Delhi District Court
Cbi vs Ram Gopal Verma on 13 April, 2007
1
IN THE COURT OF SH G P MITTAL
SPECIAL JUDGE: DELHI
R C No. 31 (A)/97 CBI/|DCB/N.D.
C C No. 51/99
CBI Vs Ram Gopal Verma
Judgment
1.Sh. Ram Gopal Verma (hereinafter referred to as the accused) has been sent up to this court to face trial for the offence punishable U/s 13 (2) read with section 13 (1) (e) of the Prevention of Corruption Act,1988.
2. Succinctly put, the case of the prosecution is that the accused had joined as Junior Engineer in Indian Posts and Telegraph Department in March, 1975. After completion of his training he worked in various capacities in Bombay (now Mumbai). He joined as a Junior Engineer in Nehru Place Telephone Exchange in July, 1987. He was promoted as Junior Telecommunication Officer in the pay scale of Rs.1640-2900 and was posted in Chankayapuri Exchange. In August, 1994, he was further promoted as Assistant Engineer and was posted as AE( cables) in the office of General Manager, Nehru Place in the pay scale of Rs. 2000-3500. The case 2 of the CBI is that during the check period between January, 1990 to April, 1997 the accused had acquired assets/pecuniary resources disproportionate to the known sources of his income. The assets, income, expenditure and the disproportionate assets have been given in Annexure I, annexure II, annexure III and annexure IV, filed alongwith the report U/s 173 Cr PC. I would like to extract the same hereunder as it will be helpful in appreciating the case of the prosecution and the defence of the accused :
ANNEXURE I ASSETS 1 Plot no. RZ 124 Gali no.104,Raj Nagar, PT Rs.22,500.00 I,Palam Colony, New Delhi.
2 House hold items as per Observation Memo Rs.61,600.00 dated 2.5.97 3 Gas Connection no.9780 in the name of RG Rs. 730.00 Verma 4 Bank Balance of Central Bank of India, Rs. 191.55 Safdarjung Enclave Branch, New Delhi in the name of accused.
5 Constructed house at RZ 124. Gali no.4 Raj Rs.13,48,710.00 Nagar Part I Palam Colony, New Delhi (146.53 Sq.Yds.) in the name of Smt. Bimla Verma , wife of accused.
6 Balance in SB A/c no.8143 CBI, Safdarjung Rs. 33,169.00 Branch, New Delhi.
7 NSCs in the name of accused Rs. 15,000.00 8 Sony Music System Rs. 14,700.00 3 9 Titan Watch Rs. 3050.00 10 Bajaj Chetak Scooter purchased in 1992 in the Rs. 19,736.00 name of accused DL 4 SG 5425 11 Bajaj Scooter DL 9S D 1272 in the name of son Rs. 23,669.00 of accused 12 Balance in a/c S-282 in the name of accused in Rs. 1670.00 M/s. Hitkari Coop. T&C Society Ltd. Safdarjung Enclave, New Delhi.
13 Gas connection in the name of daughter of Rs. 950.00 accused.
14 Cash recovered during the search of house no. Rs. 13,499.00 471-MPT, Sarojini Nagar, New Delhi.
Thus the total assets acquired during check Rs.15,37,213.00 period are Actual (Rs.15,59,174.55) INCOME ANNEXURE II 1 Salary of accused 1/90 to 8/95 Rs.2,75,331.00 2 Honorarium taken by accused Rs.14,400.00 3 Interest on account no.8143 in CBI Safdarjung Rs. 5881.75 Enclave.
4 Loans taken from DCHFC for purchase of DDA Rs.1,82,000.00 flat no.234 Sector 23 Pocket II Rohini New Delhi.
5 Loan taken from Sh. Kiran Pal Verma Rs.25,000.00 4 6 Loan taken from Smt. Chandra Kanta, w/o Shri Rs.25,000.00 Madan Lal.
7 Loan from DK Singh, SDO/MTNL/Nehru Place Rs.50,000.00 8 Loan taken from Balveer Singh Rs.30,000.00 9 Loan taken from Shri Jagveer Singh Rs.2,25,000.00 10 Loan taken from Shri Kiran Singh, SDO/MTNL Rs.40,000.00 11 Loan taken from Manak Chandra Verma Rs.30,000.00 12 Income from LIC Policy no.18091465 Rs.20,696.00 13 Final withdrawal from GPF account Rs.1,25,000.00 Thus total income of accused Rs.10,48,308.75 EXPENDITURE ANNEXURE III 1 Expenditure on education of children.
(i) On the education of Sh.Mukesh Verma Rs.61,945.00
(ii)On the education of Ms. Meenu Verma, d/o Rs.31,960.00 R.G.Verma.
(iii) on the education of Manoj Verma, son of Rs.11,132.00 accused 5
2 Sh. RG Verma has deposited an amount for Rs.5,40,174.84 purchase of a DDA flat but this flat was not given to Shri Verma so this amount is being taken towards his expenditure during the check period. Shri RG Verma has repaid an amount for DCHFC Rs. 7764.00 New Delhi 3 Smt. Vimla Verma was admitted in Batra Hospital, Rs.9861.35 New Delhi. Total amount expenditure other Treatment, Medicine and other 4 The total expenditure on electricity/water in Rs.3279.60 respect of house no. 124 Gali no.4 Raj Nagar, Palam Colony, New Delhi during the period of 1/90 to 4/97 5 Expenditure on water and electricity charges paid Rs.12983.00 by accused for flat no,.MPT 471 Type II, Sarojini Nagar, New Delhi.
6 Expenses towards petrol consumption and Rs.7300.00 maintenance of scooter no. DL 4SG 5425 and DL 9SB 1272 7 Expenditure towards household/kitchen expenses Rs.91,777.00 Thus the total expenditure during the check Rs.7,78,176.79 period.
Annexure IV 1 Income during check period Rs.10,48,308.75 2 Expenditure during check period Rs.7,78,176.79 3 Savings during check period Rs.2,70,131.96 6 4 Assets movable/immovable acquired during check Rs.15,37,213.00 period (actual Rs.15,59,174.55) Disproportionate Assets = Assets (during Rs.15,37,213.00 check) Vs. likely savings (during check) (actual Rs.15,59,174.55)
- Rs.2,70,131.96 =Rs.12,67,081.00 (actual Rs.12,89,042.59) (Approximately)
4. It is thus, stated that as against the savings of Rs. 2,70,131.96 accused possessed disproportionate assets to the tune of Rs. 12, 67,081/-.
5. Accused pleaded not guilty to the charge framed against him on 15.11.2000. The prosecution was therefore, required to produce its evidence.
6. In order to establish its case, the prosecution has examined as many as 32 witnesses. I shall deal with the relevant evidence at the appropriate stage when I shall take up income, expenditure and assets of the accused one by one. Suffice it to say, at this stage, that the accused had not very much disputed the evidence as adduced by the prosecution except that the complete income of the accused during the check period has not been taken into account. Infact, the salary of the accused in annexure II is mentioned only for the period 7 January, 1990 to August, 1995 whereas the check period was from 1990 to April, 1997. Furthermore, the accused has seriously disputed the cost of construction in respect of house No. RZ 124, Gali No.4, Raj Nagar, Part I, Palam Colony, New Delhi. It is also the case of the accused that income of his wife from rent as also from the business of goldsmith has not been considered. His son had got a gift of one two wheeler scooter from Smt. Shakuntala, his father's younger brother's wife who used to treat him (the accused) as his own son. Smt. Shakuntala and his daughter Smt. Chander Kanta were also financially assisting the accused and his family members as Smt. Shakuntala was not having any son whereas Chander Kanta has given birth to a child only after 30 years of his marriage.
7. On close of the evidence of the prosecution, the accused was examined U/s 313 Cr PC. The accused denied that he was in possession of asset disproportionate to known sources of his income. As stated above during his examination U/s 313 Cr P C also he took up the plea that the scooter for Rs. 23,669/- had been purchased by her aunt late Smt. Shakuntala Devi for her son Manoj. She had made a statement to this effect to the CBI during investigation of the case. He took up the plea that Titan Watch for Rs. 3,050/- was purchased by his son Mukesh from the amount given by his relatives at the time of his engagement. He admitted in reply to question No.2 that he had 8 paid various fees for his three children which was admitted by him vide documents Ex PA to PF U/s 294 Cr PC. He admitted that he had account No.8143 in Central Bank of India, Safdarjung Enclave Branch; he has NSCs for Rs. 15,000/- in his name. Regarding the amount of Rs 7,232/- paid to Batra Hospital vide Ex PW5/A to Ex PW5/C and the cash memos in respect of purchase of some medicines for about Rs. 2,000/- vide documents Ex PW3/A, Ex PW3/B, Ex PW4/A, Ex PW-6/A, Ex PW-9/A and Ex PW-9/B he took up the plea that the hospital bill was paid by his aunt Late Smt. Shakuntala Devi .and that the medicines were purchased by different relations and that his wife was also earning. He admitted having received a loan of Rs. 1,82,000/- from Delhi Cooperative Housing Finance Corporation Ltd. and repaying a sum of Rs. 7,764/- in three instalments till 1.5.97. Regarding another Bajaj scooter purchased vide receipt Ex PW16/A accused had stated that he had purchased the same by obtaining loan from his department and instalments of Rs. 260/- were being deducted from his salary. He had also taken GPF advance from his department. Accused denied that he was living in house No. RZ 124, Gali No. 2, Raj Nagar, New Delhi. He stated that the plot was purchased by his wife in 1985. The construction (on the ground floor) was raised in 1986 and late Sh. M M Sharma was inducted as a tenant in the house. He stated that he alongwith his wife was residing in a govt. accommodation. The 9 accused submitted that the valuation report Ex PW32/A was absolutely incorrect and that a very highly excessive and exorbitant report has been submitted by PW32 N K Jain who was an interested witness.
8. The accused took up the plea that before joining Govt. job in March, 1975, he had worked in private Sector in U P State Electricity Board. Even while he was a student, he was earning and helping his parents in the business of Jewellery. He stated that his wife was dealing in jewellery and that his son Mukesh Verma was a Civil Engineer. He would get overtime allowance honorarium and conveyance allowance and some assistance from his aunt Smt. Shakuntala Devi and cousin Mrs. Chander Kanta Devi.
9. The accused himself entered the witness box U/s 315 Cr PC as DW 5 and produced four other witnesses in his defence.
10. DW1 Rajesh Bhatia is a Civil Engineer. He proved report Ex DW1/A regarding valuation of house No. RZ124, Gali No. 4, Raj Nagar, New Delhi. He stated that the structure in question was a load bearing structure with a few RCC columns. He deposed that RCC structure is costlier. As per CPWD manual 10% rebate is to be given on account of self supervision and 10% rebate is to be given 10 in case any member of the family of the owner is a Civil Engineer. He deposed that item-wise detailed valuation is the more appropriate and correct method of valuing a property than the plinth area method.
11. DW2 Smt. Vimla Verma is the wife of the accused. She deposed that she was carrying business of sale and purchase of silver Jewellery from her house No. MPT 471 Sarojoini Nagar, New Delhi. She would earn Rs. 3000 to 4000/- per month approximately. She was owner of house No. RZ 124, Palam Colony, Raj Nagar and used to receive rent from the said house. She also corroborated the defence version that the accused would get help from his father's brother's wife Smt. Shakuntala and his cousin Chander Kanta. During cross examination she admitted that she did not have any bank account; she had no bill or cash memo for purchase of any silver articles. She was not assessed to income tax.
12. DW3 Smt. Chander Kanta also corroborated the defence version. She deposed that the accused was his father's elder brother's son. Shakuntala Devi was her mother. They (the witness) were two sisters. The accused was being treated as son by her mother and brothers by the two sisters. They would tie Rakhi to the accused. Her mother got purchased one Bajaj Scooter, for Manoj, the son of the accused.
1113. DW4 Tek Chand is a goldsmith. He deposed that he has got a licence of goldsmith. He has been getting the work of goldsmith done from the wife of the accused. During cross examination he admitted that there was no billing between him and Smt. Vimla Verma.
14. DW5 Ram Gopal Verma, the accused himself stated that in addition to his salary he would get over time allowance, conveyance diary allowance, honorarium Rs 1500 to 2250/- per quarter. He would also get bonus and children education allowance. The accused stated that plot No. RZ 124 referred to above ) was purchased by his wife Smt.Vimla Verma in the year 1985 for Rs. 22,500/- two rooms, kitchen, bath, WC were built in the year 1986 for an expenditure of Rs. 35,000/-. One room on the ground floor and a staircase were added in the year 1990. In the year 1996, drawing room on the ground floor, three rooms and a drawing room on the first floor, staircase leading to second floor, one bedroom, a drawing room etc. etc. were added on the second floor. Railings on the doors and windows, shutters, sanitary works, tiles in bathrooms and white wash finishing was done in the year 1998. Jet pump was also installed at that time.
1215. The accused stated on oath that in the year 1986 the house was let out at the rate of Rs. 800/- per month and the rent was increased by Rs. 100/- every year till the year 1997. Sh. M M Sharma was a tenant in the house from the year 1986 to 1996.
16. I have heard Sh. Rajesh Malhotra, Senior Public Prosecutor for CBI and Sh. Harish Khanna Advocate, on behalf of the accused and have perused the record.
17. Mere possession of property is not an offence U/s 13 (1) (e) of the Act but failure to satisfactorily accounts for the same constitutes an offence. (per Bhajan Lal Vs. State of Haryana 1992 Cri.LJ
527) Section 13 (1) (e) of the Act creates a statutory offence which must be proved by the prosecution It is for the prosecution to prove that the accused or any other person on his behalf has been in possession of pecuniary resources or property disproportionate to known sources of his income. When that onus is discharged by the prosecution it is for the accused to account satisfactorily for the disproportionality of the properties possessed by him .
18. At the outset, it has been urged by the Ld. Defence Counsel that the accused was in service of the Central Govt. since the year 13 1975 whereas his check period has been taken from January, 1990 to April, 1997 which is totally arbitrarily in as much as it shall not be possible to give the correct picture of pecuniary resources and the means to possess the same. I am not inclined to agree with this contention of the Ld. Defence counsel. In this connection a reference may be made to the State of Maharashtra vs. Pollonji Darabshaw Daruwalla, 1987 Supp SCC 379 where it was held as under:
" In order to establish that a public servant is in possession of pecuniary resources and property, disproportionate to his known sources of income, it is not imperative that the period of reckoning be spread out for the entire stretch of anterior service of the public servant. There can be no general rule or criterion , valid for all cases, in regard to the choice of the period for which accounts are taken to establish criminal misconduct under Section 5(1)(e) of the 'Act'.
The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf, which are alleged to be so disproportionate. In the facts and circumstances of a case, a ten year period cannot be said to be incapable of yielding such a true and comprehensive picture. The assets spilling over from the anterior period, if their existence is probabilities, would, of course, have to be given credit to on the income side 14 and would go to reduce the extent and the quantum of the disproportion."
19. Thus, it will be seen that the prosecution can have a limited period as the check period but the accused shall have to be given benefits of the assets anterior to the check period while computing the disproportionality of the resources.
20. First of all, I shall come to the income of the accused as given in annexure II which has already been extracted herein above in para 2 . Item No. 1 is the salary of the accused. As stated above, the check period is from January, 1990 to April, 1997 but the salary on item No. 1 has been taken only for the period January, 1990 to August, 1995. Thus, the salary of the accused for a period of 20 months i.e. from September, 1995 to April, 1997 has not been mentioned in the chart. This is not the end of the matter. All the supporting documents to show the salary of the entire check period have not been proved on record. For instance, PW14 Sh. Ravinder Singh was examined to prove the salary of the accused. He has placed on record figures for the gross salary for the period April, 1994 to December 1997, January, 1991 to Feb. 1992, January, 1995 to August, 1995. To say the least, the investigations have been carried out by the IO in this case in a very shoddy and irresponsible manner. The cases of disproportionate assets are of very sensitive 15 nature. The reputation of the public servant and the department to which he belongs are at stake; even if datas for some period are not available, the exact calculation about the pay of the accused could have been done on the basis of the service record but that has not been done. The income from salary for the period January, 1990 to August, 1995 shown as Rs. 2,75,331.00 cannot be accepted as such in the absence of the supporting record produced by the prosecution. During the course of arguments, some rough calculations were made by me with the help of the Ld. defence Counsel and the Ld. Sr. Public Prosecutor by taking average salary of the period anterior and posterior to the period for which the record had not been filed. For instance, the exact gross salary for the period January, 1991 to February, 1992 was ranging between Rs. 3886.00 to Rs. 4413.00 as per Ex.PW14/A-2. Therefore, the salary for the period January, 1990 to December 1990 could be assumed to be about Rs. 3400.00 per month on average basis. Similarly, salary for March, 1992 to December 1994 can be assumed to be about Rs. 4700.00 per month on average basis, if the salary for February, 1992 and January, 1995 was Rs. 4413.00 and Rs. 5873.00 respectively as per Ex.PW14/A2. Salary for August, 1995 as per Ex PW14/A2 duly proved by PW14 Sh. Ravinder Singh is Rs. 6118.00 so average salary with increments and increased in DA from September, 1995 to April, 1997 can be assumed to be Rs.6800/- per month.
1621. Thus, the gross income from salary of the accused during the check period would come to :-
1 January 1990 to December 1990 (assumed @ of Rs.40,800.00 Rs.3400.00) 2 January, 1991 to february,1992 (as per record) Rs.57,548.00 3 January 1995 to August 1995 (as per record) Rs.44,454.00 4 March 1992 to December 1994 (assumed @ Rs.4700/- p.m.) Rs.1,73,400.00 5 September, 1995 to 31.3.1997 (assumed @ Rs.1,29,200.00 Rs.6800.00 pm) TOTAL RS.4,50,102.00
22. I am not oblivious of the fact that this is a case of disproportionate asset under the Prevention of Corruption Act and if the prosecution has failed to prove by satisfactory evidence, the exact income of the accused, the accused shall have to be given a reasonable margin for the same. The exercise of making rough calculation has been made by me because the complete record of salary were not collected during the investigation and as an alternative the exact calculation were also not got made from the 17 accounts branch of the department of the accused on the basis of the service record. Thus, for rough calculations I take gross salary of the accused to be Rs. 4,50,102/- I am also aware that some deductions atleast towards GPF and income tax are required to be made from the salary but as stated above the gross salary has been taken only as a rough estimate as the prosecution has not collected the exact figure of the salary of the accused during the check period.
23 .Out of Item No.2 to 13 of annexure II, have not been disputed by the accused as these are being added towards the resources/income of the accused, though, the prosecution has led evidence in the shape of statement of account Ex PW1/B to prove the accrual of interest amounting to Rs. 5881.75 in account No. 8143 in Central Bank of India of the accused. The prosecution has also proved item No.4 i.e. loan of Rs. 1,82,000/- obtained from Delhi Cooperative Housing Finance Corporation vide document Ex PW12/A2. In addition to these items, the accused has proved vide document Ex DW6/DA that he had withdrawn a sum of Rs. 58,800/- from his GPF during the check period in additions to other withdrawals the said amount therefore, also has to be added towards the resources of the accused.
1824.The case of the accused is that his wife was earning Rs 3000 to Rs. 4000/- per month from the aforesaid business. Wife of the accused has also entered the witness box as DW2. DW4 Tek Chand was also examined by the accused to prove that wife of the accused was doing the business of sale/repair of the Jewellery. The Ld. defence counsel also referred to the cross examination of PW30 Inspector P K Gunwant, IO of the case who has stated in his cross examination that he did not know if wife of the accused used to deal in the business of Jewellery. He added that he enquired from her about the profession but she did not tell any. The testimony of the accused as DW5, Smt. Vimla Verma as DW2 and Tek Chand as DW4 on this point does not inspire much confidence. It is true that a defence witness is entitled to a treatment at par with prosecution witness and a witness cannot be disbelieved simply on the ground that he is a defence witness, yet a perusal of the cross examination of DW2 Smt. Vimla Verma would show that though she claimed her income from the business of sale of Jewellery to be Rs. 2000 to Rs. 4000/- per month (though the date of marriage of accused with Smt. Vimla has not come on record but it can be assumed that she must have married the accused in the year 1976 or so as the eldest son Manoj Verma was born in the year 1978). The basic exemption limit for income tax was Rs.8,000/- only in the assessment year 1977-78 and it was 19 Rs. 18,000/- in the assessment year 1986-87. DW2 Smt. Vimla Verma made a clean breast that she was not being assessed to income tax. No reason has been given either by DW2 or by DW5 Sh. R G Verma as to why DW2 was not paying the income tax. DW2 Smt.Vimla Verma or for that matter the accused had not placed on record any licence of goldsmith in the name of Smt. Vimla Verma. DW4 Sh. Tek Chand who was working as goldsmith said that he had a licence of goldsmith. During cross examination he admitted that there was no billing between him and the wife of accused regarding sale and repair of Jewellery items. DW2 Smt. Vimla Verma has also not produced any document to show that she was doing the business of goldsmith for all these long years. Taking all the facts together into consideration it would be difficult to hold even on the basis of preponderance of probabilities that the wife of the accused was doing the business of goldsmith or was having any income from the same.
25. .As far as the rental income of the wife of the accused is concerned I may say that as per the case of the prosecution, the construction of a two room set was made on the ground floor of property no. RZ 124 Raj Nagar between January 1986 to March 1986. This premises was visited by the IO only after one year of 20 the search at the residential house of the accused in Sarojini Nagar. Report Ex.PW32/A of PW32 JE NK Jain also makes a mention of two tenants in the premises on the date of the visit in the year 1998. The IO of the case however, showed his ignorance if there was a tenant in the premises. This was an important fact and since the tenants were there as per report of Junior Engineer taking shelter of loss of memory by the IO with regard to this particular fact would indicate some malafide on the part of the IO. A perusal of statement of PW18 Smt. Pushpa Sagar who is a neighbour of the accused would also indicate that there was one tenant in house no. RZ 124 Raj Nagar, Palam New Delhi since the year 1985-86.
26. Smt. Vimla Verma wife of the accused as stated above entered the witness box as DW2. She testified that she was owner of house no. RZ 124 Raj Nagar, Palam and used to receive rent of the house. During cross examination, she has stated that construction of two rooms was made in the year 1986. The accused as DW5 categorically stated that in the year 1986 initially built portion was let out @ Rs.800/- per month plus electricity charges. He further deposed that late Shri MM Sharma was the tenant in the premises from 1986 to 1996 and the rent was increased by Rs.100/- every year. This part of the sworn testimony of the accused was not challenged during cross 21 examination. Under these circumstances, I accept that the initially built portion in the year 1996 was let out w.e.f. June 1986 @ Rs.800/- per month and the rent was increased by the wife of the accused by Rs.100/- annually. The rental income thus comes to :-
June 86 to May 87 Rs.800 x 12 Rs.9600.00 1987 to 1988 Rs.900x12 Rs.10800.00 1988 to 1990 Rs.1000x12 Rs.12000.00 1990 to 1991 Rs.1100x12 Rs.13200.00 1991 to 1992 Rs.1200x12 Rs.14400.00 1992 to 1993 Rs.1300x 12 Rs.15600.00 1993 to 1994 Rs.1400x 12 Rs.16800.00 1994 to 1995 Rs.1500x 12 Rs.18000.00 1995 to 1996 Rs.1600x 12 Rs.19200.00 June 1996 to April, Rs.1700x 11 Rs.18700.00 1997 Total Rs.148300.00
27. Now I turn to the assets as given in Annexure I filed with the report U/s. 173 Cr.PC. and how far the prosecution has been able to prove the same.
28. Item no.1, 3 and 4 pertains to the pre check period. The same therefore are not to be considered. As far as house hold goods mentioned at item no.2 are concerned search of the residential house 22 of the accused was conducted on 2.5.97 and the articles lying were observed in the Observation Memo Ex.PW30/C. It was stated by PW30 Inspector PK Gunwant that the valuation of the articles was done at the instance of the accused and the independent witness. This part of the testimony of the IO was also not challenged during cross examination. On a perusal of the memo Ex.PW30/C, it would be noticed that the year of acquisition and the valuation has been mentioned against each of the article. The articles received as gift as claimed by the accused have been described as such and their valuation has not been put. It may also be noticed that some of the articles were stated to have been acquired before the start of the check period. These have to be excluded in considering the assets acquired by the accused during the check period. I have added the assets acquired during the check period as mentioned in the observation memo with the help of learned Senior Public Prosecutor and the Learned Defence Counsel. The same comes to over Rs.61600/-. Since according to the prosecution house hold goods worth Rs.61600/- only were purchased during the check period and being a little less than actual calculation a sum of Rs.61600/- shall have to be added in the assets of the accused. Item no.5 is the construction raised at house no. RZ 124 Gali no.4 Raj Nagar Part I, Palam Colony, New Delhi in the name of Smt. Vimla Verma, wife of the accused. This is the most crucial and valuable asset alleged to be 23 acquired by the accused in the name of his wife. According to the report Ex.PW32/A and the case of the prosecution, the cost of construction on this house is Rs.13,48,710.00 . PW32 Shri NK Jain J.E. is the author of the valuation report Ex.PW32/A and most crucial witness examined by the prosecution to prove the valuation of the house. During cross examination, this witness admitted that there are 4 or 5 methods determining the value of the property which are Plinth Area Rate method, Detail Estimate on Item Rate Basis method, Rent Calculation method etc. Admittedly, the valuation Ex.PW32/A has been given by PW32 on the basis of Plinth Area Rate method. The witness reluctantly agreed that Plinth Area method is approximate method whereas Detail Itemwise method is the accurate method. The witness also admitted during his cross examination that he had mentioned in his report Ex.PW32/A that if detailed evaluation is required then the case may be referred to C.T.E. (C.V.C.). Thus, it is clear from the testimony of this witness that Plinth Area method is only an approximate method for determining the cost of construction of a building.
29. As per case of the prosecution and letter dated 12.10.98 written by Inspector PK Gunwant, IO of the case to PW32 Junior Engineer NK Jain, annexure 4 to the report Ex.PW32/A (these annexures were not placed on record by the prosecution alongwith 24 the report U/s. 173 Cr.PC. or even during the examination of PW32 JE NK Jain. It was only during recording of defence evidence that these documents were placed) the ground floor consisting of two rooms, kitchen, bathroom and a latrine were constructed during the period January 1986 to March 1986, whereas the rest of the building was constructed between 1996 and upto April 1997. The letter annexure 4 would further show that white washing, painting, fixing of railing in the staircase was done after May 1997 i.e. after the check period. However, what has been mentioned in the valuation report Ex.PW32/A is contrary to the case of the prosecution and the letter dated 12.10.98 (annexure 4) written by Shri PK Gunwant, Inspector to JE NK Jain. It has been stated in the report that construction of plot measuring 122.56 sq.mts. was raised in two phases i.e. two rooms, toilet, veranda etc. was constructed in the first quarter of 1986 just after the purchase of the property, but as per the information gathered from the neighbours the old structure constructed in 1986was dismantled and whole building was constructed as a frame structure between June 1996 to April, 1997. There is a mention that the copy of the statement of the neighbours has been attached. When PW32 NK Jain was cross examined, he stated that he has mentioned in his report Ex.PW32/A that he gathered the information from the neighbours as also from the IO. However, neither such statements have been filed in the court nor 25 any such neighbour was cited as a prosecution witness nor produced the court to show that the construction raised in 1986 was dismantled in 1996 and entire house was reconstructed. The IO nowhere states that the building was dismantled in the year 1996 and was reconstructed . Rather as stated by me herein above he has written a letter to the JE N. K.Jain dated 12.10.98 (annexure4), which has three parts; (i) ground floor with two rooms, kitchen, bathroom etc. was constructed between January to March, 1986 (ii) remaining building was constructed between January 1996 to April, 1997 and
(iii) white washing, painting on railing with staircase was done after May 1997. All this would show that PW32 NK Jain was not only acting like the IO himself, but he was also biased towards the accused. There is another document i.e. annexure 1 to the report Ex.PW32/A. In para 8© there is an addition and overwriting in hand whereby it was shown that the ground floor constructed in 1986 was dismantled and reconstructed. Moreover, the constructed area on the ground floor is mentioned as 114 sq.mts as against the total area of the plot to be 122.56 sq.mts The learned defence counsel has taken me through annexures 5,6 and 7, which would go to show that the figure of 114 sq.mts. in respect of ground floor and the figure of total covered area of 307 sq.mts. cannot be correct. There is another important aspect which goes to the root of this report for the purpose of taking the rates of Plinth Area The construction of the building 26 has been compared to Type IV Govt. Construction. The prosecution has not led any evidence to show as to what are the specifications provided by the govt. in a Type IV house and what was the construction available in this house. Similarly, apart from the rate of construction in a Type IV accommodation, the JE NK Jain has made an addition of extra item for a sum of Rs.1,11,307/-. The details of those extra items have not been given in the report Ex.PW32/A. There is another contradiction in the report Ex.PW32/A and the annexures which were filed by the prosecution during the cross examination of the accused as DW5. In Ex.PW32/A the building has been described as 2-1/2 storeyed residential building made up for RCC frames structure, whereas in annexure 1 (Ex.DW5/P1) what has been stated is that it is a partially framed and partially load bearing structure. Thus, it would be seen that there are number of flaws in the report Ex.PW32/2 and implicit reliance cannot be placed thereon. The prosecution has not led any other evidence to arrive at the value of the construction on house no. RZ 14 Raj Nagar, Palam Colony, New Delhi. On the other hand, the accused has proved on record a report Ex.DW1/Aby Shri Rajesh Bhatia, former Engineer in the Valuation Cell of Income Tax Department. He has taken the construction of the ground floor in three phases i.e. portion shown green in annexure E to the report in the year 1885-86, the portion shown red in the year 1990 and the portion blue on the ground floor 27 as also on the first and second floor to be constructed in the year 1996-97. He has given his report on the basis of detailed item wise rate basis. He has given the valuation of the portion constructed in the year 1996-97to be Rs.4,60,440/- . Even if an area of 12'x 9.6' and the area of the staircase about 8' x 12' is deemed to be constructed in the year 1996-97, which is the case of the prosecution . The cost of the construction may increase by Rs.30,000 to Rs.40,000/- . DW1 Shri Rajesh Bhatia has given a rebate of 10 per cent on account of self supervision and 10 per cent as son of the accused , who was a qualified Civil Engineer. The accused is entitled to this rebate of 10 percent for self supervision and 10 percent where the owner himself is a Civil Engineer on the basis of Prasanchand Surana .Vs. Assistant Commissioner of Income Tax (2001)76 ITD423 (Hyd.) On this analogy after adding Rs.40,000/- towards the construction of the staircase and the room as shown in red , which DW1 Shri Rajesh Bhatia had taken as constructed in the year 1990 and not included in the cost of construction, the cost of construction would come to Rs.5 lacs after giving rebate of 10 percent for self supervision and son of accused being qualified Civil Engineer, the cost of construction during the check period would come to about Rs.4 lacs. Since the valuation report Ex.PW32/A cannot be believed for the reasons stated herein above, I have no option except to rely on the report Ex.DW1/A prepared by DW1 28 Rajesh Bhatia which appears to be more authentic than the report of PW2 NK Jain.
30. Item no.6 in annexure I is the balance of Rs.33,169/- in SB Account no.8143 in Central Bank of India, Safdarjung Branch, New Delhi. The presence of this amount at the end of the check period has been proved by PW1 Shri Mahati Dhanra from Central Bank of India through Statement of Account Ex.PW1/A1 to A6. The statement of this witness has not been challenged, nor the genuineness of the statement of account Ex.PW1/A1 to A6 has been disputed by the accused. Thus, I accept this amount of Rs.33,169/- as the asset of the accused.
31. NSCs for Rs.15000/- Ex.PW2/A and Ex.PW2/B are proved by PW2 Shri Markandey Tewari. These have also not been disputed by the accused. Rather the same were taken back by the accused during the trial for the purpose of encashment.
32. Sony Music System valued at Rs.14700/- was observed at the residential house of the accused vide Observation Memo Ex.PW30/C as item no.2 on page 3. (This item has not been added in the household goods) Existence of this music system has not been disputed during the examination of PW30 Inspector PK Gunwant.
29Purchase of this music system has been proved by PW21 Shri Titu Sethi, vide cash memo Ex.PW21/A in the name of Smt. Vimla Verma, wife of the accused. Of course, the plea of the accused is that this music system was purchased by the wife of the accused and she had rental income. I have already held above that Smt. Vimla Verma wife of the accused was having rental income ranging from Rs.800/- pm to Rs.1700/- pm from June 1986 onward. Appropriate credit shall be given to it while computing the assets of the accused vis-à-vis his savings.
33. Turning to item no.9 Titan Watch for Rs.3050/-. Its cash memo Ex.PW10/A has been proved by PW10 Shri Ravinder Kumar Sethi. During cross examination, this witness admitted and a perusal of a cash memo would also show that the name of the purchaser has not been mentioned in Ex.PW10/A. At the time of preparation of the Observation Memo Ex.PW30/C, it is recorded against this item at serial no.9 at page 3 that the wrist watch was stated to be gifted at the time of engagement of the son. The IO was expected to investigate this aspect and must have made his inquiries. It is nowhere the case of the prosecution that the averments made at the initial stage and recorded in the observation memo were found to be false. In this view of matter, this amount of Rs.3050/- is liable to be deducted from the assets of the accused.
3034. Bajaj Chetak Scooter bearing no. DL 4SG 5425 valued at Rs.19736.00 is proved from the receipt Ex.PW16/A to be belonging to the accused. The file regarding registration of this scooter in the name of the accused was also admitted by the accused in his statement recorded U/s. 294 Cr.PC. and the document was proved as Ex.PE. Thus this amount is liable to be included in the assets of the accused.
35. Another scooter bearing no. DL 9S D1272 in the name of Manoj verma was also observed and the receipt for Rs.23669/- for purchase of this scooter in the name of Manoj Verma was proved as Ex.PW8/A. The ownership and possession of this scooter or that it was observed at the house of accused have not been disputed. The plea of accused is that this amount was gifted by Smt. Shakuntala Devi, his father's younger brother's wife. Said Smt. Shakuntala Devi had no son of her own and used to treat the accused as her own son. This question was put to PW30 Inspector PK Gunwant, who admitted that he might have recorded statement of Smt. Shakuntala Devi, who was aunt of the accused and a Principal in a Primary School to the effect that out of love and affection, she has given Bajaj Scooter to Manoj Verma, son of the accused. Nothing has been placed on record, nor it was stated by the IO that this statement of 31 Smt. Shakuntala Devi was found to be false or that she was not possessed of the means to purchase the scooter for Manoj Verma. In the absence of any investigation on this aspect, it shall be presumed that the accused has been able to account by pre-ponderance of probabilities that he himself had not invested any resources for purchase of this scooter. Thus scooter no. DL 9 SD 1272 for Rs.23669/- cannot be included in the assets of the accused.
36. No evidence worth the name was produced by the prosecution in respect of item no.12 and 13 i.e. balance in account no.S-282 in the name of accused in M/s. Hitkari Coop (T&C) Society Ltd. to the extent of Rs.1670/- or booking of any gas connection in the sum of Rs.950/- in the name of the daughter of the accused. These amounts therefore cannot be included in the assets of accused.
37. Recovery of cash of Rs.13499/- from the house of the accused at the time of the search has been proved by PW30 Inspector PK Gunwant and Observation Memo Ex.PW30/C. This part of the testimony of the IO was not disputed except that it was suggested to the IO that this amount was received as salary and honorarium by the accused. Since, salary of accused has been taken as income, this amount has to be added in the assets of the accused.
3238.Having established the assets possessed either by the accused or on his behalf by other family members, I turn to the expenditure incurred by the accused during the check period.
39. Item no.1 deals with the expenditure on the education of three children namely son Mukesh Verma and Manoj Verma and daughter Miss Meenu Verma. The prosecution claims that the accused has spent a sum of Rs.61945/- towards the fee to the various colleges for his son Mukesh Verma. Document D.6 in respect of the fee of Mukesh Verma in College of Engineering, Osmanabad amounting to Rs.39775/- for the period 3.7.90 to 13.8.93 was admitted by the accused vide his statement recorded on 2.12.04 U/s. 294 Cr.PC. Similarly document D95 fee for the period 1995-96 paid to Tulabhawani College of Engineering was admitted by the accused on 2.12.04 and proved as Ex.PC. The accused has examined himself as his own witness U/s. 315 Cr.PC. During cross examination he admitted that a sum of Rs.9500/- was paid as fee to the Academy of Computer Graphics in the year 1996. He however showed his ignorance as to who had paid the said amount. The accused was expected to know and disclose as to how this amount was paid and by whom. In a case U/s. 13(1)(e) of the Act the initial burden is on the prosecution to show the 33 assets or the expenditure by or on behalf of the accused. After discharge of burden, onus shifts on the accused to account for possession of the pecuniary resources. (See M.Krishna Reddy. Vs. State Dy.Supdt. of Police 1992 (4) SCC 45, State of Maharashtra. Vs. Pollonji Darabshaw Daruwalla, 1987 Supp. SCC 379). Thus, it is established that sum of Rs.61945/- was expended on the education of Mukesh Verma, son of the accused.
39. The fee paid for education of Manoj Verma to Green Fields Public School during the check period for the academic year 1990- 91 to 1992-93 Rs.2070/-, Rs.3310/- and Rs.3310/- respectively have been proved by PW31 Shri KP Singh, Principal of the School. Payment of sum of Rs.2442/- as the fee of Atma Ram Sanatan Dharam College, Dhaula Kuan for the assessment year 1995-96 and 1996-97 have been proved by PW13 Shri NL Jain vide letter Ex.PW13/A and details Ex.PW13/A1 and A2. These have not been disputed by the accused by putting any question in cross examination. Thus, it is established that a sum of Rs.11132/- was paid by the accused towards the school and college fees of his son Manoj Verma during the check period.
40. According to the case of the prosecution the accused has spent a sum of Rs.30390/- on education of his daughter Miss Meenu 34 Verma. This stands proved by PW7 Shri I.J. Kalucha, PW15 GV Nair , PW20 Dr.Ranjana Bhatia and PW31 Inspector PK Gunwant vide documents Ex,.PW7/A, Ex.PW15/A, Ex.PW20/A and Ex.PW31/A5. These expenses were not challenged during cross examination. Thus in my opinion the prosecution has established that a sum of Rs.103467/- was the expenditure incurred by the accused on the education of his three children.
41. Deposit of Rs.5,50,174.84p towards purchase of a DDA flat vide document D.16 was admitted by the accused and the document was taken to be proved as Ex.PD. Similarly payment of a sum of Rs.7764/- towards instalment to Delhi Cooperative Housing Finance Corporation as instalments of loan was proved by PW12 by Shri Samir Ishar Siddiqui vide document Ex.PW12/A1. The statement of this witness was not challenged during cross examination. These expenses are thus taken to be established by the prosecution.
42. It is the case of the prosecution that an amount of Rs.9861/- was the expenditure of the accused on the treatment of his wife Smt. Vimla Verma in Batra Hospital and for purchase of medicines. The bill Ex.PW5/A for Rs.7232.65p and receipts for amounts of Rs.5232/- and Rs.2000/- Ex.PW5/D and C have been proved by PW5 Kamlesh Kumar Issar. Similarly, cash memos regarding purchase of 35 medicines for a paltry amount of Rs.2547/- Ex.PW3/A , Ex.pW3/B, Ex.PW4/A, Ex.PW6/A, Ex.PW9/A, Ex.PW9/B and Ex.PW11/A have been proved by PW3 Shri Gurmit Singh, PW4 Shri Kuldip Kumar, PW6 Shri Ashok Kumar Mehta, PW9 Shri Rajinder Kumar Ahuja and PW11 Shri VV Sethi respectively. The accused has neither disputed the treatment nor the purchase of medicines during the cross examination of the above stated witnesses. The accused has however tried to set up a case that this amount was spent by his father's brother's wife Smt. Shakuntala Devi or by other relations whosoever was present in the hospital. It has been urged by learned defence counsel that this amount therefore cannot be taken as expenditure of the accused. Admittedly, the bills/receipts of the hospital as well as the cash memos regarding purchase of medicines were seized during the house search of the accused vide document Ex.PW30/B. It is improbable that a relation would purchase the medicines from his pockets and would still hand over the bills to the accused. Otherwise also it is not believable that the accused would not foot the hospital bill in respect of the treatment of his wife unless he was not having the means to pay the same, which is not the case of the accused. In these circumstances, I am not inclined to believe the defence version that this amount was spent by the aunt of the accused or any other relation. The total of the proved receipts and cash memos comes to Rs.9780/-. Thus, instead of Rs.9861/- an amount of Rs.9780/- is 36 liable to be included in the expenditure of the accused.
43. There was an expenditure of Rs.3279/- for consumption of electricity in respect of house no. 124, Gali no.4, Raj Nagar, Palam Colony, New Delhi. However, vide document Ex.PB produced by the prosecution an expenditure of Rs.2769/- only was proved. It is admitted case of the prosecution that the accused alongwith his family was residing at govt. flat no. MPT-471 Type III, Sarojini Nagar, New Delhi. I have already held above that this house was let out by the accused . Under these circumstances, it would be the liability of the tenant to pay the electricity charges and not the accused. Therefore, I am of the view that this amount cannot be added in the expenditure of the accused.
44. The expenditure on water and electricity in respect of govt. flat no. MPT 471, Type III Sarojini Nagar, New Delhi was proved as Rs.12,983/- by PW27 Shri Kamaljit Oberoi, LDC from NDMC, vide document Ex.PW27/A1 to Ex.PW27/A7. The authenticity of these documents has not been disputed during cross examination of this witness. Therefore, this amount is liable to be included in the expenditure of the accused.
3745. At item no.6, the prosecution has claimed that the accused must have spent a sum of Rs.7300/- towards the maintenance of scooter nos. DL 4 SD 5425 and DL 9SD 1272 registered in the name of the accused and his son Manoj Verma respectively. However, no evidence has been led by the prosecution as to what was the basis to arrive at this figure. In this connection a reference needs to be made to the statement of Pw14 Shri Ravinder Singh Accounts Officer of MTNL, who was examined by the prosecution to prove the salary of the accused. During cross examination this witness admitted that the accused was getting conveyance diary allowance. However, he could not say if he was being paid this allowance at the rate of Rs.230/- per month. The accused as his own witness testified that he was being paid the conveyance diary allowance @ Rs.230/- pm. Thus, in absence of any specific evidence being led by prosecution as to the amount spent on maintenance and fuel in respect of above stated two scooters, it would be reasonable to hold that conveyance diary allowance may be sufficient to take care of the fuel required by the accused. Thus this amount of Rs.7330/- cannot be added to the expenditure of the accused.
46. At item no.7 non verifiable expenditure towards household/kitchen expenses to the extent of Rs.91,777/- has been mentioned in Annexure III. I have already held above that the gross 38 salary of the accused during the check period was approximately was Rs.4,50,102/-. The net salary of the accused as mentioned in the charge sheet is Rs.2,75,331/-. Of course, on the basis of Sajjan Singh. Vs. State of Punjab, AIR 1964 SC 464, 30 per cent of net salary of the accused can be taken as non verifiable/kitchen expenses. Yet no definite evidence has been led by the prosecution to show that Rs.2,75,331/- was the net salary of the accused during the check period. However, taking Rs.4,50,102/- as the gross salary Rs.2,75,331/- may be assumed to be the net salary,(after deduction towards income tax , GPF, group Insurance payment to LIC etc) though the accused is entitled to some margin under this head for want of specific evidence led by the prosecution.
47. In the net result, the income of the accused is established to be :- INCOME 1 Net Salary of accused 1/90 to 4/97 Rs.2,75,331.00 2 Honorarium taken by accused Rs.14,400.00 3 Interest on account no.8143 in CBI Safdarjung Rs. 5881.75 Enclave.
4 Loans taken from DCHFC for purchase of DDA Rs.1,82,000.00 flat no.234 Sector 23 Pocket II Rohini New Delhi.
5 Loan taken from Sh. Kiran Pal Verma Rs.25,000.00 39 6 Loan taken from Smt. Chandra Kanta, w/o Shri Rs.25,000.00 Madan Lal.
7 Loan from DK Singh, SDO/MTNL/Nehru Place Rs.50,000.00 8 Loan taken from Balveer Singh Rs.30,000.00 9 Loan taken from Shri Jagveer Singh Rs.2,25,000.00 10 Loan taken from Shri Kiran Singh, SDO/MTNL Rs.40,000.00 11 Loan taken from Manak Chandra Verma Rs.30,000.00 12 Income from LIC Policy no.18091465 Rs.20,696.00 13 Final withdrawal from GPF account Rs.1,25,000.00 Thus total income of accused Rs.10,48,308.75
48. In addition , it is proved during trial that the accused has made a further withdrawal from GPF amounting to Rs.58,800/-. Moreover, the rental income of the wife of the accused from June 86 to April, 97 has been held by me above to be Rs.1,48,300/-. Thus, the total income of the accused and his wife comes to (Rs.1048306 + Rs.58800 + Rs.148300) = Rs.12,55,408/-.
4048. The expenditure that has been established by the prosecution is :-
EXPENDITURE 1 Expenditure on education of children.
(i) On the education of Sh.Mukesh Verma Rs.61,945.00
(ii)On the education of Ms. Meenu Verma, d/o Rs.31,960.00 R.G.Verma.
(iii) on the education of Manoj Verma, son of Rs.11,132.00 accused 2 Sh. RG Verma has deposited an amount for Rs.5,04,174.84 purchase of a DDA flat but this flat was not given to Shri Verma so this amount is being taken towards his expenditure during the check period.
Shri RG Verma has repaid an amount for DCHFC Rs. 7764.00 New Delhi 3 Smt. Vimla Verma was admitted in Batra Hospital, Rs.9861.35 New Delhi. Total amount expenditure other Treatment, Medicine and other 4 The total expenditure on electricity/water in Rs.3279.00 respect of house no. 124 Gali no.4 Raj Nagar, Palam Colony, New Delhi during the period of 1/90 to 4/97(Not to be included in the expenditure of the accused) 5 Expenditure on water and electricity charges paid Rs.12984.00 by accused for flat no,.MPT 471 Type II, Sarojini Nagar, New Delhi.
416 Expenses towards petrol consumption and Rs.7300.00 maintenance of scooter no. DL 4SG 5425 and DL 9SB 1272(not to be included for the reasons stated above).
7 Expenditure towards household/kitchen expenses Rs.91,777.00 Thus the total expenditure during the check Rs.7,78,176.79 period.
49. Assets proved to be acquired during the check period :-
ASSETS Construction on Plot no. RZ 124 Gali no.104,Raj Nagar, Rs.4,00,000.00 PT I,Palam Colony, New Delhi.
House hold items as per Observation Memo dated 2.5.97 Rs.61,600.00 Balance in SB Account no.8143, CBI, Safdarjung Rs.33,169.00 Branch, New Delhi.
NSCs in the name of accused Rs.15,000.00 Sony Music System Rs.14,700.00 Bajaj Chetak Scooter purchased in 1992 in the name of Rs.19,736.00 accused DL 4 SG 5425
Cash recovered during the search of house no. 471-MPT, Rs.13,499.00 Sarojini Nagar, New Delhi.
Thus the total assets acquired during check period are Rs.5,57,704.00 42
50.Thus the savings of the accused comes to :-
Rs.12,55,409,00 (income) - Rs.7,78,189.00 (expenditure) = Rs.4,77,229.00.
51. Thus, the pecuniary resources of the accused are Rs.5,57,704/- against savings of accused Rs.4,77,229/- . The accused is entitled to the benefit of of excess assets upto to 10 percent of total income on the basis of judgment "Krishnanand. Vs. State of MP, AIR 1977 SC 796 ". 10 percent of gross salary of the accused and rental income of the wife of the accused comes to Rs.60,000/-. Then the accused may have some savings before the start of the check period as he was in service for more than 15 years before the start of the check period. Moreover, I have only taken the tentative salary of the accused during the check period for want of specific evidence and as stated above some margin has to be given for the same.
52. Under the circumstances, it cannot be said that the pecuniary resources possessed by the accused are disproportionate to the known sources of income. The prosecution has failed to establish its case against the accused. The accused Ram Gopal Verma is, 43 therefore, entitled to be acquitted. I order accordingly. His bail bond stands cancelled and surety stands discharged.
53. File be consigned to record room.
Announced in open court.
dated: 13.4.2007 ( G.P.Mittal )
Special Judge: Delhi.