours of investigation and trial for about 10 years. He has, therefore, submitted that a lenient view may be taken and that convict may be punished with minimum sentence as per law.
4. I have considered the rival contentions and keeping in mind the mitigating and aggravating circumstances, I sentence convict/Tribhuwan Singh to undergo rigorous imprisonment for a period of 3 (three) years with fine of Rs.5 lacs for offence committed by him under Section 13(2) r/w Section 13(1)(e) of PC Act, 1988 and in case of default in payment of fine, to further undergo simple imprisonment for 6 (six) months.
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5. It is further ordered that keeping in view provisions of Section 16 of PC Act, 1988 an amount of Rs.27,98,034/-, by which the assets of convict/Tribhuwan Singh have been found in excess, be forfeited to the credit of exchequer. If any amounts of accused or his deceased wife are lying seized/deposited with CBI or with the court, the forfeited amount be first adjusted from those deposits and the remaining balance, if any, to be recovered by attachment/sale of properties of assets, unless the same is deposited by him within 30 days of this order. It is also made clear that if any portion of the said amount is lying deposited in any interest bearing bank accounts, the interest earned on it after 10.07.03 shall also be forfeited to the exchequer, over and above the amount of Rs.27,98,034/-.
6. The bail bonds of convict/Tribhuwan Singh are cancelled and he is taken into custody.
7. A copy of judgment and this order be delivered to the CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.176 of 177 convict free of cost. File be consigned to record room.
Announced in the open court (R.P.PANDEY) on 14th August, 2013. SPECIAL JUDGE (CBI)-0I ROHINI COURTS:DELHI CBI No.11/09 CBI Vs. Tribhuwan Singh Page No.177 of 177