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[Cites 16, Cited by 0]

Delhi District Court

Cbi vs (1) Rakesh Chand Jain on 25 March, 2013

IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS 
 JUDGE (EAST) : SPECIAL JUDGE (CBI), KARKARDOOMA 
                               COURTS, DELHI


AC No.17/2008
Unique Case ID No.02402R0472402008

FIR No.RC­05(E)/2007/EOU­VII
Under Sec. 120­B read with 217/218 IPC
& 13(2) r/w Sec. 13(1)(d) of PC Act.

CBI                 Versus     (1)   Rakesh Chand Jain
                                     S/o Sh. Atter Sain Jain
                                     R/o B­11/8­B, Phase­III, Ashok
                                     Vihar, Delhi.

                               (2)   Devender Pal Sachdeva
                                     S/o Late Sh. Shanti Lal Sachdeva
                                     R/o B­17/G1, Dilshad Colony,
                                     Delhi.

                               (3)   Ashok Yadav
                                     S/o Late Sh. Ram Gen Yadav
                                     R/o 36/G­1, DLF Bhopra,
                                     Ghaziabad, U.P.

Date of Institution                  : 01.07.2008
Date of judgment reserved            : 13.03.2013
Date of judgment                     : 21.03.2013


AC No.17/2008                 CBI Vs. Rakesh Chand Jain etc.    Page 1 of 40
 JUDGMENT

The three accused persons, namely, Rakesh Chand Jain, Devender Pal Sachdeva and Ashok Yadav (all three on bail) have been sent to face trial by CBI, for the offences punishable under Section 120­B read with 217/218 IPC & 13(2) r/w Sec. 13(1)(d) of PC Act.

2 At the time of commission of the offence, accused Rakesh Chand Jain was posted as Assistant Engineer in Shahdara Zone, MCD, whereas accused Devender Pal Sachdeva and Rajesh Yadsav were the owner/builder of property bearing No.F­81, Dilshad Colony, Shahdara Zone, Delhi.

3 Briefly stating, the facts of the present case are that during the year 2006, Hon'ble Delhi High Court passed orders in WP(C) 4582/2003 against the Engineers and Officials of MCD regarding unauthorized construction and CBI was directed to probe their nexus with their hierarchy in Engineering Department, Builders as well as Politicians. As per orders of Hon'ble High Court in WP(C) No.4582/2003, a preliminary inquiry No.1/2006 was registered in CBI, EOU­VII Branch on 10.5.2006, on the basis of which the present case was got registered by Shri Satinder Bist, Inspector, CBI, on AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 2 of 40 30.8.2007. Shri Chander Bali, the then JE noticed unauthorized construction over plot No.F­81, Dilshad Colony and booked the same by making note in file No.62/B/UC/SH­North 2002 dated 16.7.2002. Being the AE of the area, it was the duty of accused Rakesh Chand Jain to demolish the property after it was being booked by the JE. But in order to facilitate his co­accused/builders and in criminal conspiracy with them, accused Rakesh Chand Jain intentionally had not taken any action against property No.F­81, Dilshad Colony and rather made false entry on 21.12.2004 in the record showing that the demolition action had been taken against the unauthorized construction over the said property. The builders accused with ulterior motives and in connivance with accused Rakesh Chand Jain, carried out unauthorized construction over the property in question in violation of sanctioned building plan. Moreover, after completing the construction over the property, the flats/shops over the same were sold to different persons.

4 During investigation, investigating officer DSP Anil Singh (PW38) seized file movement register Ex.PW2/A, unauthorized construction file Ex.PW2/B of property No.F­81, Dilshad Colony, Delhi, unauthorized construction file Ex.PW2/C of property No.B­1, AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 3 of 40 Dilshad Colony and demolition action taken register Ex.PW2/D vide production memo Ex.PW2/E and Ex.PW2/F. He had also seized the joining report Ex.PW2/G of accused Rakesh Chand Jain. PW1 SI C.M. Meena who was the member of the police team along with PW37 HC Mohd. Yasin during the demolition action dated 21.12.2004, has proved the DD entries as Ex.PW1/A and Ex.PW1/B regarding departure and arrival entry.

5 Sh. Bhopal Singh (PW3), Sh. Begh Raj (PW4), Sh.

Mohd. Yasin (PW5), Sh. Hargulal (PW6), Sh. Tejpal Singh (PW7), Sh. Abhay Raj (PW8), Sh. Ram Babu (PW9), Sh. Gyani (PW10), Sh. Suresh Kumar (PW11) and Sh. Tikam Singh (PW12), all Beldars of the MCD were the part of demolition team who assisted accused Rakesh Chand Jain in the demolition carried out on 21.12.2004. During investigation, IO seized building watch register Ex.PW17/A and other documents from the Head Clerk Sh. Birender Dutt (PW13) and Sh. Ved Pal (PW17), ZRO, House Tax Department, MCD vide memos Ex.PW13/A and Ex.PW17/B. 6 During investigation, IO recorded statements of owners of the flats/shops on the property in question viz. Smt. Savita (PW14), Sh. Ashok Kumar Satija (PW15), Sh. Uma Shankar Sahni AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 4 of 40 (PW16), Sh. Ritesh Kapoor (PW18), Sh. Vijay Kumar (PW19), Smt. Urmila Sharma (PW20), Sh. Raj Kumar Pandita (PW21), Sh. Nikhil Sharma (PW22), Sh. Manoj Kumar Mehra (PW23), Smt. Sumita Sachdeva (PW24), Sh. Manoj Kumar Bhatnagar (PW31) and Sh. Idresh Yadav (PW32). IO also recorded the statement of Sh. Ram Chand Balani (PW30) who had stated that property in question was purchased in the joint name of his mother­in­law and accused persons Devender Pal Sachdeva and Ashok Yadav. PW30 proved the death certificates of his parents­in­law as Ex.PW30/A and Ex.PW30/B. 7 IO also seized the sanctioned building plan file Ex.PW25/A of property in question. The property in question was got inspected from CPWD Engineers and MCD Engineers and Sh. V.K. Sharma (PW28) prepared inspection report Ex.PW25B. Photographs Ex.PW9/DA1 and Ex.PW38/B1 to B3 were taken at the time of inspection. Sh. S.P. Tanwar (PW25) prepared rough site plans Ex.PW25/C1 and C2 at the time of inspection. IO also prepared the list Ex.PW38/A of occupants of the property in question. 8 The sanction Ex.PW27/A for prosecution of accused Rakesh Chand Jain was accorded by Sh. K.S. Mehra (PW27). 9 After completion of the investigation, the challan was AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 5 of 40 put up in the court where the accused personswere supplied with the copies of the charge­sheet and the documents of the CBI. 10 The charge under Section 120B IPC read with Section 217 and 218 IPC and 13(2) read with Section 13(1)(d) of the P.C. Act was framed against all the accused persons. Accused Rakesh Chand Jain was also charged separately for offences punishable under Section 217 & 218 IPC and also under Section 13(2) read with 13(1)(d) of PC Act. All the accused persons pleaded not guilty to the charges framed against them and claimed trial. 11 The prosecution has examined 38 witnesses in support of its case. PW1 Sh. C.M. Meena and PW37 HC Mohd. Yasin were the police officials who assisted MCD demolition team. PW2 Sh. Satya Pal Singh was the Officer­Incharge (Building), Shahdara North Zone. PW13 Sh. Birender Dutt and PW17 Sh. Ved Pal were the officials of House Tax Department, MCD. PW3 Sh. Bhopal Singh, PW4 Sh. Begh Raj, PW5 Mohd. Yasin, PW6 Sh. Hargulal, PW7 Sh. Tejpal Singh, PW8, Sh. Abhay Raj, PW9 Sh. Ram Babu, PW10 Sh. Gyani, PW11 Sh. Suresh Kumar and PW12 Sh. Tikam Singh were the Beldars of MCD and were part of the demolition team. PW14 Ms. Savita, PW15 Sh. Ashok Kumar Satija, AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 6 of 40 PW16 Sh. Uma Shankar Sahney, PW18 Sh Ritesh Kapoor, PW19 Sh. Vijay Kumar, PW20 Smt. Urmila Sharma, PW21 Sh. Raj Kumar Pandita, PW22 Sh. Nikhil Sharma, PW23 Sh. Manoj Kumar Mehra, PW24 Smt. Sumita Sachdeva, PW29 Sh. Gile Ram, PW31 Sh. Manoj Kumar Bhatnagar, PW32 Sh. Idresh Yadav and PW33 Sh. Ashok Kumar Sahni were the owners of the flats/shops in the property in question. PW25 Sh. S.P. Tanwar, Assistant Engineer of MCD was the member of inspection team conducted by PW28 Sh. V.K. Sharma, Superintending Engineer, CPWD. PW26 Sh. Anil Kumar was the construction engineer of the property in question. PW30 Sh. Ram Chand Balani stated that his mother­in­law along with accused Devender Pal Sachdeva and Ashok Yadav purchased the property in question. PW34 Sh. Sanjay Malik was the Executive Engineer whereas PW36 Sh. Dharmender Kumar was the Administrative Officer of MCD. PW27 Sh. K.S. Mehra accorded sanction for prosecution of accused Rakesh Chand Jain. PW38 DSP Anil Singh was the investigating officer of the case.

12 The statements of all the accused persons were recorded under Section 313 Cr.PC. The accused persons have denied the present case against them. Accused persons opted to lead AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 7 of 40 evidence in their defence. Three witnesses have been examined by accused persons, namely, Sh. Birender Dutt (DW1), Sh. S.L. Meena (DW2) and Sh. Hemant Kumar (DW3).

13 I have heard Shri S. Krishna Kumar, learned PP for the CBI as well as learned defence counsels for accused persons. I have also carefully gone through their submissions and the record of the case.

Criminal Conspiracy 14 The first question arises for consideration is whether there was any criminal conspiracy between the accused persons for facilitating accused Devender Pal Sachdeva and Ashok Yadav in raising unauthorized construction and not taking any action by accused Rakesh Chand Jain despite booking the said unauthorized construction.

15 While dealing with criminal conspiracies, Hon'ble Apex Court in case titled K.R. Purushothaman vs. State of Kerala, AIR 2006 SC 35 observed that "to constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by an illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every details AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 8 of 40 of the conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind well­known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the accused is possible. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine qua non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two of more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 9 of 40 not per se constitute conspiracy."

16 In another case titled Shivnarayan Laxminarayan Joshi Versus State of Maharashtra 1980 SCC (Cri.) 493, the Hon'ble Supreme has also observed that "it is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design which has been amply proved by the prosecution as found as a fact by the High Court." 17 In the present case, it is alleged that accused Devender Pal Sachdeva and Ashok Yadav raised unauthorized construction on property No.F­81, Dilshad Colony, Delhi which was booked by the MCD authorities for raising unauthorized consideration and despite booking, accused Rakesh Chand Jain had not taken any demolition action on the said unauthorized construction and had made the false entry to the effect that the unauthorized consideration was demolished and thus caused pecuniary advantage to his co­accused persons.

18 It has been argued by Ld. counsel for accused Rakesh Chand Jain that there was no criminal conspiracy between accused AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 10 of 40 persons as this accused was the incharge of the demolition team only for 21.12.2004 and prior to that, he was not posted in the area, so there was no question of hatching any conspiracy by him with his co­ accused persons. It has further been argued that accused Devender Pal Sachdeva and Ashok Yadav had already sold the property in question prior to 21.12.2004 and they were not residing there. He has further argued that accused Rakesh Chand Jain had not caused any pecuniary advantage to his co­accused persons. Ld. Counsel for accused Devender Pal Sachdeva and Ashok Yadav has argued that CBI has not led any convincing evidence to prove that there was a prior meeting of minds between the accused persons for entering into a criminal conspiracy and that the witnesses examined by the CBI have not stated anything in this regard.

19 To prove its case, prosecution has examined PW2 Sh. Satya Pal Singh who deposed that he was Officer Incharge (Building), Shahdara North Zone, MCD during the period 16.09.2002 to 31.01.2010. During the year 2002­2003, there were 16 wards in Shahdara North Zone. Each ward was head by Junior Engineer and Assistant Engineer had two wards under him. He deposed that for booking of unauthorized constructions, the bookings are done by AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 11 of 40 Junior Engineer of the area and then FIR was prepared by him. The entry regarding FIR was entered in Misalband Register. The FIR was put up to the Assistant Engineer who used to issue notice under Section 343/344 of DMC Act to the owner/builder after opening the unauthorized construction file. The Junior Engineer used to serve the notice to the owner/builder and if he refused to take the notice, the orders for pasting the notice were passed by Assistant Engineer. After waiting for 3 days, demolition orders were passed directing the owner/builder to demolish the unauthorized construction within 6 days failing which demolition action should be taken by MCD. After waiting for six days, unauthorized construction file was sent to Office Incharge (Building). The Executive Engineer used to prepare the demolition programme. The concerned Junior Engineer collects unauthorized construction file from the Office­Incharge (Building) on the day fixed for carrying out demolition.

20 Witness PW2 further deposed that as per file movement register Ex.PW2/A at page 26, there is entry vide which unauthorized construction file No.62/02 of property No.F­81, Dilshad Colony was handed over to the accused Rakesh Chand Jain, AE (Building) on 21.12.2004 an was received back on that day itself. AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 12 of 40 This witness also identified the unauthorized construction file of the said property as Ex.PW2/B and after going through the same, witness stated that it contained FIR which was registered on 16.07.2002, notice under Section 344(1) and 343 of DMC Act, demolition notice dated 22.07.2002 and demolition order dated 31.07.2002. Witness further stated that at the back of demolition order, accused Rakesh Chand Jain gave his report dated 21.12.2004 to the effect that demolition action has been taken with the help of police of PS Seema Puri. This witness also identified the unauthorized construction file of property No.B­1, Dilshad Colony as Ex.PW2/C which was also handed over to accused Rakesh Chand Jain on which also he reported that demolition had been carried out. After going through the demolition action taken register Ex.PW2/D, witness (PW2) stated that accused Rakesh Chand Jain gave his report dated 21.12.2004 that the demolition action had been taken at B­1, Dilshad Colony and also at F­81, Dilshad Colony, whereas demolition action could not be taken in respect of other properties due to shortage of time. Witness (PW2) stated that he had been keeping Misalband Register, Unauthorized Construction Files, Demolition Action Taken Register and Unauthorized Construction Movement Register. He deposed that AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 13 of 40 vide production memo dated 27.09.2007 Ex.PW2/E, he handed over unauthorized construction files, one file movement register and one demolition action taken register to the CBI.

21 PW17 Sh. Ved Pal has deposed that during the year 2005, he was working as Zonal Inspector, House Tax Department, Shahdara North Zone, MCD. It was his duty to inspect the buildings under construction and on completion of same, to give notice under Section 126 of DMC Act. After going through the Building Watch Register for the year 2002­2003 Ex.PW17/A, witness stated that it was maintained by him. At page 7 of the said register Ex.PW17/A, witness identified the entry in respect of property No.F­81, Dilshad Colony. He deposed that the date wise details of the construction work carried out has been mentioned by him. He deposed that notice was issued u/s 126 of DMC Act to the builder. He further deposed that Building Watch Register Ex.PW17/A was handed over by him to CBI vide production memo Ex.PW17/B. 22 Similar statement has been made by PW13 Sh.

Birender Dutt, the then UDC­cum­Assistant Zonal Inspector, House Tax Department. He stated that as per record, construction work of property No.F­81, Dilshad Colony was completed upto third floor in AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 14 of 40 the year 2002. Inspection of the property was made by Sh. Ved Pal, Zonal Inspector (PW17). After going through the Building Watch Register for the period 2002­2003, witness admitted that the details of construction of property No.F­81, Dilshad Colony were entered in the register at page 7.

23 Witness PW25 Sh. S.P. Tanwar has deposed that during the year 2007, he was posted in MCD, Building Department, Shahdara North Zone. He deposed that as per file Ex.PW25/A of sanctioned building plan of property No.F­81, Dilshad Colony, the covered area of the plot ws 66% at ground floor, first floor and second floor and there was no sanction of any third floor. He further deposed that it was a residential plot and there was no sanction for any commercial activities including shops. At the time of inspection, actual building at the said plot was found to be comprising ground floor, first floor, second floor and third floor. Seven shops were also found on the ground floor. He further deposed that as per building bye laws, there could be only one dwelling unit on each floor, but during inspection it was found that there were more than one dwelling unit on each floor. The inspection report Ex.PW25/B was prepared by Sh. V.K. Sharma, Superintending Engineer of CPWD. PW35 Sh. AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 15 of 40 R.K. Gupta, the then Junior Engineer, MCD Shahdara North Zone has also stated that as per file Ex.PW25/A, application for sanction of building plan of property No.F­81, Dilshad Colony was filed. 24 PW28 Sh. V.K. Sharma corroborated the statement of PW25 Sh. S.P. Tanwar that they had inspected the property in question i.e. F­81, Dilshad Colony, Delhi and he prepared the report Ex.PW25/B. During inspection, they took measurement of the plot and building constructed thereon.

25 The contention of ld. Counsel for accused Rakesh Chand Jain is that he was posted as Assistant Engineer in the area on 21.12.2004 when demolition had to be carried out on the property in question i.e. F­81, Dilshad Colony, Delhi and prior to 21.12.2004, he was not posted in the said area, therefore, there was no occasion for him to enter into any criminal conspiracy with his co­accused. On behalf of accused Devender Pal Sachdeva and Ashok Yadav, it has been contended that they were not the owners of the said property as they had already sold out the flats/shops on the day when the alleged demolition had taken place.

26 On the other hand, ld. PP for CBI has contended that accused Rakesh Chand Jain despite booking of the property for AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 16 of 40 unauthorized construction, had not taken any demolition action on the same on 21.12.2004 and made false entry in the official record so as to facilitate his co­accused persons. He has further contended that though it has come on record that other co­accused had sold out the flats to independent buyers but in the official records, they remained owners/builders of the property in question. He has further contended that act of accused Rakesh Chand Jain of not taking any demolition action on the property shows conspiracy between accused persons due to which pecuniary advantage had been given to accused Devender Pal Sachdeva and Ashok Yadav.

27 As per Building Watch Register Ex.PW17/A, several visits were made by PW17 Sh. Ved Pal on property in question i.e. F­81, Dilshad Colony, Delhi. As per entry at page No.7, first visit was made on 27.7.2002 and then on 6.8.2002, 21.12.2002, 25.1.2003 and 2.3.2003. On 27.7.2002, it was observed that building had been constructed upto third floor and linter work on the third floor was going on. On 6.8.2002, it was found that the plastering work had begum. On 21.12.2002, plaster and finishing work was found on the building. On 25.01.2003, wooden work was found to be going and on 2.3.2003, the work was found to have finished. The entries in register AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 17 of 40 Ex.PW17/A show that construction work on the property had been going on from 27.7.2002 which completed on 2.3.2003. 28 The sanctioned plan file Ex.PW25/A of the property in question shows that application for sanction of building plan for carrying out construction was moved and vide sanction letter dated 6.10.1998, building plan was sanctioned by DDA. As per sanctioned building plan, the construction was allowed to be raised uptil 2nd floor. As per report Ex.PW25/B of PW28 Sh. V.K.Sharma, Superintendent Engineer, CPWD, the construction on the plot in question was raised upto 3rd floor. As per sanctioned building plan only 160% construction of the floor area ratio was allowed but as per report Ex.PW25/B of PW28 V.K.Sharma, construction of 400% of the floor area ratio was raised on the property in question which was deviation from the sanctioned building plan and was booked as unauthorized construction by MCD.

29 As per unauthorized construction file Ex.PW2/B of the property in question, deviation against sanctioned plan was found and the property was booked on 16.07.2002. A show cause notice dated 16.07.2002 was issued to the owner/builder of the property but no reply was received, therefore, order for issuance of demolition AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 18 of 40 notice was passed on 22.7.2002. On the back of demolition order, accused Rakesh Chand Jain made entry dated 21.12.2004 to the effect that demolition action had been taken with the help of PS Seema Puri. He also reported that parapet walls and grills were removed, demolition action took 1 ½ hours and charges be recovered. 30 PW1 Sh.C.M.Meena has falsified the report of accused Rakesh Chand Jain. PW1 has deposed that on 21.12.2004, he was posted as SI in PS Seema Puri. He along with other police officials assisted the demolition team of MCD headed by the Assistant Engineer R.C.Jain. On that day, demolition act B­1, Dilshad Colony was carried out and then they returned to the Police Station. DD entries Ex.PW1/A and Ex.PW1/B were made in this regard. He specifically stated that he along with his staff did not go to any other property including F­81, Dilshad Colony on that day and no demolition at the said property took place on that day. Statement of PW1 has been corroborated by PW37 HC Mohd. Yasin who has also stated that on 21.12.2004, he along with staff and MCD officials had gone to B­1, Dilshad Colony where some demolition was carried out. He also stated that no other demolition work was carried out on that day.

AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 19 of 40 31 PW3 Bhopal Singh, Belder of MCD has stated that as a Beldar in MCD, his duties were to demolish unauthorized construction. He specifically stated that on 21.12.2004, they had carried out demolition at B­1 Dilshad Colony but no demolition was carried out at F­81, Dilshad Colony on that day.

32 Mutatis mutandis PW­4 Beghraj, PW5 Mohd Yasin, PW6 Hargulal, PW7 Tej Pal Singh, PW8 Abhay Raj, PW10 Gyani, PW11 Suresh Kumar and PW12 Tikam Singh have also deposed on the lines of PW3 Bhopal Singh that no demolition on property No. F­81, Dilshad Colony was carried out on 21.12.2004. Statements of PW1, PW37 and PW 3 to PW12 falsified the report of accused Rakesh Chand Jain that any demolition on the property in question was carried out on 21.12.2004 which proves that a false report was prepared by him with a view to cause pecuniary advantage to his co­ accused persons.

33 PW14 Ms. Savita stated that she had purchased a flat in property No. F­81, Dilshad Colony from accused Ashok Yadav. PW18 Hitesh Kapoor has stated that he purchased shop No.3 in the said property and as per chain of documents, property was earlier in the name of accused Ashok Yadav. PW19 Vijay Kumar has stated AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 20 of 40 that he purchased flat No F­81/UG1, Dilshad Colony from accused Ashok Yadav, Devender Pal Sachdeva and one Smt. Manorama Kapoor vide sale deed dated 13.03.2003. Similarly PW20 Smt. Urmila Sharma has stated that she purchased a flat No. F­81/F­1, Dilshad Colony which was in the joint name of Manorama Kapoor and accused Ashok Yadav and Devender Pal Sachdeva. PW21 Raj Pandita has stated that he purchased that one flat in the property in question from accused Ashok Yadav. PW24 Smt. Sumita Sachdeva stated that she purchased flat No.S­II in property No. F­81 Dilshad Colony from accused Devender Pal Sachdeva and Ashok Yadav. 34 To prove the ownership of accused Ashok Yadav and Devender Pal Sachdeva on the property in question, prosecution also examined PW30 Ram Chand Balani who stated that he was a property dealer. Smt. Manorama Kapoor was his mother­in­law. He stated that plot No. F­81, Dilshad Colony was purchased and he negotiated in the deal. He stated that the said plot was purchased by his mother in law along with accused Ashok Yadav and Devender Pal Sachdeva. He admitted his signatures on the sale deed Ex.PW29/A. Sale deed Ex.PW29/A dated 23.04.2002 shows that plot No. F­81, Dilshad Colony was purchased in the joint name of Smt. Manorama Kapoor AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 21 of 40 and accused Ashok Yadav and Devender Pal Sachdeva. 35 As per the testimony of owners of flats/shops of property No. F­81, Dilshad Colony, accused Devender Pal Sachdeva and Ashok Yadav were the owners/ builders of the said property. This fact has also been corroborated from sale deed Ex.PW29/A as per which both these accused persons were owners of the property in question.

36 As per testimony of owners of flats/shops in property in question, accused Devender Pal Sachdeva and Ashok Yadav were the owners/builders of property in question. It has been established on record that both these accused persons raised unauthorized construction on the property in question and the said fact has been established from unauthorized construction file Ex.PW2/B which clearly shows that the unauthorized construction on the property in question was booked and demolition order of the unauthorized construction was passed.

37 As per unauthorized construction file Ex.PW2/B, accused Rakesh Chand Jain made entry that demolition action had taken place on 21.12.2004 on the property in question. As per statement of police officials PW1 and PW37 and also of Beldars of AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 22 of 40 MCD PW3 to PW12, no demolition had taken place on property in question on 21.12.2004, rather demolition had taken place on property No.B­1, Dilshad Colony only. Meaning thereby, no demolition action on the property in question was carried out on 21.12.2004 by accused Rakesh Chand Jain and the said fact has also been established from the report of CPWD Ex.PW25/B in which it was mentioned that on the day of inspection i.e. 23.04.2008, unauthorized construction which was originally booked by MCD was already in existence on that day.

38 As discussed above, it has been established that accused Devender Pal Sachdeva and Ashok Yadav were the owners/ builders of the property in question and raised unauthorized construction over it. It has also been established that the unauthorized construction raised on the property in question owned by them was booked by MCD, but accused Rakesh Chand Jain by abusing his official position did not take any demolition action on the unauthorized construction rather made false entry in the official record which establishes criminal conspiracy and prior meeting of minds between accused persons and in order to achieve the object of said criminal conspiracy, no demolition of the property in question AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 23 of 40 was carried out by accused Rakesh Chand Jain and thus he facilitated his co­accused persons, owners/builders of the property in question, in gaining pecuniary advantage. The prosecution has successfully established the charge of criminal conspiracy against all the accused persons.

39 Consequently, all the accused persons, namely, Rakesh Chand Jain, Devender Pal Sachdeva and Ashok Yadav are held guilty for the commission of offence punishable under section 120B IPC read with Section 218 IPC and 13(2) r/w 13(1)(d) of the P.C. Act.

False entry 40 Accused Rakesh Chand has also been charged for the offence punishable under Section 218 IPC for making false entry in the record. It is alleged against accused Rakesh Chand Jain that he made false entry in the official record of MCD to the effect that demolition on the property in question had been carried out but actually no demolition action had taken place.

41 Section 218 IPC provides punishment where public servant frames incorrect record or writing with intent to save person from punishment or property from forfeiture.

AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 24 of 40 42 In the present case, as discussed above in the former part of the judgment, it has been established on record that accused Rakesh Chand Jain made false entry in the official record i.e. unauthorized construction file Ex.PW2/B to the effect that he had carried out demolition of the unauthorized construction on the property No.F­81, Dilshad Colony, Delhi on 21.12.2004. But as per the statements of the police officials i.e. PW1 and PW37, no demolition action on the said property had been taken on 21.12.2004 by the MCD demolition team headed by accused Rakesh Chand Jain. Similarly, Beldars of the MCD i.e. PW3 to PW12 have also corroborated the testimony of police officials that no demolition action on the property in question was taken on 21.12.2004. 43 Thus, it has duly been proved by the prosecution that accused Rakesh Chand Jain made false entry in the official record of MCD with the intention to give pecuniary advantage to his co­ accused persons and with the intention to the save the property in question from being demolished for unauthorized construction. Consequently, accused Rakesh Chand Jain is held guilty for the offence punishable under Section 218 IPC.

AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 25 of 40 Offence under Section 217 IPC 44 Accused Rakesh Chand Jain has also been charged for the offence punishable under Section 217 IPC. As per the definition of Section 217 IPC, public servant who disobeys the direction of law with the intent to save person from punishment or property from forfeiture, shall be liable to punishment. 45 For bringing a guilt of an accused for the offence punishable under Section 217 IPC, the prosecution is required to satisfy that he has disobeyed the direction of law or the instructions of the MCD. In the present case, it has been alleged that despite booking the property in question, accused Rakesh Chand Jain had not followed the instructions by the MCD to take action as per their instructions of manual. But the fact remains that the prosecution has not produced the manual of instructions of MCD which could have said to have been not followed or violated by accused Rakesh Chand Jain. No witness has been examined by the prosecution to prove the instructions issued by MCD in this regard.

46 In the absence of any evidence either oral or documentary against accused Rakesh Chand Jain with regard to disobeying the directions of law, in my considered opinion, the AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 26 of 40 prosecution has failed to make out any ground in support of the charge framed. Consequently, accused Rakesh Chand Jain is entitled for acquittal for the offence punishable under Section 217 IPC. Criminal misconduct 47 It is alleged against accused Rakesh Chand Jain that being a public servant and while posted as Assistant Engineer, he abused his official position in not taking any demolition action on the unauthorized construction on the property of his co­accused persons Devender Pal Sachdeva and Ashok Yadav and thus caused pecuniary advantage to them.

48 Accused Rakesh Chand Jain has taken the defence that he had no concern with the property in question as prior to 21.12.2004, he was not posted in the ward in which the said property was situated. He has also taken the defence that he was posted in the said area only for one day i.e. on 21.12.2004. He has also taken the defence that demolition on the property was carried out by him and for the same letter for recovery of demolition charges was issued to the owner of the property.

49 On the other hand, Ld PP for the CBI has argued that accused Rakesh Chand Jain deliberately and intentionally did not take AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 27 of 40 any demolition action against the unauthorized construction and thus abused his official position, rather he prepared a false report of demolition.

50 To substantiate his defence, accused Rakesh Chand Jain has examined DW1 Sh. Birender Dutt who proved the office order dated 03.12.2004 to the effect that accused Rakesh Chand Jain was posted in Ward No.89 & 90, Shahdara North Zone. As per the said office order, Mr. T.N.S. Tolia was posted in Ward No.83 & 84. He has stated that on 21.12.2004, Mr. T.N.S. Tolia, Assistant Engineer was on casual leave. Copy of the attendance register has been proved by him as Ex.DW1/A. 51 DW2 S.L. Meena, Executive Engineer of MCD has deposed that as per office order dated 06.12.2004 Ex.DW2/A, Sh. P.N.S. Tolia was posted in Ward No.83 & 84 in the month of December, 2004, whereas accused R.C. Jain was posted in Ward No. 87 & 88. DW3 Sh. Hemant Kumar, the then LDC in MCD Shahdara North Zone has deposed that letter dated 31.01.2005 Ex.DW3/A was sent to the person for recovery of demolition charges in respect of property No.F­81, Dilshad Colony, Delhi.

52 So far as posting of accused Rakesh Chand Jain in the AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 28 of 40 area in which the property in question was situated is concerned, it is admitted case of the accused Rakesh Chand Jain himself that on the day of demolition i.e. 21.12.2004, he was posted as Assistant Engineer and was deputed with the work of demolition on the unauthorized construction on the property in question. He has taken the defence that demolition of parapet walls and grills was carried out for which letter for recovery was issued to the owner of the property. But as per the statements of the police officials (PW1 & PW37) and Beldars of MCD (PW3 to PW12), no such demolition action on the property in question was taken on 21.12.2004, which falsified the report of accused Rakesh Chand Jain. Even as per report Ex.PW25/B of PW28 Sh. V.K. Sharma, Superintendent Engineer of CPWD, no demolition on the property in question was carried out and on the date of their inspection, unauthorized construction was still existing. 53 Testimony of afore­mentioned owners of flats/shops in the property in question, as discussed above, also established that no demolition action had taken place by the MCD when they remained in possession of the flats/shops. It has also been established that accused Rakesh Chand Jain was the Incharge of the Ward in which property in question was situated on 21.12.2004. Unauthorized AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 29 of 40 construction file Ex.PW2/B of the property also shows that the property in question was booked for raising unauthorized construction being deviation from the original sanctioned plan. The FIR was registered for the same and show cause notices were issued to the builders/owners of the property and thereafater demolition notice was issued. Vide report dated 21.12.2004, accused Rakesh Chand Jain had reported that he had carried out demolition of the unauthorized construction, but it has been established that no demolition action was taken by him. In this way, accused Rakesh Chand Jain had made incorrect report that demolition action had taken place thus causing undue advantage to his co­accused persons by not demolishing the unauthorized construction. 54 Sanction order for prosecution of accused Rakesh Chand Jain has been proved on record by PW27 Sh. K.S. Mehra. This witness has deposed that during June 2008, he was posted as Commissioner, MCD, Delhi. In that capacity, he was competent to remove an officer uptil the rank of Assistant Commissioner. Vide order dated 19.06.2008 Ex.PW27/A, he granted sanction for prosecution of accused Rakesh Chand Jain after perusing the relevant documents which were put up before him and after independently AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 30 of 40 applying his mind.

55 This witness was cross­examined at length, but the defence has failed to put any dent to his testimony. 56 The accused Rakesh Chand Jain has failed to show anything that PW27 Sh. K.S. Mehra was not competent to accord sanction or the sanction accorded by him was without application of mind. On the other hand, it has duly been established that Sh. K.S. Mehra (PW27) was competent to grant sanction for prosecution of accused Rakesh Chand Jain and the sanction accorded by him was proper and valid.

57 In view of above discussion, prosecution has successfully established its case against accused Rakesh Chand Jain that by abusing his official position as public servant, he facilitated his co­accused persons Devender Pal Sachdeva and Ashok Yadav by not demolishing unauthorized construction on the property in question with a view to cause pecuniary advantage to them and thus committed a criminal misconduct. Therefore, accused Rakesh Chand Jain is held guilty under Section 13(2) read with Section 13(1)(d) of the P.C.Act.

AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 31 of 40 Conclusion 58 The prosecution has successfully established that there was criminal conspiracy between all the accused persons, object of which was to cause pecuniary advantage to accused Devender Pal Sachdeva and Ashok Yadav, who were the owners/builders of the property in question. It has been established that both accused Devender Pal Sachdeva and Ashok Yadsav were the owners/builders of the property bearing No.F­81, Dilshad Colony, Delhi and thereupon they raised unauthorized construction. It has also been established that the said property was booked for raising unauthorized construction raised, but despite its booking, accused Rakesh Chand Jain had not taken any demolition action on the same. 59 It has also been established that accused Rakesh Chand Jain had made false entries in the official record i.e. unauthorized construction file Ex.PW2/B that he carried out demolition on the property on 21.12.2004, but in view of testimony of owners of flats/shops of the property in question, MCD Beldars and police officials, no demolition on the property in question was carried out on 21.12.2004. In this way, it has been established that accused Rakesh Chand Jain by abusing his official position facilitated his co­ AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 32 of 40 accused persons Devender Pal Sachdeva and Ashok Yadav and caused pecuniary advantage to them and thus a criminal conspiracy between them has duly been established.

60 The prosecution has failed to make out any case against accused Rakesh Chand Jain to the effect that he disobeyed the instructions of the MCD or the directions of law to save his co­ accused persons from receiving punishment. No evidence or material has been placed on record by the prosecution to prove this charge against accused Rakesh Chand Jain.

61 Prosecution has successfully established that accused Rakesh Chand Jain prepared incorrect report in the official record i.e. unauthorized construction file Ex.PW2/B to the effect that he had carried out demolition on the property in question, but it has been proved that no such demolition had taken place. The defence taken by accused Rakesh Chand Jain is that he had carried out demolition and for the same, letter for recovery of demolition charges was issued to the owner of the property. Accused has failed to probabilise his defence that he actually carried out demolition of the unauthorized construction. It has been established on record that there was deviation from the sanctioned building plan in the property in AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 33 of 40 question, but accused Rakesh Chand Jain had not demolished the unauthorized construction on the property in question, rather made a false report in the official record. Police officials and the Beldars of MCD have also stated that no demolition on the property in question was carried out on 21.12.2004.

62 Prosecution has further successfully established that accused Rakesh Chand Jain was posted in the ward and was heading the demolition team on 21.12.2004 i.e. on the day of carrying out demolition where the property in question i.e. F­81, Dilshad Colony, Delhi was situated. Prosecution has further established that accused Rakesh Chand Jain while posted as Assistant Engineer had not taken any demolition action on the unauthorized construction over the property in question and thus abused his official position as a public servant thereby facilitating his co­accused persons Devender Pal Sachdeva and Ashok Yadav in raising unauthorized construction and causing pecuniary advantage to them.

63 In view of above discussion, evidence and material on record, all the accused persons, namely, Rakesh Chand Jain, Devender Pal Sachdeva and Ashok Yadav are hereby held guilty for commission of offence under section 120B IPC read with section218 AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 34 of 40 IPC and 13(2) read with section 13(1)(d) of P.C.Act. Accused Rakesh Chand Jain is also held guilty for commission of offence under section 218 IPC and under Section 13(2) read with section 13(1)(d) of P.C.Act as he used his official position being public servant and facilitated his co­accused persons in raising unauthorized construction and caused pecuniary advantage to them. Accordingly, all the accused persons are convicted for the abovesaid offences. 64 Accused Rakesh Chand Jain is acquitted for offence under section 217 IPC. 

Announced in the open Court                                              ( P.S. TEJI )
Dated: 21.03.2013                                            District & Sessions Judge (East)
                                                                    Special Judge (CBI)
                                                              Karkardooma Courts : Delhi




AC No.17/2008                   CBI Vs. Rakesh Chand Jain etc.               Page 35 of 40

IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS JUDGE (EAST) : SPECIAL JUDGE (CBI), KARKARDOOMA COURTS, DELHI AC No.17/2008 Unique Case ID No.02402R0472402008 FIR No.RC­05(E)/2007/EOU­VII Under Sec. 120­B read with 217/218 IPC & 13(2) r/w Sec. 13(1)(d) of PC Act. 

CBI                 Versus     (1)   Rakesh Chand Jain
                                     S/o Sh. Atter Sain Jain
                                     R/o B­11/8­B, Phase­III, Ashok
                                     Vihar, Delhi.

                               (2)   Devender Pal Sachdeva
                                     S/o Late Sh. Shanti Lal Sachdeva
                                     R/o B­17/G1, Dilshad Colony,
                                     Delhi.

                               (3)   Ashok Yadav
                                     S/o Late Sh. Ram Gen Yadav
                                     R/o 36/G­1, DLF Bhopra,
                                     Ghaziabad, U.P.

ORDER ON SENTENCE

I have heard Sh. R.K.Verma, Ld. Counsel for convict Rakesh Chand Jain, Sh. P.L.Behl ld counsel for convicts Devender AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 36 of 40 Pal Sachdeva and Ashok Yadav as well as Sh. S. Krishna Kumar, learned PP for the CBI on the quantum of sentence. 2 The learned PP for the CBI has submitted that the convicts have been held guilty for commission of criminal conspiracy. Convict Rakesh Chand Jain, being public servant, by misusing his official position caused pecuniary advantage to his co­ convicts by allowing them to raise unauthorized construction and not taking any action for demolition of unauthorized construction. He has further submitted that the convicts may be awarded maximum punishment prescribed under the law.

3 The learned counsel for convict Rakesh Chand Jain has submitted that the convict is 57 years old. He is having children and wife in the family to look after. It is further submitted that his daughters aged 25 and 21 old are of marriageable age; son of the convict is minor and is a student. He is having 86 years old ailing mother who is dependent upon the convict. The convict is the sole bread earner of the family and entire family is dependent upon him. He has never faced any departmental inquiry. There is no previous case or conviction of the convict. It is further argued that minimum sentence may be given to the convict keeping in view his familial AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 37 of 40 circumstances.

4 On behalf of convict Devender Pal Sachdeva, it is submitted that he is 56 years old and is a heart patient and suffering from chronic diabetes. Valve of heart of the convict is not functioning properly. He has suffered heart attack and is under treatment for the last about 5 years. Wife of the convict is also a heart patient and has been taking treatment. On behalf of convict Ashok Yadav, it has been submitted that he is 45 years old; he is sole earning member of the family. In his family, he has to look after his wife and 3 minor sons aged 18, 13 & 9 years old. The convict is suffering from triple vessel coronary artery disease and had suffered 3 heart attacks. He is under treatment of various hospitals. Ld. Counsel has filed the documents in support of ailment of convicts and of the wife of convict Devender Pal Sachdeva. Ld. Counsel has further submitted that keeping in view the heart ailment of convicts, they may not be given sentence of rigorous imprisonment and a lenient view may be taken while awarding sentence to them. 5 Vide judgment dated 21.03.2013, all the convicts, namely, Rakesh Chand Jain, Devender Pal Sachdeva and Ashok Yadav have been convicted under Section 120B IPC read with AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 38 of 40 Section 218 of IPC and 13(2) read with Section 13(1)(d) of P.C. Act. Convict Rakesh Chand Jain has also been convicted under Sections 218 IPC and under section 13(2) read with Section 13(1)(d) of the P.C. Act.

6 Considering the circumstances under which the offences were committed, convicts are sentenced as under :­

(i)All the convicts Rakesh Chand Jain, Devender Pal Sachdeva and Ashok Yadav are awarded sentence of three years rigorous imprisonment with fine of Rs.25,000/­ each for the offence punishable under Section 120B IPC read with Section 218 IPC and 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, all the convicts shall further undergo simple imprisonment for six months.

(ii) Convict Rakesh Chand Jain is awarded sentence of one year rigorous imprisonment with fine of Rs.25,000/­ for the offence punishable under Section 218 IPC. In default of payment of fine, convict shall further undergo simple imprisonment for three months.

(iii)Convict Rakesh Chand Jain is awarded sentence of three years rigorous imprisonment with fine of Rs.25,000/­ for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, convict shall further undergo simple imprisonment for six months.

AC No.17/2008 CBI Vs. Rakesh Chand Jain etc. Page 39 of 40 7 All the sentences of the convict Rakesh Chand Jain shall run concurrently. The convicts shall be entitled for the benefit of the provisions of Section 428 Cr.PC. Copies of the judgment and order on sentence be given free of cost to the convicts.

File be consigned to record room. 

Announced in the open Court                                              ( P.S. TEJI )
Dated: 25.03.2013                                            District & Sessions Judge (East)
                                                                    Special Judge (CBI)
                                                              Karkardooma Courts : Delhi




AC No.17/2008                   CBI Vs. Rakesh Chand Jain etc.               Page 40 of 40